Stephen W. Gingery v. Department of Defense

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 59Docket No. CH-3443-06-0582-C-2
Stephen W. Gingery,
Appellant,
v.
Department of Defense,
Agency.
July 28, 2014
Stephen W. Gingery, Macomb, Michigan, pro se.
Susan L. Lovell, Esquire, Fort Belvoir, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant petitions for review of a compliance initial decision that
denied his petition for enforcement of a final Board order. For the reasons set
forth below, we DENY the petition for review and AFFIRM the initial decision.
BACKGROUND
¶2 This matter, originally brought as a claim under the Veterans Employment
Opportunities Act of 1998 (VEOA), has an involved procedural history that
includes a 2008 decision by the U.S. Court of Appeals for the Federal Circuit
reversing a Board decision and remanding this matter to the Board, which in turn
2
remanded the case to the administrative judge. Gingery v. Department of
Defense, 550 F.3d 1347 (Fed. Cir. 2008); Gingery v. Department of Defense,
112 M.S.P.R. 306 (2009). In a remand initial decision, the administrative judge
found that the agency violated the appellant’s veterans’ preference rights and
ordered the agency to reconstruct the hiring process for the GS-0511-07/09
Auditor positions at issue in the appellant’s VEOA appeal. MSPB Docket No.
CH-3443-06-0582-M-1, Remand File, Tab 21, Remand Initial Decision at 2, 8-10.
The remand initial decision became the final decision of the Board when neither
party petitioned for review.
¶3 Pursuant to the remand initial decision, the agency reconstructed the
selection process and made the appellant a tentative offer of employment. MSPB
Docket No. CH-3443-06-0582-C-1, Initial Compliance File (C-1 ICF), Tab 3
at 8-10. A dispute then arose regarding the agency’s reconstruction process,
including the agency’s requirement that the appellant obtain a security clearance.
See C-1 ICF, Tabs 1, 3-5. In a compliance recommendation, the administrative
judge recommended that the appellant’s petition for enforcement be granted, but
she did not address the security clearance issue. C-1 ICF, Tab 9 at 7. In a
September 2012 decision, the Board found the agency in compliance and,
regarding the appellant’s claim that the requirement that he obtain a security
clearance was improper, the Board specifically held that “successful completion
of a security background check was a requirement of the [Auditor] position at the
time the appellant would have been selected.” MSPB Docket No. CH-3443-06-
0582-X-1, Final Order at 11 (Sept. 18, 2012).
¶4 Thereafter, the appellant filed the instant second petition for enforcement
asserting that the agency was in noncompliance because it was requiring him to
fill out the security clearance forms as of the date he completed them and not as
of the date he would have completed them had he been properly hired in 2006.
MSPB Docket No. CH-3443-06-0582-C-2, Initial Compliance File (C-2 ICF),
Tab 1 at 10-13. After affording the parties the opportunity to submit evidence
3
and argument, the administrative judge found in a June 10, 2013 compliance
initial decision that the agency was in compliance with the Board’s final order
and she denied the petition for enforcement. C-2 ICF, Tab 17, Compliance Initial
Decision (CID) at 4-9.
¶5 The appellant petitions for review of the compliance initial decision in
which he reiterates the argument he made below. 1 PFR File, Tab 1 at 8-11. The
agency responds in opposition to the petition for review and the appellant replies
to the agency’s response. PFR File, Tabs 7, 8.
ANALYSIS
¶6 As set forth above, the Board previously found that the agency properly
could require the appellant to successfully complete a security background check
because it was a requirement imposed on all selectees for the Auditor position
and was a requirement for the position at the time of the initial veterans’
preference violation. 2 See Gingery v. Department of Defense, MSPB Docket No.
1
The appellant’s petition for review of the June 10, 2013 compliance initial decision
was filed 48 days after the July 15, 2013 filing deadline and thus appears to be untimely
filed, but the appellant asserts that he did not receive the compliance initial decision
until August 2, 2013, and thus his petition for review was timely filed. Petition for
Review (PFR) File, Tab 1 at 5; CID at 1, 9. In light of our decision in this matter, we
need not resolve the timeliness of the appellant’s petition for review. See Vigil v.
Department of the Army, 63 M.S.P.R. 384, 388 (1994) (finding that the Board did not
need to decide an issue where the decision would not affect the outcome of the appeal).
2
In his petition for review, the appellant argues that the agency failed to show that all
selectees were required to complete the background check process, PFR File, Tab 1
at 6-7, 11, but, in the 2012 decision addressing the appellant’s previous petition for
enforcement, the Board specifically found that a security background check was a
requirement imposed on all selectees for the Auditor position and was a requirement for
the position at the time of the initial veterans’ preference violation. Gingery v.
Department of Defense, MSPB Docket No. CH-3443-06-0582-X-1, Final Order at 11
(Sept. 18, 2012) (under the law of the case doctrine, a decision on an issue of law made
at one stage of a proceeding becomes a binding precedent to be followed in successive
stages of the same litigation).
4
CH-3443-06-0582-X-1, Final Order at 11 (Sept. 18, 2012). The record includes a
statement made under penalty of perjury from an agency Security Officer
explaining that information on the agency security form 3 “must be true, accurate,
up-to-date, and current as of the date that the form is completed.” C-2 ICF,
Tab 12 at 9. According to the agency Security Officer, this requirement is
indicated on the form and in the instructions. Id. The essence of the appellant’s
argument is that, because he should have been appointed to the Auditor position
in 2006 but for the agency’s violation of his veterans’ preference rights, he is
entitled to an exception to the agency’s usual pre-appointment process.
¶7 Where the Board finds a violation of an individual’s veterans’ preference
rights, the Board’s authority is to order the agency to restore the individual to the
status quo ante; in other words, to the same position that he would have been in
had the veterans’ preference violation not occurred. Lodge v. Department of the
Treasury, 107 M.S.P.R. 22, ¶ 16 (2007). Where, as here, the reconstruction of
the hiring process shows that the appellant would have been selected but for the
veterans’ preference violation, status quo ante relief means that the agency must
offer the appellant the original position sought or, as near as possible, a
substantially equivalent position. See Dow v. General Services Administration,
117 M.S.P.R. 616, ¶ 15 (2012).
¶8 Having met its obligation to offer the appellant in this matter the Auditor
position he originally sought, we discern no reason that the agency may not
subject the appellant to the same pre-appointment process as other employees.
In Dow, for example, the Board held that the agency in that case was permitted to
require a retroactively appointed individual to undergo the same suitability
3
The agency refers to the form as a Standard Form 86, which is a questionnaire for
national security positions.
5
investigation as it required of all agency employees. 4 Id., ¶ 14. This holding is
consistent with the well-established principle that status quo ante relief does not
entitle an appellant to be placed in a better position than he would have enjoyed
had the personnel action not occurred. See, e.g., Sink v. Department of Energy,
110 M.S.P.R. 153, ¶ 19 (2008). Accordingly, the administrative judge correctly
found that by offering the appellant an appropriate position and applying the
generally applicable pre-appointment process, the agency was in compliance with
the Board’s final order and properly denied the appellant’s petition
for enforcement.
ORDER
¶9 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
4
The Board made clear in Dow that the agency could not impose a background
investigation requirement on an individual appointed retroactively to a time when such
inquiries were not conducted for candidates for the position to which the individual was
appointed. Dow, 117 M.S.P.R. 616, ¶¶ 12-13. That holding has no application to the
instant case because, as discussed above, the background investigation requirement
imposed on the appellant was consistent with the requirement imposed on all candidates
for the Auditor position.
6
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.