Opinion

Darin Young v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARIN YOUNG, DOCKET NUMBER

Appellant, CH-3330-23-0258-I-1

DEPARTMENT OF VETERANS DATE: August 23, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Darin Young , Fairborn, Ohio, pro se.

Amber Groghan , Akron, Ohio, 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

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

dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal

for lack of jurisdiction. For the reasons discussed below, we GRANT the

appellant’s petition for review and AFFIRM the initial decision AS MODIFIED.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

We MODIFY the initial decision to find that the Board has jurisdiction over the

appeal and DISMISS the appeal for failure to state a claim upon which relief can

be granted.

BACKGROUND

¶2 On March 30, 2023, the appellant filed an initial appeal alleging, without

explanation, that he is a preference eligible with more than 11 years of Federal

service and that the agency violated his veterans’ preference rights. Initial

Appeal File (IAF), Tab 1 at 1, 3, 5. He subsequently submitted a letter from the

Department of Labor (DOL) dated March 15, 2023, advising him that DOL had

investigated his veterans’ preference complaint filed under VEOA and found that

he did “not meet the eligibility requirements” and that it had closed its file on the

matter. IAF, Tab 2. The letter provided the appellant with Board appeal rights,

and he filed the instant appeal. Id.; IAF, Tab 1.

¶3 The administrative judge thereafter issued an order informing the appellant

that there was a question as to whether his appeal was within the Board’s

jurisdiction, providing him with the requirements to establish Board jurisdiction

under VEOA, and directing him to file evidence and argument on that issue. IAF,

Tab 4. The appellant responded, explaining that he believed the agency violated

his veterans’ preference rights under “5 U.S.C. 2108, VA Handbook 5005/49, VA

Handbook on erroneous appointments, 38 U.S.C.101(10), Public Law 109-163,

Public Law 105-339, etc.” when he was removed from his job as a Housekeeping

Aid Supervisor with the agency on December 14, 2022. 2 IAF, Tab 7 at 4-5. The

appellant also alleged that the agency was “not lawful in the hiring of

non-preference eligible employees that are not veterans to restricted

housekeeping aid positions” and, as such, these are “erroneous appointments.”

Id. at 4.

The appellant explicitly noted that he was “not pursuing a claim for the same violation

under any other law, rule, or regulation.” IAF, Tab 7 at 5.

¶4 Without holding the requested hearing, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction, finding that the

appellant did not make nonfrivolous allegations of Board jurisdiction. 3 IAF,

Tab 11, Initial Decision (ID) at 1, 5. The administrative judge found that the

appellant’s “unadorned claim” that the agency violated his veterans’ preference

rights when it removed him from Federal service failed to state a claim under

VEOA. ID at 4. The administrative judge also concluded that the Board lacked

jurisdiction over the appellant’s claim that the agency has hired individuals who

did not have veterans’ preference because the appellant did not cite any authority

requiring the agency to hire only preference eligibles and because Board appeal

rights only extend to individuals alleging a violation of preference rights with

respect to themselves. ID at 4-5.

¶5 The appellant has filed a petition for review, arguing that the administrative

judge erred in finding that he did not nonfrivolously allege Board jurisdiction

over his appeal and clarifying that he did not allege that the agency was required

to hire only preference eligibles and that he did not file an appeal on behalf of

any other person, group, or organization. Petition for Review (PFR) File, Tab 1.

The agency filed a response. 4 PFR File, Tab 3.

After the appellant’s response to the administrative judge’s jurisdictional order

discussed above, the administrative judge issued a supplemental jurisdictional order

providing the appellant with the applicable standards for claims under the Uniformed

Services Employment and Reemployment Rights Act of 1994 (USERRA) out of an

abundance of caution, and instructed him to make a nonfrivolous allegation of Board

jurisdiction if he wished to pursue a claim under USERRA. IAF, Tab 10. The appellant

did not respond.

The appellant has filed a petition for review in a separate individual right of action

(IRA) appeal before the Board. Young v. Department of Veterans Affairs, MSPB

Docket No. CH-1221-23-0180-W-1, Petition for Review File, Tab 1. Although the

agency filed a response to the appellant’s petition for review in this case, the content of

its response concerns the appellant’s IRA appeal. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in dismissing the appeal for lack of jurisdiction.

¶6 The Board has jurisdiction over two types of VEOA claims: (1) the denial

of a right to compete; and (2) the violation of a statute or regulation relating to

veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference

claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (“right-to-compete” claims); see

generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015).

Here, the appellant alleged a violation of a statute or regulation relating to

veterans’ preference. IAF, Tab 1 at 3, Tab 7 at 5. As the administrative judge

correctly explained, to establish Board jurisdiction over a veterans’ preference

VEOA claim, an appellant must: (1) show that he exhausted his remedy with

DOL; and (2) make nonfrivolous allegations that (i) he is preference eligible

within the meaning of VEOA; (ii) the action at issue took place on or after the

October 30, 1998 enactment date of VEOA; and (iii) the agency violated his

rights under a statute or regulation relating to veterans’ preference. ID at 3; see

Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶ 6 (2014),

aff’d, 818 F.3d 1361 (Fed. Cir. 2016). An appellant need not state a claim upon

which relief can be granted for the Board to have jurisdiction over a VEOA claim.

Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 6 (2008).

¶7 In this case, the administrative judge did not make explicit findings as to

each of the above jurisdictional requirements. ID at 2-4. It appears undisputed,

however, and the record reflects, that the appellant showed that he exhausted his

remedy with DOL and that he nonfrivolously alleged that the action at issue here,

his removal, took place after October 30, 1998. ID at 2-5; IAF, Tab 7 at 4, 6,

Tab 9 at 7-8, 11. We also find that the appellant nonfrivolously alleged that he is

a preference eligible within the meaning of VEOA because he declared under

penalty of perjury in his jurisdictional response that he is “a preference eligible

veteran with [3] years of active-duty service in the United States Army” and that

the agency has “noted [his] veterans’ preference in block 24 of [his] [Standard

Form-50].” IAF, Tab 7 at 3, 5; see also 5 U.S.C. § 2108(1)-(3) (defining veteran,

disabled veteran, and preference eligible); Clark v. U.S. Postal Service,

118 M.S.P.R. 527, ¶ 7 (2012) (defining preference eligible veteran); Badana v.

Department of the Air Force, 104 M.S.P.R. 182, ¶ 10 (2006) (noting that an

appellant need not prove that he is a preference eligible to establish Board

jurisdiction over a VEOA claim and finding that a Department of Veterans Affairs

disability rating constituted a nonfrivolous allegation that an appellant was

entitled to veterans’ preference); 5 C.F.R. § 1201.4(s) (defining nonfrivolous

allegation).

¶8 Regarding the final jurisdictional requirement, the administrative judge

found it unmet because the “appellant’s contention that his preference rights were

violated when he was [removed] from employment does not, without more,

plausibly state a claim under the VEOA.” ID at 4. We disagree. As the appellant

points out in his petition for review, he specifically stated in his jurisdictional

response that he believes that the agency violated his veterans’ preference rights

under “5 U.S.C. 2108, VA Handbook 5005/49, VA Handbook on erroneous

appointments, 38 U.S.C.101(10), Public Law 109-163, Public Law 105-339, etc.”

IAF, Tab 7 at 5; PFR File, Tab 1 at 5. The Board has held that, at the

jurisdictional stage, an appellant’s claim that the agency violated his veterans’

preference rights should be liberally construed. Elliott v. Department of the Air

Force, 102 M.S.P.R. 364, ¶ 8 (2006); Young v. Federal Mediation and

Conciliation Service, 93 M.S.P.R. 99, ¶¶ 6-7 (2002) (citing the legislative history

of VEOA for the proposition that it was intended to be a “user-friendly, yet

effective” redress mechanism for the violation of veterans’ preference rights),

aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Pro se petitioners are not expected to

frame issues with the precision of a common law pleading, and the Board has

even held that an appellant’s allegation, in general terms, that his veterans’

preference rights were violated is sufficient to meet the nonfrivolous allegation

standard. Elliott, 102 M.S.P.R. 364, ¶ 8; see Haasz, 108 M.S.P.R. 349, ¶ 7

(finding that the appellant’s allegation that the agency violated an unspecified law

relating to veterans’ preference was sufficient to meet the nonfrivolous allegation

requirement). As a result, we disagree with the administrative judge’s conclusion

on this point and modify the initial decision to find that the appellant

nonfrivolously alleged that the agency violated his rights under a statute or

regulation relating to veterans’ preference. Furthermore, because the appellant

also established the other jurisdictional requirements, we modify the initial

decision to find that the appellant established Board jurisdiction over his appeal. 5

Although the Board has jurisdiction over the appeal, it must be dismissed for

failure to state a claim upon which relief can be granted.

¶9 We nevertheless dismiss the appellant’s request for corrective action

because he has failed to state a claim upon which relief can be granted. An

appeal that is within the Board’s jurisdiction can be dismissed for failure to state

a claim upon which relief can be granted if the appellant cannot obtain effective

relief before the Board even if his allegations are accepted as true. Alford v.

Department of Defense, 113 M.S.P.R. 263, ¶ 11 (2010), aff’d, 407 F. App’x

458 (Fed. Cir. 2011). In appraising the sufficiency of an appeal, the Board will

not dismiss an action for failure to state a claim unless it appears beyond doubt

that the appellant can prove no set of facts in support of his claim that would

entitle him to relief. Id. Dismissal for failure to state a claim is appropriate only

if, taking the appellant’s allegations as true and drawing all reasonable inferences

in his favor, he cannot prevail as a matter of law. Id.

¶10 Below, the administrative judge placed the appellant on notice of his burden

to show a genuine dispute of material fact in order to receive a hearing. The

administrative judge stated in the jurisdictional order that, “[i]f the appellant

Although the appellant explains in his petition for review that he did not intend to

argue that the agency was required to hire only preference eligibles and clarifies that he

did not file his appeal on behalf of any other person, we agree with and find no reason

to disturb the administrative judge’s finding that the Board lacks jurisdiction over such

a claim. PFR File, Tab 1 at 7-8; IAF, Tab 7 at 4; ID at 4-5.

meets the burden of proving jurisdiction, he will be granted a hearing if he

requested one and shows that there is a genuine dispute of material fact that must

be resolved to determine whether the agency violated any of the rights discussed

above.” IAF, Tab 4. The administrative judge defined the terms “genuine” and

“material,” as well as the preponderant evidence standard. Id. at 8. On review,

although the appellant generally states that the initial decision contains erroneous

findings of material fact, none of his arguments concern the fact that the action at

issue he is raising is his removal from his position as a Housekeeping Aid

Supervisor in 2022. PFR File, Tab 1. As a result, we find that the appellant had

adequate notice of the standard and burden of proof he needed to satisfy to

receive a hearing. See Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 14

(2007).

¶11 As the administrative judge correctly pointed out, the Board has held that

veterans’ preference rules appear to apply only to hiring and retention during a

reduction in force. Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 15 (2009)

(citing 5 U.S.C. §§ 3308-3320, 3501-3504); Livingston v. Office of Personnel

Management, 105 M.S.P.R. 314, ¶ 15 (2007); ID at 4. The appellant has not made

any allegations of such circumstances here. The appellant has not identified, and

we are not aware of, any statute or regulation providing veterans’ preference to

removals in general. Accordingly, we find that the appellant’s claim is not one on

which corrective action under VEOA can be granted, and we dismiss the VEOA

claim, without the requested hearing, based on a failure to state a claim. See

Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 8 (2007) (finding that the

Board has the authority to decide a VEOA appeal on the merits, without a

hearing, when there is no genuine dispute of material fact and one party must

prevail as a matter of law).

NOTICE OF APPEAL RIGHTS 6

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

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:

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.

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. 7 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