The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC WILLIAMS, DOCKET NUMBER
Appellant, AT-3330-15-0624-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 25, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eric Williams, North Charleston, South Carolina, pro se.
Steven P. Stoer, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL 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 (VEOA). 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 interpretation of statute or regulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See 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 petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On or about November 25, 2014, the agency posted a vacancy
announcement, listed under Job Announcement Number NE41102-12-
1265003XXXXXXXXE, for the position of Contract Specialist, GS-1102-9/12.
Initial Appeal File (IAF), Tab 6 at 42-48. The agency announced the vacancy
pursuant to its Expedited Hiring Authority (EHA) under 10 U.S.C. § 1705(g).
IAF, Tab 6 at 42. The announcement identified a Quality Ranking Factor (QRF)
that would be used to determine applicants’ qualifications. Id. at 44-45. The
announcement further explained that applicants not possessing at least one of two
listed types of experience would be found ineligible for the position. Id.
¶3 In his application, the appellant indicated on the occupational questionnaire
that he did not possess either type of experience at issue. Id. at 40. Accordingly,
the agency determined that he was ineligible for the position, and he was notified
of that determination in an email dated June 4, 2015. Id. at 10-11. The appellant
filed a timely complaint with the Department of Labor (DOL), alleging that the
agency had violated his veterans’ preference rights. IAF, Tab 4. 2 By letter dated
2
The record reflects that the appellant is a preference eligible. IAF, Tab 9.
3
June 17, 2015, DOL informed him that it had completed its investigation and
determined that the evidence did not support his allegation. Id. DOL further
informed the appellant of his right to appeal the matter to the Board. Id.
¶4 On June 22, 2015, the appellant filed the instant VEOA appeal, again
alleging that the agency had violated his veterans’ preference rights when it failed
to select him for the Contract Specialist position. IAF, Tab 1. Specifically, he
claimed that the agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by
failing to credit him with all experience material to the position. IAF, Tabs 7, 12,
14. He noted that his application package included a Standard Form 50 (SF‑50)
indicating that he had previously held a Contract Specialist position in another
agency. Id. He argued that the agency had improperly relied on his responses to
the occupational questionnaire when the experience indicated on his SF-50 was
sufficient to meet the QRF for the position. IAF, Tab 14. He further contended
that it was improper for the agency to use the QRF to screen out applicants, as
opposed to using it as a ranking or tie-breaking tool. IAF, Tab 7. In addition, he
claimed that the agency failed to comply with passover procedures under 5 U.S.C.
§ 3318. IAF, Tabs 7, 12, 14.
¶5 The administrative judge found that the Board had jurisdiction over the
matter, but denied the appellant’s request for corrective action. IAF, Tab 16,
Initial Decision (ID). In his decision, the administrative judge observed that the
agency had filled the vacancy pursuant to 10 U.S.C. § 1075(g), 3 which authorizes
the Secretary of Defense to “designate any category of acquisition workforce
positions as positions for which there exists a shortage of candidates or there is a
critical hiring need,” and “utilize the authorities in [5 U.S.C. §§ 3304, 5533, and
3
The administrative judge cited to 10 U.S.C. § 1705(h), which is where the EHA
provision was originally codified. See Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009, Pub. L. No. 110-427, § 833, 122 Stat. 4356 (2008). However,
the provision has been located at section 1705(g) at all times relevant to this appeal.
See National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239,
§ 803, 126 Stat. 1632 (2013) (redesignating section 1705(h) as section 1705(g)).
4
5753] to recruit and appoint qualified persons to positions directly to positions so
designated.” The administrative judge reasoned that, because the agency filled
the Contract Specialist position under the competitive‑service process, the
relevant statute was 5 U.S.C. § 3304(a)(3), which provides authority for agencies
to directly appoint candidates to positions, “without regard to the provisions of
sections 3309 through 3318,” to positions “for which there exists a severe
shortage of candidates or . . . there is a critical hiring need.” Id. Accordingly, he
found that the agency was not required to follow 5 U.S.C. §§ 3311(2) and 3318
when filling the Contract Specialist position through the EHA. ID at 6-7. As for
the alleged violation of 5 C.F.R. § 302.302(d), the administrative judge noted that
the regulation governs excepted‑service appointments and therefore is
inapplicable. ID at 8 n.6. He further found that he lacked authority under VEOA
to review the manner in which the agency applied the QRF. ID at 7.
¶6 This petition for review followed. Petition for Review (PFR) File, Tab 1.
The agency has responded, and the appellant has filed a reply to its response.
PFR File, Tabs 3, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 On petition for review, the appellant again argues that, in finding that he
did not meet the QRF, the agency improperly relied on the occupational
questionnaire instead of considering the experience listed on his SF-50. PFR
File, Tabs 1, 6. He further argues, for the first time on review, that using the
QRF to screen out candidates is contrary to the procedures set forth in chapter 5
of the Office of Personnel Management (OPM) Delegated Examining Operations
Handbook (DEOH). Id. 4
4
In his reply to the agency’s response to his petition, the appellant further contends
that, contrary to the initial decision, the agency violated 5 U.S.C. § 3311(2). PFR File,
Tab 6. However, our regulations provide that a party may not raise new allegations of
error on the part of the administrative judge in a reply to a response to a petition for
review. 5 C.F.R. § 1201.114(a)(4). In any event, we discern no error in the
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¶8 Concerning the appellant’s argument that the agency should have
considered his SF-50 instead of the occupational questionnaire in deciding
whether he met the QRF, we agree with the administrative judge that the Board
lacks authority to consider that claim. VEOA does not authorize the Board to
adjudicate the merits of an agency action beyond determining whether the action
violated a statute or regulation relating to veterans’ preference. See Villamarzo v.
Environmental Protection Agency, 92 M.S.P.R. 159, ¶ 5 (2002). The appellant
has not identified a statute or regulation relating to veterans’ preference that
would prohibit the agency from relying on an applicant’s response to the
occupational questionnaire in determining whether the QRF is satisfied. Nor are
we aware of any such statute or regulation.
¶9 As to the alleged violation of the DEOH, the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). In any event, the appellant’s claim that the agency
violated the DEOH is not cognizable under VEOA. To be entitled to relief under
VEOA, an appellant must show by a preponderance of the evidence that the
agency violated his rights under a statute or regulation relating to veterans’
preference. Beyers v. Department of State, 120 M.S.P.R. 573, ¶ 6, aff’d,
593 F. App’x 980 (Fed. Cir. 2014). The DEOH does not constitute such a statute
or regulation, and therefore cannot support a claim for corrective action under
VEOA. Cf. Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 9
(2012) (finding that, to the extent the appellant alleged that the agency violated
OPM’s VetGuide, he failed to nonfrivolously allege a violation of statute or
regulation relating to veterans’ preference); Coats v. U.S. Postal Service,
administrative judge’s finding that the agency was not bound by the requirements of
5 U.S.C. § 3311(2), 5 U.S.C. § 3318, or 5 C.F.R. § 302.302(d) when filling the Contract
Specialist position through the EHA.
6
111 M.S.P.R. 268, ¶ 14 (2009) (finding that a veterans’ preference provision of a
Postal Service handbook was not a “statute or regulation” relating to veterans’
preference under VEOA).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
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 U.S. 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 U.S. 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 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
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for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems 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.