The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID B. WHITE, DOCKET NUMBER
Appellant, DA-3330-15-0044-C-1
v.
DEPARTMENT OF VETERANS DATE: June 20, 2016
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David B. White, San Antonio, Texas, pro se.
Jeffrey Lee Linhart and Thomas Herpin, Esquire, Houston, Texas,
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 compliance initial
decision, finding the agency in compliance with the April 13, 2015 initial
decision by the administrative judge ordering corrective action, which became 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
final decision of the Board in MSPB Docket No. DA-3330-15-0044-I-1, 2 and
dismissing the petition for enforcement as moot. 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 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 compliance initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a preference eligible, timely applied for the positions of
full-time and part-time Housekeeping Aid, both of which were open only to
preference-eligible veterans. White v. Department of Veterans Affairs, MSPB
Docket No. DA-4324-15-0045-I-1, Initial Appeal File (0045 IAF), Tab 5,
Subtabs 4d, 4f, 4l-4m. In June 2014, the agency informed the appellant that he
was ineligible to be considered for both positions because he did not meet the
requirements of the “Who May Apply” section listed in the vacancy
announcements. 0045 IAF, Subtab 4a at 2, Subtab 4c at 2. The appellant
submitted proof of his eligibility. 0045 IAF, Tab 5, Subtab 4b at 2. However,
due to a possible “administrative oversight,” the Human Resources (HR)
2
For purposes of adjudication, the administrative judge joined MSPB Docket Nos.
DA-3330-15-0044-I-1 and DA-4324-15-0045-I-1. The April 13, 2015 initial decision
listed only MSPB Docket No. DA-4324-15-0045-I-1 in the case caption but also applied
to MSPB Docket No. DA-4324-15-0044-I-1.
3
Specialist did not change the appellant’s eligibility status and the agency did not
consider or select the appellant for either position. 0045 IAF, Tab 20, Hearing
Compact Disc (testimony of the HR Specialist).
¶3 After exhausting his administrative remedy with the Department of Labor,
the appellant filed an appeal with the Board alleging Uniformed Services
Employment and Reemployment Rights Act (USERRA) and Veterans
Employment Opportunities Act (VEOA) violations based on the agency’s failure
to consider him for the part-time and full-time Housekeeping Aid positions. 3
0045 IAF, Tab 1 at 3, 5. After holding a hearing, the administrative judge issued
an initial decision finding that the agency had violated the appellant’s veterans’
preference rights under VEOA and ordering the agency to reconstruct the
selection process for both the full-time and part-time positions. 4 White v.
Department of Veterans Affairs, MSPB Docket No. DA-4324-15-0045-I-1, Initial
Decision (Apr. 13, 2015). The initial decision constitutes the Board’s final
decision in the VEOA appeal. 5
¶4 The appellant filed a petition for enforcement in the VEOA appeal, arguing
that the agency failed to comply with the Board’s order to reconstruct the hiring
2
The regional office docketed the claims separately as a USERRA appeal (MSPB
Docket No. DA-4324-15-0045-I-1) and a VEOA appeal (MSPB Docket No. DA-3330-
15-0044-I-1). See 0045 IAF, Tab 2.
3
The administrative judge dismissed the USERRA claim for lack of jurisdiction or, in
the alternative, for failure to establish a USERRA violation. White v. Department of
Veterans Affairs, MSPB Docket No. DA-4324-15-0045-I-1, Initial Decision at 11-12
(Apr. 13, 2015).
4
The appellant filed a petition for review of the initial decision challenging only the
administrative judge’s findings regarding his USERRA claim. MSPB Docket
No. DA-4324-15-0045-I-1, Petition for Review File, Tab 1. The Board severed the
USERRA and VEOA appeals to allow the administrative judge’s order of corrective
action in the VEOA appeal to proceed independently from the USERRA appeal.
White v. Department of Veterans Affairs, MSPB Docket No. DA-4324-15-0045-I-1,
Final Order at n.2 (Sept. 17, 2015). Regarding the appellant’s USERRA claim, the
Board affirmed the initial decision as modified to find the appellant established
jurisdiction over his USERRA appeal but that he failed to prove a USERRA violation.
Id., ¶¶ 6, 11.
4
process, and filed motions for back pay, benefits, and liquidated damages
pursuant to 5 U.S.C. § 3330c(a). Compliance File (CF), Tabs 1-3. The agency
submitted proof that it had offered both positions to the appellant in April 2015
but that, as of October 14, 2015, the appellant had not accepted the two firm job
offers or responded to the HR Specialist’s follow-up emails and calls. CF, Tab 6
at 7, 9-35. The appellant responded that the agency’s job offers were not in
compliance with the Board’s order because the agency “was wrong in not hiring
[him] from the start or [sic] chance to compete and now want [him] to take less
than full relief.” CF, Tab 7 at 3. The administrative judge ordered the agency to
submit evidence showing that it reconstructed the hiring process as ordered. CF,
Tab 8 at 3. The agency ultimately conceded that, but for its violation of the
appellant’s veterans’ preference rights, he would have been selected for the
positions and appeared to contend that it had complied with the Board’s order of
corrective action by offering him both positions. CF, Tab 14 at 3.
¶5 In the compliance initial decision, the administrative judge found that the
agency had not reconstructed the selection process as ordered, but concluded that
the agency was in material compliance with the Board’s instructions because it
had conceded that, but for its violation of his veterans’ preference rights, the
appellant would have been entitled to the positions at issue and offered him
appointment to both positions. CF, Tab 16, Compliance Initial Decision (CID)
at 3-4. Having found that the agency was in material compliance, the
administrative judge dismissed the petition for enforcement as moot. CID at 4.
The administrative judge stated that, insofar as the appellant claimed that he was
entitled to lost wages, benefits, or liquidated damages based on the willfulness of
the agency’s actions, he should file a damages motion with the Dallas Regional
Office. CID at 3-4.
¶6 On February 5, 2016, the appellant filed motions for back pay, benefits, and
liquidated damages with the regional office. White v. Department of Veterans
Affairs, MSPB Docket No. DA-3330-15-0044-P-1, Damages File (DF), Tabs 1-2,
5
4. Thereafter, the appellant filed a petition for review of the compliance initial
decision, which is now before us. Compliance Petition for Review (CPFR) File,
Tab 1. On March 16, 2016, the administrative judge dismissed the appellant’s
damages motion without prejudice to refiling pending a final decision on the
appellant’s petition for review in this compliance matter. DF, Tab 6.
¶7 In his compliance petition for review, the appellant argues that the petition
for enforcement is not moot because he has not received all of the relief that he
could have received if the matter had been adjudicated and he had prevailed.
CPFR File, Tab 1 at 4. Specifically, the appellant asserts that he is entitled to
retroactive appointment, lost wages, benefits, and liquidated damages. Id. The
agency has not submitted a response.
¶8 Generally, the proper remedy for veterans’ preference violations is to order
the agency to comply with the violated statutory provision by reconstructing the
hiring process for the position in question. See, e.g., Dean v. Department of
Agriculture, 99 M.S.P.R. 533, ¶¶ 44-46 (2005). Where, as here, the agency
admits that it would have selected the appellant for the position but for its
veterans’ preference violation, the appropriate remedy is for the agency to offer
him the same, or a substantially equivalent, position. Marshall v. Department of
Health & Human Services, 587 F.3d 1310, 1317-18 (Fed. Cir. 2009). Although
the appellant argues that he is entitled to additional compensation, he does not
dispute that the agency has offered him both the part-time and full-time
Housekeeping Aid positions that he would have been offered but for the agency’s
veterans’ preference violation. CPFR File, Tab 1; see CF, Tab 6 at 7, 9-35.
Accordingly, we agree with the administrative judge that the agency is in material
compliance with the ordered corrective action because it has admitted that, but for
its veterans’ preference violation, the appellant would have been selected for the
full-time and part-time Housekeeping Aid positions, and it has extended firm
offers for both positions to the appellant. CID at 3.
6
¶9 Under section 3330c(a), the appellant also is entitled to receive
compensation for any loss of wages or benefits suffered by reason of the agency’s
veterans’ preference rights violation and, if the violation is found to be willful, to
liquidated damages. 5 U.S.C. § 3330c(a). As noted above, the appellant has filed
motions for these damages with the regional office, DF, Tabs 1-2, 4, which were
docketed and initially dismissed without prejudice by the administrative judge but
automatically refiled on June 10, 2016. MSPB Docket Nos. DA-3330-15-0044-P-
1 and DA-3330-15-0044-P-2. Because we deny the petition for review and affirm
the compliance initial decision, which is now the final decision of the Board, the
appellant’s request for lost wages, benefits, and liquidated damages is now
properly before the regional office. 6
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:
U.S. 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
6
The administrative judge’s dismissal without prejudice to refiling in the damages
appeal mentions only that the appellant has filed a motion for liquidated damages. DF,
Tab 5 at 1-2. However, in the refiled damages appeal, the administrative judge should
consider the appellant’s requests for back pay, benefits, and liquidated damages arising
from the agency’s veterans’ preference violation pursuant to 5 U.S.C. § 3330c(a). See
DF, Tabs 1-2, 4.
7
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 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.