Joseph Early v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH D. EARLY, DOCKET NUMBERS
Petitioner, CB-1205-17-0011-U-1
CB-1205-18-0020-U-1
v.
OFFICE OF PERSONNEL
MANAGEMENT, DATE: April 4, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph D. Early, Pittsburgh, Pennsylvania, pro se.
Julie Ferguson Queen, Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The petitioner requests that we review 5 C.F.R. § 302.101(c)(8), a provision
of an Office of Personnel Management (OPM) regulation that exempts attorney
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
positions from certain appointment procedures, and 5 C.F.R. § 335.103, an OPM
regulation governing agency merit promotion plans. The two petitions present
similar issues related to veterans’ preference requirements, and therefore we
JOIN them for consideration. See 5 C.F.R. § 1201.36(a)(2) (joinder occurs when
one person has filed two or more appeals and they are united for consideration).
For the reasons set forth below, we DENY the petitioner’s request s because they
do not meet our discretionary review criteria.
BACKGROUND
¶2 The petitioner is a preference-eligible veteran who applied, but was not
selected, for excepted-service attorney positions with the Department of Veterans
Affairs (VA). In his first petition, Early v. Office of Personnel Management,
MSPB Docket No. CB-1205-17-0011-U-1, Request File (0011 RF), Tab 1, he
challenges the validity of 5 C.F.R. § 302.101(c)(8). That provision states the
following:
Positions exempt from appointment procedures. In view of the
circumstances and conditions surrounding employment in the
following classes of positions, an agency is not required to apply the
appointment procedures of this part to them, but each agency shall
follow the principle of veteran preference as far as administratively
feasible and, on the request of a qualified and available preference
eligible, shall furnish him/her with the reasons for his/her
nonselection. Also, the exemption from the appointment procedures
of this part does not relieve agencies of their obligation to accord
persons entitled to priority consideration (see § 302.103) their rights
under 5 U.S.C. 8151:
...
(8) Attorney positions . . . .
5 C.F.R. § 302.101(c)(8).
¶3 The petitioner contends that section 302.101(c)(8) “unlawfully purports to
exempt agencies from complying with veterans’ preference requirements when
hiring for attorney positions.” 0011 RF, Tab 1 at 2, 5. He primarily focuses on
3
two requirements: the application of preference points when attorney applicants
are scored and ranked, and the rights afforded to preference-eligible candidates
when a hiring agency decides to “pass over” him or her in favor of a
nonpreference-eligible candidate. See 0011 RF, Tab 9 at 5 (alleging that the VA
“does not add points to an applicant’s unassembled examination score nor does
OPM require any sort of pass over procedures”). OPM responds that the Board
should deny the request because the petition does not meet the Board’s prudential
criteria for review. 0011 RF, Tab 8 at 21. 3 In particular, OPM points out that the
Board’s reviewing court, the U.S. Court of Appeals for the Federal Circuit, has
upheld the validity of 5 C.F.R. § 302.101(c)(8) in two precedential opinions,
Patterson v. Department of the Interior, 424 F.3d 1151 (Fed. Cir. 2005), and
Jarrard v. Department of Justice, 669 F.3d 1320 (Fed. Cir. 2012). Id. at 12. In
his reply, the petitioner asserts that Patterson and Jarrard are distinguishable.
0011 RF, Tab 9 at 5-9.
¶4 In his second request for regulation review, the petitioner challenges the
simultaneous use of the competitive examination process and a merit promotion
plan for a single position. Early v. Office of Personnel Management, MSPB
Docket No. CB-1205-18-0020-U-1, Request File (0020 RF), Tabs 1, 9. OPM’s
regulation at 5 C.F.R. § 335.103 authorizes agencies to devise and utilize merit
promotion plans “to insure a systematic means of selection for promotion
according to merit.” 5 C.F.R. § 335.103(a). 4 The petitioner contends that the
regulation violates veterans’ preference requirements by (1) not following the
rule that an agency must select from among the top three applicants on the
register corresponding to that position; (2) permitting agencies to select
3
When referring to pleadings filed electronically, the Board cites to the
computer-generated page numbering.
4
In his reply, the petitioner states that he is also challenging 5 C.F.R. § 335.102, which
delineates an agency’s authority to promote, demote, or reassign its employees, and
5 C.F.R. § 211.102(d)(6), which states that “veterans’ preference does not apply . . . to
in-service placement actions such as promotions.” 0020 RF, Tab 9 at 4.
4
candidates from more than one certificate of eligibles; (3) bypassing the rights
afforded to a preference-eligible veteran when an agency decides to “pass over”
him or her in favor of a nonpreference-eligible candidate; and (4) not following
alternative ranking and selection procedures. 0020 RF, Tab 1. OPM responds
that the Board should deny the request because the petition does not meet the
Board’s prudential criteria for review. 0020 RF, Tab 8. In particular, OPM notes
that the Federal Circuit upheld the validity of merit promotion plans in Joseph v.
Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007). 0020 RF, Tab 8 at
8-9. In his reply, the petitioner argues that Joseph did not address his argument
that an agency must select applicants from a single certificate. 0020 RF, Tab 9 at
4.
ANALYSIS
Jurisdiction
¶5 A petitioner generally establishes the Board’s jurisdiction under 5 U.S.C.
§ 1204(f) by describing in detail the reasons why an OPM regulation , either on its
face or as implemented, would require an employee to commit a prohibited
personnel practice; by specifically identifying the prohibited personnel practice at
issue; and by explaining the action the requester would like the Board to take.
5 U.S.C. § 1204(f)(2); 5 C.F.R. § 1203.11(b); see Di Jorio v. Office of Personnel
Management, 54 M.S.P.R. 498, 500 (1992). Here, the petitioner alleges that
5 C.F.R. § 302.101(c) “unlawfully purports to exempt agencies from complying
with veterans’ preference requirements when hiring for attorney positions,” in
violation of 5 U.S.C. § 2302(b)(11) 5 and (b)(12). 6 0011 RF, Tab 1 at 10-11.
5
Pursuant to 5 U.S.C. § 2302(b)(11), it is a prohibited personnel practice to “(A)
knowingly take, recommend, or approve any personnel action if the taking of such
action would violate a veterans’ preference requirement; or (B) knowingly fail to take,
recommend, or approve any personnel action if the failure to take such action would
violate a veterans’ preference requirement.”
6
Under 5 U.S.C. § 2302(b)(12), it is a prohibited personnel practice to “take or fail to
take any other personnel action if the taking of or failure to take such action violates
5
Similarly, the petitioner argues that 5 C.F.R. § 335.103 violates 5 U.S.C.
§ 2302(b)(11) and (b)(12) because it allows hiring agencies to circumvent certain
preference-eligible requirements. 0020 RF, Tab 1 (continuation sheet). The
petitioner’s allegations are sufficient to establish our regulation review
jurisdiction under 5 U.S.C. § 1204(f).
Exercise of Discretion
¶6 Our regulation review authority, however, is discretionary. See 5 U.S.C.
§ 1204(f)(1)(B) (providing that the Board grants a petition for regulation review
“in its sole discretion”); Clark v. Office of Personnel Management, 95 F.3d 1139,
1141 (Fed. Cir. 1996) (recognizing that Congress explicitly authorized the Board
to review directly any provision of any OPM rule or regulation and stated that the
decision whether to grant such review was in the Board’s “sole discretion”). To
guide us in deciding whether to exercise our discretion, we consider, among other
things, the likelihood that the issue will be timely reached through ordinary
channels of appeal, the availability of other equivalent remedies, the extent of the
regulation’s application, and the strength of the arguments against the validity of
its implementation. McDiarmid v. U.S. Fish and Wildlife Service, 19 M.S.P.R.
347, 349 (1984). Upon careful consideration of these factors, we decline the
petitioner’s requests for regulation review.
Ordinary Channels of Appeal
¶7 The issues raised by the petitioner could be timely reached through ordinary
channels of appeal. The Veterans Employment Opportunities Act of 1998
(VEOA) provides that a preference-eligible veteran “who alleges that an agency
has violated such individual’s rights under any statute or regulation relating to
veterans’ preference may file a complaint with the Secretary of Labor.” 5 U.S.C.
§ 3330a(a)(1); see Dean v. Department of Labor, 808 F.3d 497, 499 (Fed. Cir.
any law, rule, or regulation implementing, or directly concerning, the merit system
principles” set forth at 5 U.S.C. § 2301.
6
2015) (VEOA provides a remedy for a preference-eligible veteran who alleges
that an agency has violated his rights under any statute or regulation relating to
veterans’ preference). In fact, the petitioner has previously filed VEOA
complaints with the Department of Labor, and subsequent appeals to the Board,
when he was not selected for attorney positions with the VA. See 0011 RF, Tab 1
at 11-12. In his VEOA appeals, the petitioner alleged that the VA did not
properly award him the preference to which he is entitled under the Veterans’
Preference Act of 1944 (VPA), Pub. L. No. 78-359, 58 Stat. 387. Id. at 11. The
petitioner states that he voluntarily withdrew his VEOA appeals because in both
instances the VA appointed another preference-eligible applicant. Id.; see Early
v. Department of Veterans Affairs, MSPB Docket No. PH-3330-16-0343-I-1,
Initial Decision (July 20, 2016) (granting request to withdraw appeal); Early v.
Department of Veterans Affairs, MSPB Docket No. PH-3330-15-0318-I-1, Initial
Decision (July 22, 2015) (granting request to withdraw appeal). Nevertheless, the
petitioner’s VEOA appeals demonstrate that the issues he presents here may be
timely reached through ordinary channels of appeal. We note that, i n addition to
VEOA, the petitioner may be able to present his claims under the Uniformed
Services Employment and Reemployment Rights Act (codified as amended at
38 U.S.C. §§ 4301-4335) (USERRA) if he believes an agency did not select him
due to his prior military service. See Patterson, 424 F.3d at 1161.
Equivalent Remedies
¶8 In the context of a VEOA or USERRA appeal, the Board could consider the
petitioner’s claims regarding the validity of applicable OPM regulations. See,
e.g., Gingery v. Department of Defense, 550 F.3d 1347, 1354 (Fed. Cir. 2008)
(holding that 5 C.F.R. § 302.401(b) is invalid because it does not give effect to
the unambiguously expressed intent of Congress as expressed in the VPA).
Because VEOA and USERRA provide a procedure for the petitioner to contest
7
both his nonselection and the validity of the challenged regu lations, we conclude
that equivalent remedies are available.
Extent of Challenged Regulations’ Application
¶9 We find that the third factor—the extent of the regulations’ application—
weighs in favor of review. The regulatory provisions challenged in MSPB
Docket No. CB-1205-17-0011-U-1 affect all preference-eligible applicants for
attorney positions in the excepted service, and those at issue in MSPB Docket No.
CB-1205-18-0020-U-1 concern applicants who apply for positions where a merit
promotion plan is used along with competitive examination. Therefore, both
petitions are broad enough to warrant our review. Cf. Brown v. Office of
Personnel Management, 91 M.S.P.R. 314, ¶ 5 (2002) (finding that the challenged
rule had “very limited application” because it applied only to “one installa tion of
one Federal agency”).
Strength or Weakness of Petitioner’s Arguments
¶10 As OPM notes, the strength or weakness of a petitioner’s arguments, by
itself, may be the dispositive factor. See 0011 RF, Tab 8 at 3 (citing Ward v.
Office of Personnel Management, 79 M.S.P.R. 623, 626 (1998); Senior Executives
Association v. Office of Personnel Management, 67 M.S.P.R. 643, 653-54
(1995)). Here, as the petitioner acknowledges, there are Federal Circuit decisions
that present obstacles to his arguments. 0011 RF, Tab 1 at 1, 6-11; 0020 RF, Tab
9 at 4-6.
¶11 The petitioner contends that 5 C.F.R. § 302.101(c) “unlawfully purports to
exempt agencies from complying with veterans’ preference requirements when
hiring for attorney positions,” in violation of 5 U.S.C. § 2302(b)(11). 0011 RF,
Tab 1 at 2, 5. He focuses on two veterans’ preference requirements: the
application of preference points when attorney applicants are scored and ranked,
and the rights afforded to a preference-eligible veteran when a hiring agency
decides to “pass over” him or her in favor of a nonveteran candidate. These
8
issues have been addressed in Patterson and Jarrard, precedential decisions
issued by the Federal Circuit, which is our reviewing court. See 5 U.S.C.
§ 7703(b)(1); Fairall v. Veterans Administration, 33 M.S.P.R. 33, 39 (decisions
of the Federal Circuit are “controlling authority on the Board”), aff’d, 844 F.2d
775 (Fed. Cir. 1987).
¶12 In Patterson, a case brought pursuant to VEOA and USERRA, the Federal
Circuit held that OPM has delegated authority from the President under 5 U.S.C.
§ 3302(1) to except attorney positions from the competitive service. 424 F.3d at
1155 n.4. The court held that 5 C.F.R. § 301.102(c)(8) (codified as (c)(9) at the
time of the decision) “represents a reasonable interpretation of how 5 U.S.C.
§§ 3309 and 3320 apply to attorney positions within the excepted service” and
that OPM’s positive factor test 7 was a reasonable way of following the principle
of veterans’ preference as far as administratively feasible in the case of a
preference eligible applying for an excepted-service attorney position. Id. at
1159-1160. The petitioner maintains that Patterson is not dispositive of his
“rating and ranking” claim because “the validity of the regulation was only
challenged in relation to 5 U.S.C. § 3309 and not in relation to 5 U.S.C. § 3318,
5 U.S.C. § 1104, or 5 U.S.C. § 1302, as I am doing here.” 0011 RF, Tab 1 at 6.
The court specifically noted, however, that OPM has the statutory authority and
responsibility to enforce veterans’ preference in the excepted service under
5 U.S.C. § 1302(c). Patterson, 424 F.3d at 1156. The court necessarily
considered 5 U.S.C. § 3318 because that provision applies to the excepted service
pursuant to section 3320. Id. at 1156-57. The petitioner states that the regulation
violates 5 U.S.C. § 1104 “for failing to set standards,” see 0011 RF, Tab 9 at 19,
but that argument also appears to be contradicted by Patterson, which effectively
7
OPM regulations provide that, when candidates for an excepted-service position are
evaluated without numerical rankings, the hiring agency must use the veterans’
preference as a “plus factor.” 5 C.F.R. § 302.201(b); see Patterson, 424 F.3d at
1158-59.
9
validates the “positive factor test” as the standard applicable to consideration of
preference-eligible applicants for excepted-service positions.
¶13 In Jarrard, a VEOA case, the Federal Circuit held that agencies filling
excepted-service attorney positions are exempt from the “pass over” provisions of
5 U.S.C. § 3318 and are not required to file written reasons with OPM and seek
OPM’s permission before passing over a preference-eligible candidate. 669 F.3d
at 1326. The petitioner faults the Jarrard court for relying on “misguided and
meritless” opinions from the Office of Legal Counsel (OLC) at the Department of
Justice that the petitioner believes “misstate facts and misinterpret law.” 0011
RF, Tab 1 at 7-8. The petitioner’s disagreements with the analysis in Jarrard,
including the adoption of OLC’s analysis, do not present strong arguments given
that Jarrard is binding precedent on the Board.
¶14 Similarly, with respect to 5 C.F.R. § 335.103, the Federal Circuit has held
that merit promotion procedures do not violate veterans’ preference rights.
Joseph, 505 F.3d at 1383-84. The petitioner states that Joseph did not address
whether a hiring agency is required to use a single certificate. 0020 RF , Tab 9 at
4. The petitioner asserts that an agency may not simultaneously use both merit
promotion and competitive examination to fill the same position. In Joseph, the
court noted that Joseph did not challenge the hiring agency’s “simultaneous use
of the open competition examination process (in which his veterans ’ ten-point
preference was recognized) and the merit promotion process (in which that
preference was not recognized) to fill a single position.” Joseph, 505 F.3d at
1383. But even if the issue was not squarely addressed in Joseph, it was decided
a year later in Dean v. Consumer Product Safety Commission, 548 F.3d 1370,
1373 (Fed. Cir. 2008). There, the court held that “[a]n agency’s simultaneous use
of the competitive process and the merit promotion process is not of itself a
violation of veterans’ preference.” Dean, 548 F.3d at 1373.
¶15 Taken as a whole, the McDiarmid factors weigh against review. The
likelihood that the issue will be timely reached through ordinary channels of
10
appeal, the availability of other equivalent remedies, and the existence of binding
Federal Circuit precedent persuade us not to exercise our discretion to review the
petitioner’s challenge to the validity of 5 C.F.R. §§ 302.101(c)(8) and 335.103.
McDiarmid, 19 M.S.P.R. at 349.
ORDER
¶16 Accordingly, the petitioner’s requests for regulation review are denied.
This is the final decision of the Merit Systems Protection Board in this
proceeding. Title 5 of the Code of Federal Regulations, section 120 3.12(b)
(5 C.F.R. § 1203.12(b)).
NOTICE OF APPEAL RIGHTS 8
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
8
The Board has updated the notice of review rights included in final decisions. As
indicated in the notice, the Board cannot advise which option is most appropriate in
any matter.
11
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and tha t such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
12
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
14
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.