The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 8
Docket No. DC-3330-14-0993-I-1
Thomas V. Montgomery, III,
Appellant,
v.
Department of Health and Human Services,
Agency.
February 5, 2016
Thomas V. Montgomery, III, Centreville, Virginia, pro se.
Kathleen Mee, Washington, D.C., for the agency.
Randolph Gadson, Bethesda, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND 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 following reasons, we GRANT the
petition for review, VACATE the initial decision, and REMAND the appeal to the
regional office for further adjudication in accordance with this Opinion and
Order.
2
BACKGROUND
¶2 The appellant alleges that he was denied the right to compete when the
agency transferred an employee from outside its workforce into a GS-1701-15
Supervisory Organizational Development Specialist position in the competitive
service without advertising the vacancy. Initial Appeal File (IAF), Tab 1 at 4-5.
The administrative judge notified the appellant that the Board may not have
jurisdiction over his appeal, explained the jurisdictional requirements under
VEOA, and ordered the appellant to file evidence and argument establishing the
Board’s jurisdiction. IAF, Tab 3 at 3. In response, the appellant filed evidence
establishing that he is a preference-eligible veteran and argued that the agency
violated his right to a fair and equal opportunity to compete for a position it filled
with a candidate from outside its workforce without advertising the vacancy.
IAF, Tab 4. The appellant also filed a letter from the Department of Labor (DOL)
closing its investigation into his complaint. IAF, Tab 6. The administrative
judge issued a decision on the merits, without holding a hearing, denying the
appellant’s request for corrective action. IAF, Tab 12, Initial Decision (ID) at 4.
The administrative judge found that the appellant had not shown that his right to
compete was denied because the agency had discretion to fill the vacancy by any
authorized method, and the appellant had not shown that he was qualified for the
position. ID at 3-4.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 2. He argues that the administrative judge was biased. Id. at 4. He also
argues that the administrative judge erred in finding that he was not qualified for
the position. PFR File, Tab 3. After filing his petition for review, the appellant
filed two additional pleadings. PFR File, Tabs 2-3. The agency has filed a
response in opposition to the petition for review. PFR File, Tab 6. The appellant
has filed a reply to the agency’s response. PFR File, Tabs 7-9.
3
ANALYSIS
The Board has jurisdiction over the appellant’s claim that the agency denied his
right to compete under 5 U.S.C. § 3304(f)(1).
¶4 The appellant argues that the agency’s failure to announce the vacancy
denied him his right to compete for the position. PFR File, Tab 1 at 6. As part of
VEOA, Congress amended 5 U.S.C. § 3304 to add the following:
Preference eligibles or veterans who have been separated from the
armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for
vacant positions for which the agency making the announcement will
accept applications from individuals outside its own workforce under
merit promotion procedures.
5 U.S.C. § 3304(f)(1). Affected individuals may seek administrative redress for a
violation of their rights under 5 U.S.C. § 3304(f)(1) by filing a complaint with the
Secretary of Labor and, after exhaustion of that process, filing a timely appeal
with the Board. Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175,
¶ 6 (2010); Walker v. Department of the Army, 104 M.S.P.R. 96, ¶¶ 12-16 (2006);
see 5 U.S.C. § 3330a(a)(1), (d). 1
¶5 The appellant has made a nonfrivolous allegation that he is both a
preference eligible and a veteran who was separated from the armed forces under
honorable conditions after 3 years of active service. IAF, Tab 4 at 5-7. The
appellant also has presented evidence that he has exhausted his remedy before
DOL regarding his claim. IAF, Tab 6. It is undisputed that the agency filled a
vacant position in the competitive service with an applicant from outside its
workforce without advertising the vacancy and that the selection at issue took
place in 2014, after the enactment of VEOA and the Veterans Benefits
Improvement Act of 2004. IAF, Tab 8 at 7; PFR File, Tab 6 at 4. An agency may
1
At first, this redress right was available only to preference eligibles, but the Veterans
Benefits Improvement Act of 2004 granted affected veterans the right to seek redress
for violations of the right to compete under 5 U.S.C. § 3304(f)(1). Walker,
104 M.S.P.R. 96, ¶ 14; see 5 U.S.C. § 3330a(a)(1)(B).
4
violate section 3304(f)(1) when, for example, it deprives a preference eligible or
covered veteran the right to apply by filling a position without required public
notice. Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 28 (2010).
Regulations of the Office of Personnel Management (OPM) require that “[a]n
agency must announce all vacancies it intends to fill from outside its permanent
competitive service workforce.” 5 C.F.R. § 330.706(c); see 5 C.F.R. §§ 330.103,
335.106. Based on the foregoing, we find that the Board has jurisdiction over the
appellant’s right-to-compete claim under 5 U.S.C. § 3330a(a)(1)(A) 2 and
(a)(1)(B). See Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 31
(2007).
The appeal must be remanded because there are genuine issues of material fact
that cannot be resolved on the current record.
¶6 As stated in the initial decision, agencies are permitted to fill vacancies by
any authorized method. ID at 3; Shapley v. Department of Homeland Security,
110 M.S.P.R. 31, ¶ 13 (2008). However, the Board will review the method used
by an agency to fill a vacancy to determine if it is authorized when the use of an
unauthorized method could have denied covered individuals the right to compete.
See Dean, 115 M.S.P.R. 157, ¶ 28; see also Dean v. Department of Agriculture,
104 M.S.P.R. 1, ¶¶ 17-21 (2006) (examining whether the agency was authorized
to fill a vacancy using the Outstanding Scholar Program). We find that there is
insufficient evidence in the record to determine if the agency denied the appellant
the right to compete in filling the vacancy at issue in this appeal.
¶7 The agency argues that, because it filled the vacancy via a transfer pursuant
to 5 C.F.R. § 315.501, “outside” of merit promotion procedures, it was not
required to give covered individuals the right to compete pursuant to 5 U.S.C.
2
The Board has found that 5 U.S.C. § 3304(f)(1) is a statute relating to veterans’
preference for which VEOA provides a remedy. Walker, 104 M.S.P.R. 96, ¶ 16.
5
§ 3304(f)(1). 3 IAF, Tab 8 at 5-6; PFR File, Tab 6 at 10-11. However, in
deference to OPM’s regulations and guidance, the Board has held that the right to
compete under 5 U.S.C. § 3304(f)(1) is not limited merely to situations in which
an agency elects to use merit promotion procedures, but rather is triggered when
an agency accepts applications from individuals outside its own workforce.
Dean, 115 M.S.P.R. 157, ¶ 28 & n.11; Brandt v. Department of the Air Force,
103 M.S.P.R. 671, ¶¶ 10-15 (2006); see 5 C.F.R. § 335.106. The agency cites
Villamarzo v. Environmental Protection Agency, 92 M.S.P.R. 159 (2002), in
support of its theory that transferring a Federal employee without using merit
promotion procedures does not implicate the right to compete in 5 U.S.C.
§ 3304(f)(1). PFR File, Tab 6 at 10. In Villamarzo, however, the agency filled a
vacancy with an employee from within the agency’s own workforce. 92 M.S.P.R.
159, ¶¶ 2, 6. Here, the agency filled the position with an applicant from outside
its workforce, and based on the evidence and argument before us, it does not
appear that the agency’s invocation of its transfer authority under 5 C.F.R.
§ 315.501 negates the statutory right of a preference eligible or covered veteran to
compete under 5 U.S.C. § 3304(f)(1). See Dean, 115 M.S.P.R. 157, ¶ 28 & n.11;
Brandt, 103 M.S.P.R. 671, ¶¶ 10-15.
¶8 The agency alternatively maintains that, even if the appellant had a right to
compete under section 3304(f)(1), his right was not violated because it relied on
an internal standard operating procedure to “share” a selection certificate for
another advertised vacancy for an allegedly comparable position. PFR File, Tab 6
at 5, 10-11. Specifically, the agency asserts that it posted a vacancy
3
There are two types of selection procedures generally used to fill vacancies in the
competitive service: (1) the open “competitive examination” process generally used for
candidates seeking to join the competitive service; and (2) the “merit promotion”
process used when a position is filled from within an agency’s workforce or by an
applicant from outside the agency who has “status” in the competitive service such as a
competitive service employee at another agency. Joseph v. Federal Trade Commission,
505 F.3d 1380, 1381-82 (Fed. Cir. 2007).
6
announcement for the position of Director, Division of Learning and
Organizational Development, GS-1701-15, and that the appellant applied for that
position but was not selected. Id. at 11. The agency claims that, using its
Standard Operating Procedure on Shared Certificates, it determined that another
individual who had applied for the Director position was highly qualified for the
allegedly similar position of Supervisory Organizational Development Specialist,
GS-1701-15. Id. The agency then transferred that individual from another
Federal agency into the Supervisory Organizational Development Specialist
position without specifically announcing that vacancy. Id.; IAF, Tab 8 at 7.
¶9 An agency’s internal policy may not override applicable statutes, including
5 U.S.C. § 3304(f)(1). Gingery, 114 M.S.P.R. 175, ¶ 10; Boctor v. U.S. Postal
Service, 110 M.S.P.R. 580, ¶ 9 (2009). The record must be developed further
regarding the agency’s use of its standard operating procedure to fill the vacancy
at issue before a determination can be made as to whether the agency’s process
afforded the appellant his right to compete. The agency’s standard operating
procedure states that shared certificates are appropriate to fill regularly recurring
vacancies that “match” in job title, series, grade, geographical location,
specialized experience requirements, job knowledge, skills, and abilities, as well
as selective factors. PFR File, Tab 6 at 31-32. The agency’s standard operating
procedure also requires that an open selection certificate be used within a 90-day
period of when originally issued. Id. at 32.
¶10 However, the record must be developed regarding whether the agency
appropriately followed its own procedures here. For instance, the record contains
insufficient evidence concerning the Supervisory Organizational Development
Specialist position to determine if it is a regularly recurring vacancy that
“matched” the Director, Division of Learning and Organizational Development
position in the ways specified by the standard operating procedure. There is also
insufficient evidence to determine if the agency complied with other relevant
7
provisions in its standard operating procedures, such as the time limit for using a
shared certificate.
¶11 The record also must be fully developed regarding what consideration, if
any, was given to candidates for the position other than the selectee. The
appellant was on the selection certificate for the Director, Division of Learning
and Organizational Development position, but it is unclear what, if any,
information about him was provided to the selecting official for this position. If,
for instance, as the appellant alleges, the selectee was preselected and none of the
other applicants for the Director, Division of Learning and Organizational
Development position were considered for the Supervisory Organizational
Development Specialist position, he may have been denied the right to compete.
The Board has found that a veteran is denied his right to compete under 5 U.S.C.
§ 3304(f)(1) when an agency accepts his application and determines that he is
qualified, but the selecting official does not give his application any further
consideration. See, e.g., Shapley, 110 M.S.P.R. 31, ¶¶ 9-17 (holding that the
appellant was denied the right to compete when he was found qualified for a
position and placed on the certificate of eligibles, but the certificate was not
provided to the selecting official for consideration).
The administrative judge erred in finding that the appellant was not qualified for
the position.
¶12 The administrative judge further found that the appellant was not qualified
for the GS-15 position at issue in this appeal because he was in a GS-13 position,
classified in a different series, at the time of the selection. ID at 4. The
appellant’s grade and the series of his position at the time of the selection are not
dispositive as to whether he was qualified. See 5 C.F.R. §§ 300.604, 300.605.
The agency determined that the appellant was qualified for the GS-15 Director,
Division of Learning and Organizational Development position, and included him
on the selection certificate for that position, which the agency claims to have used
to make the selection for the Supervisory Organizational Development Specialist
8
position. PFR File, Tab 6 at 4-5, 22-29. Thus, it appears the agency found the
appellant qualified at the GS-15 level. The appellant has filed additional
evidence on review regarding his qualifications. PFR File, Tab 3. On remand,
the administrative judge should reconsider her finding in light of this evidence,
and any additional evidence introduced by the parties on this issue.
The parties must be given an opportunity to further develop the record.
¶13 The Board may decide the merits of an appeal alleging the violation of
rights under VEOA without holding a hearing where there is no genuine dispute
of material fact and one party must prevail as a matter of law. Waters-Lindo v.
Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). As discussed above, based
on the current record, there remain genuine disputed issues of material fact.
Therefore, issuing a decision without a hearing, if the appellant wished to have
one, was not appropriate in this case. Additionally, because the administrative
judge found that the Board had jurisdiction under VEOA, ID at 2, and declined to
hold a hearing as she indicated she would in the acknowledgment order, IAF, Tab
3 at 2, she was responsible for notifying the parties that there would be no
hearing, for setting a date on which the record would close, and for affording the
parties the opportunity to submit evidence regarding the merits of the appeal
before the record closed, Jarrard v. Department of Justice, 113 M.S.P.R. 502,
¶ 11 (2010). The administrative judge did not give the parties such notice. This
error was prejudicial to the appellant because there remain genuine disputes of
material facts that cannot be resolved on the current record. Id. This appeal must
be remanded for the record to be fully developed regarding the material facts. 4
4
The appellant also alleges that the administrative judge was biased in favor of the
agency. PFR File, Tab 2 at 4. In making a claim of bias or prejudice against an
administrative judge, a party must overcome the presumption of honesty and integrity
that accompanies administrative adjudicators. Oliver v. Department of Transportation,
1 M.S.P.R. 382, 386 (1980). Although we are remanding this appeal for further
9
See, e.g., Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 12 (2008)
(remanding, in part, because the evidentiary record was not sufficiently developed
to determine whether a covered individual was given the right to compete).
ORDER
¶14 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
adjudication, we find nothing in the record to support the appellant’s assertion that the
administrative judge was biased in her original adjudication.