Opinion

Eric Williams v. Department of Defense

Court: Merit Systems Protection Board
Filed: Feb 5, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC WILLIAMS, DOCKET NUMBERS

Appellant, DC-3330-18-0427-M-1

DC-3330-18-0427-C-1

v. DC-3330-18-0427-P-1

DEPARTMENT OF DEFENSE,

Agency.

DATE: February 5, 2025

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eric Williams , North Charleston, South Carolina, pro se.

Katherine Yourth , Esquire, and Daniel Moebs , Esquire, Richmond,

Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before

the effective date of Acting Chairman Kerner’s designation.

FINAL ORDER

The appellant filed petitions for review of the initial decisions, which

ordered the agency to reconstruct the hiring process in his remanded Veterans’

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Employment Opportunities Act of 1998 (VEOA) nonselection appeal and

dismissed his petition for enforcement and motion for damages as prematurely

filed. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of 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 petitions for review. Although the administrative judge

adjudicated these appeals separately below, we JOIN them on review because the

claims arise from the same nonselection, the facts are interrelated, and joinder

will expediate processing without adversely affecting the interests of the parties.

See 5 C.F.R. § 1201.36(b). We DENY the petitions for review and AFFIRM the

initial decisions, which are now the Board’s final decisions. 5 C.F.R.

§ 1201.113(b). We FORWARD the appellant’s compliance and damages claims

to the Board’s regional office for docketing as a petition for enforcement and a

motion for damages.

BACKGROUND

In February 2018, the appellant, a preference-eligible veteran, applied for a

contract specialist position, announcement number DLAAVN-18-10138029-DE,

with the agency’s Defense Logistics Agency (DLA). Williams v. Department of

Defense, MSPB Docket No. DC-3330-18-0427-I-1, Initial Appeal File (IAF),

Tab 5 at 19-23, 36-38, 45. As part of an online assessment questionnaire, he

indicated that he did not possess the specialized experience required to qualify for

the position. Id. at 19, 21. Because he selected that response, the online staffing

system automatically deemed him ineligible for the position, and DLA did not

consider the remainder of his application materials. Id. at 18, 24-38.

The appellant filed a VEOA appeal of his nonselection. IAF, Tab 1 at 5.

After the Board denied his request for corrective action, he sought review before

the U.S. Court of Appeals for the Federal Circuit (Federal Circuit). IAF, Tab 6,

Initial Decision at 2, 6; Williams v. Department of Defense, MSPB Docket No.

DC-3330-18-0427-I-1, Final Order at 2-5 (Aug. 26, 2022); Williams v.

Department of Defense, Case No. 22-2246, Notice of Docketing 5-14 (Fed. Cir.

Sept. 23, 2022), ECF No. 1. The Federal Circuit reversed the Board and found

that DLA violated the appellant’s VEOA rights. Williams v. Department of

Defense, No. 2022-2246, 2023 WL 3575987, at *1-2 (Fed. Cir. May 23, 2023). In

particular, it found that it was improper for the agency to rely exclusively on the

appellant’s responses to its automated staffing system in determining the

appellant was not qualified. Id. at *2. The Federal Circuit reasoned that, under

5 U.S.C. § 3311(2), the agency was required to assess the application materials he

submitted, which reflected that he did, in fact, have the required experience. Id.

It remanded the appeal for the Board “to craft appropriate relief.” Id. The Board,

in turn, remanded the appeal to the regional office. Williams v. Department of

Defense, MSPB Docket No. DC-3330-18-0427-M-1, Remand Appeal File (RF),

Tab 2 at 1.

The administrative judge issued a remand initial decision on January 31,

2024, ordering the agency to reconstruct the selection process for the contract

specialist position. RF, Tab 17, Remand Initial Decision (RID) at 5. The

appellant filed a petition for review of that decision on February 23, 2024.

Williams v. Department of Defense, MSPB Docket No. DC-3330-18-0427-M-1,

Remand Petition for Review (RPFR) File, Tab 1. He also filed a pleading seeking

enforcement of the remand initial decision and liquidated damages. RF, Tab 18

at 4-6. The administrative judge separately docketed the pleading as a petition

for enforcement (MSPB Docket No. DC-3330-18-0427-C-1) and a motion for

damages (MSPB Docket No. DC-3330-18-0427-P-1). The administrative judge

issued separate initial decisions finding that the appellant prematurely filed these

requests because the remand initial decision granting corrective action was not

yet final. See Williams v. Department of Defense, MSPB Docket No. DC-3330-

18-0427-C-1, Compliance File (CF), Tab 11, Compliance Initial Decision (CID)

at 1, 3; Williams v. Department of Defense, MSPB Docket No. DC-3330-18-0427-

P-1, Damages File, Tab 4, Addendum Initial Decision (AID) at 1, 3.

The appellant has filed a petition for review of the remand initial decision.

RPFR File, Tab 1. The agency has responded to the petition for review, and the

appellant has replied. RPFR File, Tabs 3-4. The appellant also filed identical

petitions for review of the initial decisions finding his compliance and damages

requests premature. Williams v. Department of Defense, MSPB Docket No.

DC-3330-18-0427-C-1, Compliance Petition for Review (CPFR), Tab 1;

Williams v. Department of Defense, MSPB Docket No. DC-3330-18-0427-P-1,

Damages Petition for Review (DPFR) File, Tab 1. The agency has filed separate

responses to the petitions for review in the two appeals. CPFR File, Tab 4; DPFR

File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant argues that the administrative judge abused her

discretion in denying discovery in his remanded appeal. RPFR File, Tab 1 at 5-6.

He also requests interim relief. Id. at 9-10. The appellant also alleges that he is

entitled to liquated damages because the agency’s original decision not to hire

him was the result of its willful failure to look beyond his responses to the online

questionnaire and because the agency took more than 20 days to reconstruct the

hiring process as required by the remand initial decision. Id. at 7-9; CPFR File,

Tab 1 at 5; DPFR File, Tab 1 at 5. He questions the integrity of the reconstructed

hiring process. RPFR File, Tab 1 at 4-5, 7; CPFR File, Tab 1 at 4-5; DPFR File,

Tab 1 at 4-5.

The administrative judge did not abuse her discretion when she denied discovery

in MSPB Docket No. DC-3330-18-0427-M-1.

The appellant argues that the administrative judge abused her discretion in

denying his requests to engage in discovery after the Federal Circuit reversed the

Board’s decision in the underlying appeal and remanded the case to the Board.

RPFR File, Tab 1 at 5-6; RID at 4 n.2; RF, Tab 15 at 2-4. An administrative

judge has broad discretion in ruling on discovery matters, and absent an abuse of

discretion, the Board will not find reversible error in such rulings. Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶ 71. Here, the appellant

requested discovery “regarding the hiring process for the contract specialist

position . . . to assist [him] in better understanding the hiring process and the

selection process.” RF, Tab 8 at 3. He further reasoned, both below and on

review, that he needed this information to ensure the agency properly

reconstructed the hiring process for the contract specialist vacancy at issue.

RF, Tab 12 at 4-5, Tab 14 at 4-6; RPFR File, Tab 1 at 7.

We discern no abuse of discretion. The Federal Circuit found that the

appellant prevailed in the claim at issue. Williams, 2023 WL 3575987, at *2.

The court remanded the appeal “for the Board to craft the appropriate relief.” Id.

VEOA requires the Board to do more than merely provide a remedy for a past

wrong; it mandates that the Board “shall order the agency to comply with” the

violated provisions and award compensation for any loss of wages or benefits

suffered by the individual by reason of the violation. Walker v. Department of

the Army, 104 M.S.P.R. 96, ¶ 18 (2006) (quoting 5 U.S.C. § 3330c(a)). In

addition, VEOA provides that the Board “shall award an amount equal to backpay

as liquidated damages” if it determines that the “violation was willful.” 5 U.S.C.

§ 3330c(a); Walker, 104 M.S.P.R. 96, ¶ 18. Therefore, the Board must craft a

remedy for a veterans’ preference violation that (1) allows the appellant to

compete under merit system principles for the position; (2) allows the Board to

determine whether the appellant suffered any loss of wages or benefits by reason

of the violation; and (3) assuming that the Board finds that the violation was

willful, allows the Board to determine whether the appellant might be entitled to

back pay for the purposes of awarding liquidated damages. Lodge v. Department

of the Treasury, 107 M.S.P.R. 22, ¶ 14 (2007). Reconstruction of the selection

process is the appropriate remedy that allows the Board to make the necessary

determinations regarding the scope of relief. Id.

The discovery requested by the appellant concerned the agency’s

compliance with an order to reconstruct the hiring process. RF, Tab 15 at 2-4.

However, no such order had yet been issued. Id. at 3. The administrative judge

properly advised the appellant that once she ordered the reconstruction, he had a

right to file a petition for enforcement, in which he could renew his request for

discovery regarding the agency’s compliance. Id. at 3-4. We find that the

appellant has shown no error by the administrative judge regarding this discovery

ruling.

Additionally, even if the administrative judge abused her discretion with

respect to her rulings below, the appellant must show how that error affected the

result reached in his appeal. Vores v. Department of the Army, 109 M.S.P.R. 191,

¶ 14 (2008), aff’d per curiam, 324 F. App’x 883 (Fed. Cir. 2009).

An adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision. Id., ¶¶ 14-15 (determining

that the appellant failed to show that the administrative judge abused his

discretion by not extending the discovery period when the appellant failed to

show how the information he sought would have affected the administrative

judge’s finding that the Board lacked jurisdiction over the appeal). It is

undisputed that the agency has completed the reconstruction process and offered

the appellant the contract specialist position, which he has accepted. RPFR File,

Tab 3 at 7-8; CF, Tab 8 at 187-89; CPFR, Tab 1 at 5. Accordingly, we conclude

that the appellant has shown no basis upon which to disturb the initial decision.

The appellant was not entitled to interim relief.

The appellant also contends that he is entitled to interim relief. RPFR File,

Tab 1 at 9-10. Here, the administrative judge did not address interim relief in the

initial decision. RID at 5. Generally, when an initial decision is silent on the

issue of interim relief, the appellant becomes entitled to interim relief by

operation of statute. Stewart v. Department of Transportation, 2023 MSPB 18,

¶ 10. However, for the reasons set forth below, we find that interim relief was

not appropriate in this case.

The Board has previously declined to address whether interim relief is

appropriate in a VEOA appeal. See Scharein v. Department of the Army,

91 M.S.P.R. 329, ¶ 5 n.2 (2002), aff’d per curiam, No. 02-3270, 2008 WL

5753074 (Fed. Cir. Jan. 10, 2008). We need not resolve that issue here because

we find that even if interim relief might be available in some VEOA appeals, it is

not appropriate here. It is a fundamental element of interim relief that the

appellant be reinstated with pay effective as of the date of the initial decision. Id.

However, the Board has found that there are circumstances in which it is

inappropriate to order interim relief. Id. In particular, the Board has found

interim relief inappropriate where it is clearly impractical or is outside the scope

of the Board’s authority to provide the relief ordered. Id. We find such to be the

case here. At the time that the initial decision was issued, neither the Board nor

the agency had determined that the appellant was entitled to the contract

specialist position at issue. Therefore, it was not practical to order the agency to

place him in the position pending its reconstruction of the hiring process.

We agree with the administrative judge’s decision to deny the appellant’s petition

for enforcement and motion for damages as prematurely filed.

The appellant filed a motion of “enforcement,” which the administrative

judge docketed as two separate appeals and dismissed as prematurely filed.

RF, Tab 18. On review, the appellant does not explicitly address the dismissal of

his petition for enforcement and motion for damages or address the administrative

judge’s finding that the remand initial decision is not yet final. Instead, he

generally expresses confusion over why the administrative judge has ordered the

agency to reconstruct the hiring process without overseeing the agency’s

compliance and repeats that he believes he is entitled to damages for the agency’s

“willful” actions. CPFR File, Tab 1 at 4-5; DPFR File, Tab 1 at 4-5. 2

The record reflects that the appellant accepted the contract specialist

position on March 5, 2024, after the hiring process was reconstructed. CF, Tab 8

at 187-89. The agency also determined that the appellant was eligible for back

pay. Id. at 190. Despite these developments, the appellant does not address that

he has accepted the position or that he was deemed eligible for backpay by the

agency. Regardless, as found by the administrative judge, the adjudication of this

compliance issue is premature because there was no final order from which a

petition for enforcement could be filed. CID at 2-3; see Flaherty v. U.S. Postal

Service, 68 M.S.P.R. 637, 638 (1995). It is also premature because the

appellant’s entitlement to back pay could only be known after a determination

was made that he should have been selected for the job. Dean v. Department of

Agriculture, 99 M.S.P.R. 533, ¶ 45 (2005). Thus, we agree with the

administrative judge’s decision to dismiss the petition for enforcement as

prematurely filed. CID at 3; see 5 C.F.R. §§ 1201.182(a) (providing that a party

may petition the Board for enforcement of a final decision or order issued under

the Board’s appellate jurisdiction), 1208.3 (providing that the Board generally

The appellant also indicates that he does not “understand[] or trust[] the administrative

judge.” CPFR, Tab 1 at 5. There is a presumption of honesty and integrity on the part

of administrative judges that can only be overcome by a substantial showing of personal

bias, and the Board will not infer bias based on an administrative judge’s case-related

rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). The

appellant has not identified any personal animosity or favoritism towards him or the

agency. CPFR File, Tab 1 at 5. We detect no bias in the initial decisions and infer

none from the administrative judge’s conduct in this case.

applies its regulations regarding enforcement in 5 C.F.R. part 1201 to VEOA

appeals).

The appellant also asserts on review that he is owed “willful damages” due

to the agency’s actions. RPFR File, Tab 1 at 7-9. To the extent the appellant is

alleging he is entitled to liquidated damages at this stage, we agree with the

administrative judge’s determination that this claim is premature. AID at 2-3.

A determination on the amount of liquated damages, if any, cannot be determined

until the individual’s entitlement to a position has been decided and the

entitlement to lost wages or benefits established. See Dow v. General Services

Administration, 116 M.S.P.R. 369, ¶ 14 (2011). This is because the remedy for a

willful VEOA violation is liquidated damages equal to the amount of back pay.

5 U.S.C. § 3330c(a); Dow, 116 M.S.P.R. 369, ¶ 14.

Because we are denying the appellant’s petition for review of the remand

initial decision, that decision is now final, and the appellant’s petition for

enforcement and motion for liquated damages are now ripe.

Therefore, we forward the compliance and damages claims to the regional office

for adjudication. See, e.g., As’Salaam v. U.S. Postal Service, 65 M.S.P.R. 417,

422-23 (1994).

NOTICE OF APPEAL RIGHTS 3

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

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.

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:

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

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.

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