The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANE KING, DOCKET NUMBERS
Appellant, AT-0330-12-0737-C-1
AT-0330-12-0739-C-1
v. AT-0330-12-0741-C-1
DEPARTMENT OF VETERANS
AFFAIRS,
Agency. DATE: August 5, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL *
Diane King, Prattville, Alabama, pro se.
Johnston B. Walker, Jackson, Mississippi, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of the three initial decisions,
which denied her petitions for enforcement of final Board orders. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in these appeals, we JOIN the three cases under
5 C.F.R. § 1201.36(b) and, based on the following points and authorities,
conclude that the petitioner has not established any basis under section 1201.115
for granting the petitions for review. Therefore, we DENY the petitions for
review and AFFIRM the initial decisions issued by the administrative judge,
which are now the Board’s final decisions. 5 C.F.R. § 1201.113(b).
¶2 The appellant prevailed in her claims that the agency violated her veterans’
preference rights during the selection process for three Medical Technologist
positions and the Board ordered the agency to reconstruct those selection
processes. The appellant filed petitions for enforcement in which she alleged that
the agency had not properly reconstructed the section process in any of the three
cases. The administrative judge denied the petitions for enforcement and found
the agency to be in compliance.
¶3 Upon reconstruction, the appellant was in each instance referred to and
considered by the selecting official. However, when the selecting official
checked the appellant’s references and discovered her extensive prior disciplinary
record, it sought permission to pass over the appellant. Because the appellant is a
5-point veteran and not a disabled veteran or a preference eligible being
disqualified for medical reasons, nor is she accused of making a material false
statement in examination or appointment, the agency was authorized to obtain
pass-over authority internally rather than going through the Office of Personnel
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Management. 5 C.F.R. § 332.406(a). The agency obtained pass-over authority
from its Chief of Human Resources.
¶4 A prevailing appellant in a nonselection case brought under the Veterans
Employment Opportunities Act of 1998 is not necessarily entitled to selection for
the position sought. See Phillips v. Department of the Navy, 114 M.S.P.R. 19,
¶ 21 (2010); Gonzalez v. Department of Homeland Security, 110 M.S.P.R. 567,
¶ 6, aff’d per curiam, 355 F. App’x. 417 (Fed. Cir. 2009).
¶5 Rather, she is entitled to a proper process that affords her all of the
veterans’ preference rights to which she is entitled. Phillips, 114 M.S.P.R. 19,
¶ 21; Gonzalez, 110 M.S.P.R. 567, ¶ 6. Thus, the Board generally orders
reconstruction and only orders the agency to select the appellant when the
evidence shows that it would have selected the appellant had it followed a proper
procedure. See generally Marshall v. Department of Health & Human Services,
587 F.3d 1310, 1317 (Fed. Cir. 2009). Here, the evidence shows that the agency
would not have selected the appellant regardless of which procedures it followed
because of her poor prior employment record. Under these circumstances, it is
not appropriate to order the agency to select the appellant for any of the three
positions. Thus, although we agree with the administrative judge that the agency
did not perform a proper reconstruction in these cases, there is no further relief
that the appellant can be awarded for the earlier violations of her veterans’
preference rights. See Jones v. Department of Health & Human Services,
119 M.S.P.R. 355, ¶¶ 14-16, aff’d, 544 F. App’x 976 (2013).
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:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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
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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.