Opinion

James A Fearson v. Department of the Army

Court: Merit Systems Protection Board
Filed: Jul 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES A. FEARSON, DOCKET NUMBER

Appellant, DC-3330-19-0742-I-1

DEPARTMENT OF THE ARMY, DATE: July 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James A. Fearson , Fayetteville, Georgia, pro se.

Karen Barrows , Esquire, Rock Island, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action under the Veterans Employment

Opportunities (VEOA). Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except to MODIFY the finding that

the appellant is not entitled to corrective action, we AFFIRM the initial decision.

BACKGROUND

The appellant timely applied for the position of Supervisory Logistics

Management Specialist, GS-14, under a vacancy announcement that the agency

posted on USA Jobs on April 6, 2018. Initial Appeal File (IAF), Tab 6 at 24.

The position, advertised under merit promotion procedures, was open to current

employees and others with status. Id. When the appellant was not selected, he

filed a complaint, the receipt of which was acknowledged by the Department of

Labor’s Office of the Assistant Secretary for Veterans’ Employment and Training

Service (VETS) on July 2, 2019. IAF, Tab 1 at 9. On July 24, 2019, the assigned

VETS investigator notified the appellant of the determination that the evidence

did not support his allegation that the agency violated his veterans preference

rights in connection with the selection, and that he could file an appeal with the

Board, id. at 11.

On appeal, the appellant identified himself as a preference eligible, id. at 7,

and sought corrective action, arguing that the agency’s failure to promote him to

the GS-14 position resulted from a flawed process, id. at 5. He requested a

hearing, id. at 2.

The administrative judge issued an order on VEOA jurisdiction and notice

of proof requirements. IAF, Tab 3. The appellant’s reply was nonresponsive.

IAF, Tab 4. The agency moved that the appeal be dismissed for lack of

jurisdiction on the basis that the appellant did not show that he was denied the

right to compete under 5 U.S.C. § 3304(f)(1) because veterans’ preference rights

do not attach to selections made under the merit promotion process. IAF, Tab 6.

In a decision based on the written record, 2 the administrative judge first

found that the appellant established the Board’s jurisdiction over his claim.

IAF, Tab 12, Initial Decision (ID) at 2-4. She then found that he did not show

that the agency violated his veterans’ preference rights by obstructing his right to

compete for the position at issue because veterans’ preference does not apply

when an agency fills a position under the merit promotion process, ID at 4-5,

and she therefore denied the appellant’s request for corrective action. ID at 2, 6.

The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition. PFR File, Tab 3.

ANALYSIS

The parties do not dispute that the vacancy announcement at issue solicited

applications under the merit promotion process, that is, from within the agency’s

workforce and from applicants outside the agency who have status in the

competitive service, such as competitive service employees at other agencies or

preference eligible veterans. Joseph v. Federal Trade Commission, 505 F.3d

1380, 1381 (Fed. Cir. 2007); IAF, Tab 6 at 24. In contrast to the open

competition type of selection process, veterans’ point preferences do not apply in

The administrative judge found that a hearing was not required based on 5 C.F.R.

§ 1201.23(b) and Board case law, Williamson v. U.S. Postal Service, 106 M.S.P.R. 502,

¶ 8 (2007) (finding that an administrative judge may deny a hearing request in a VEOA

case when there is no genuine dispute of material fact and one party must prevail as a

matter of law). ID at 1, 2 n.1.

the merit promotion process, Joseph, 505 F.3d at 1382; rather, preference eligible

applicants and certain veterans “may not be denied the opportunity to compete”

for such vacancies. 5 U.S.C. § 3304(f)(1).

The appellant in this case was an agency employee, a GS-13 Facility

Operations Specialist, when he applied for the position at issue, IAF, Tab 1 at 1,

7, seeking a promotion, id. at 5. In Kerner v. Department of the Interior,

778 F.3d 1336 (Fed. Cir. 2015), our reviewing court, upon consideration of the

legislative history of the VEOA, held that § 3304 does not apply when a veteran

or preference eligible applicant is already employed in Federal civil service.

Id. at 1338-39. We find, therefore, based on the precedent set forth in Kerner,

that the appellant failed to show that he was denied the opportunity to compete

for the position because of his status as a current Federal employee, and that, for

that reason, he is not entitled to corrective action.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 below 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

Since the issuance of the initial decision in this matter, the Board may have 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.

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.

(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 that 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

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (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:

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. 4 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).

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.

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