David J. McCauley v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID J. MCCAULEY, DOCKET NUMBER

Appellant, CH-3443-14-0099-I-3

v.

DEPARTMENT OF VETERANS DATE: July 8, 2015

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

David J. McCauley, Saint Charles, Missouri, pro se.

Kimberly Negley, Saint Louis, Missouri, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

denied his request for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA). For the reasons discussed below, we

GRANT the appellant’s petition for review, VACATE the initial decision, and

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REMAND the case to the regional office for further adjudication in accordance

with this Order.

BACKGROUND

¶2 The appellant filed an appeal alleging that the agency failed to select him

for various positions, and the appeal was dismissed without prejudice to allow

him an opportunity to exhaust his administrative remedies. McCauley v.

Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-1, Initial

Appeal File (IAF), Tabs 1, 14. 2 Upon refiling, the appellant clarified that his

appeal was limited to the agency’s decision not to select him for a Title 38

Medical Support Assistant (MSA) position (vacancy announcement STL-T38H-

13-911450), and he alleged that the agency did not properly consider his status as

a veteran. McCauley v. Department of Veterans Affairs, MSPB Docket No.

CH-3443-14-0099-I-2, Initial Appeal File (I-2 IAF), Tabs 1, 10. The agency

conceded that it filled the vacancies pursuant to the Master Agreement between

the agency and the American Federation of Government Employees, which

required the agency to first consider facility-wide candidates. See I-2 IAF, Tab 7

at 14, Subtab 4j at 2 (“[F]irst and full consideration shall be given to any best

qualified candidates within the facility (or more narrow area).”). There appears

to be no dispute that the appellant was not a facility-wide candidate.

¶3 The administrative judge scheduled a status conference to apprise the

parties of the Board’s decision in Modeste v. Department of Veterans

Affairs, 121 M.S.P.R. 254 (2014), which held that the agency’s reliance on its

master labor agreement did not excuse its violation of Mr. Modeste’s right to

compete under VEOA. See I-2 IAF, Tab 13. During this conference, the agency

2

During the course of the appeal, the appellant raised allegations of reprisal for

whistleblowing activity. See IAF, Tab 12. The regional office docketed a separate

appeal regarding these allegations and issued an initial decision on June 25, 2015, see

McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-1221-14-0721-

W-1, Initial Decision (June 25, 2015). We deny the appellant’s request to join these

appeals.

3

indicated that additional MSA positions became available after the MSA positions

at issue in this appeal had been filled. See I-2 IAF, Tab 14 at 1. According to the

administrative judge:

The agency further reported that it has made preliminary selections

for the additional positions and that due to a clerical error, the

Appellant and four other veterans were not included on the

certificate used to make the selections. The agency proposed the

following as a reconstruction remedy: (1) the agency will hold the

preliminary selections in abeyance, (2) a certificate will be created to

include the Appellant and the four other veterans, (3) the certificate

will be forwarded to the hiring authority, and (4) the Appellant and

the four other veterans will be offered interviews. The agency

estimated it would take approximately two weeks to initiate the

process.

Id. The appellant agreed to the agency’s proposed reconstruction remedy and to

have his appeal dismissed without prejudice. Id. at 2. On July 2, 2014, the

appeal was dismissed without prejudice for 90 days. See I-2 IAF, Tab 15.

¶4 Approximately 50 days later, on August 21, 2014, the appellant filed

another appeal, alleging that the agency failed to fulfill its obligations in the

reconstructed selection process and that he was interviewed for another position

at a lower pay grade. See McCauley v. Department of Veterans Affairs, MSPB

Docket No. CH-3443-14-0099-I-3, Initial Appeal File (I-3 IAF), Tab 1. The

administrative judge issued an initial decision noting the following:

(1) the appellant was interviewed for an MSA position; (2) he was informed that

he had been selected for one of the MSA positions; (3) he declined the offer; and

(4) the details of the offered position were the same as one of the positions for

which he initially had applied. I-3 IAF, Tab 9, Initial Decision (ID). The

administrative judge found that the agency complied with all of its obligations

under the agreed-upon reconstruction remedy and that the appellant was therefore

provided with a lawful selection process. See ID at 6-7. The administrative

judge denied the appellant’s request for corrective action, finding that he was not

denied a meaningful opportunity to compete for the MSA position and he did not

4

demonstrate that his nonselection violated one or more of his statutory or

regulatory veterans’ preference rights. See ID at 7-8.

¶5 The appellant has filed a petition for review, the agency has filed a

response, and the appellant has filed a reply. See Petition for Review (PFR) File,

Tabs 1-2, 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On petition for review, the appellant alleges, among other things, that the

selection process was not properly reconstructed, and he challenges the

administrative judge’s conclusion that he was offered the same position that was

advertised in the original vacancy announcement. PFR File, Tab 1 at 1-3. He

also asserts that the agency has “an integrity issue.” Id. at 2.

¶7 An appellant must receive explicit information on what is required to

establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Other than noting that an

unsuccessful applicant may challenge a nonselection as a violation of his

veterans’ preference rights, see IAF, Tab 2, the administrative judge did not give

the appellant adequate notice of the jurisdictional requirements for a veterans’

preference appeal or a right to compete appeal, 3 see, e.g., Lazaro v. Department

of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (explaining how to

establish Board jurisdiction over a veterans’ preference appeal brought pursuant

to 5 U.S.C. § 3330a(a)(1)(A)); Becker v. Department of Veterans

Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (explaining how to establish Board

3

The agency discussed the jurisdictional burden in a veterans’ preference appeal in its

submission on jurisdiction and motion to dismiss, IAF, Tab 11 at 6-7, and the Board has

held that such notice could cure the administrative judge’s error in this regard, see, e.g.,

Nichols v. Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996). We conclude,

however, that the agency’s discussion of the jurisdictional burden does not constitute

sufficient jurisdictional notice to cure the administrative judge’s error because the

appeal was subsequently dismissed without prejudice pursuant to the parties’

agreed-upon reconstruction remedy, and it does not appear that the appellant was on

notice that he still had to prove that the Board has jurisdiction over the appeal.

5

jurisdiction over a “right to compete” appeal under 5 U.S.C. § 3330a(a)(1)(B)).

Therefore, we vacate the initial decision and remand the appeal for the

administrative judge to give proper jurisdictional notice for a veterans’ preference

appeal and a right to compete appeal.

¶8 We wish to make one point of clarification if the administrative judge finds

that the Board has jurisdiction over the appeal on remand. The administrative

judge stated in the initial decision that “the only remaining issue is whether the

[agency] has fully complied with its obligations under the reconstruction remedy

agreed upon by all parties.” ID at 6. Even if the agency complied with each of

the terms of the parties’ agreed-upon reconstruction remedy, 4 the administrative

judge must still determine whether, through the agency’s reconstructed selection

process, the appellant received all the relief to which he would have been entitled

if he had prevailed on his VEOA claim before the Board. See Phillips v.

Department of the Navy, 114 M.S.P.R. 19, ¶¶ 14-20 (2010) (concluding that the

agency’s “hypothetical” reconstructed selection process did not give the appellant

an opportunity to compete because the agency did not remove the original

selectees, the members of the reconstructed selection board were not the original

selection board members, and it was not clear how many positions had been

filled); see also Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 18

(2010) (finding that, because the appellant’s assertions that the agency violated

his right to compete during the reconstructed hiring process were without merit,

he had obtained all of the relief he could have obtained had he prevailed on his

VEOA claim before the Board).

4

We do not consider the parties’ apparent agreement, memorialized in an order from a

status conference, see I-2 IAF, Tab 14, to be a settlement agreement that resolves the

initial appeal because the administrative judge did not make a finding of Board

jurisdiction, and there is no discussion of the voluntariness of the agreement and/or the

parties’ intent that the agreement be enforceable by the Board. This conclusion is

buttressed by the fact that the administrative judge did not dismiss the appeal in MSPB

Docket No. CH-3443-14-0099-I-2 as settled, and she did not treat the appellant’s matter

in MSPB Docket No. CH-3443-14-0099-I-3 as a compliance appeal.

6

¶9 The appellant raises concerns below and on petition for review that the

position for which he was interviewed and subsequently selected was not the

same position for which he originally had applied. See I-3 IAF, Tabs 1, 3; see

also PFR File, Tab 1. Even if the Board had jurisdiction over the appeal, the

record is insufficiently developed for us to resolve whether, through the agency’s

reconstructed selection process, the appellant obtained all of the relief he could

have obtained had he prevailed on his VEOA claim before the Board. If the

administrative judge determines that the Board has jurisdiction over the appeal on

remand, she shall evaluate this issue in the first instance.

ORDER

For the reasons discussed above, we REMAND this case to the regional

office for jurisdictional notice and further adjudication in accordance with this

Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.