Opinion

Lisa Wallace v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 10, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA WALLACE, DOCKET NUMBER

Appellant, CH-3330-16-0444-I-1

DEPARTMENT OF VETERANS DATE: February 10, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lisa Wallace, Steger, Illinois, pro se.

Janet M. Kyte, Esquire, Hines, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed in part and denied in part her request for corrective action in

connection with her Veterans Employment Opportunities Act (VEOA) appeal.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: 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 p etitioner’s due

diligence, was not available when the record closed. 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 The appellant, a preference-eligible veteran, Initial Appeal File (IAF),

Tab 4 at 42, 44, is currently employed by the agency as a GS-11 Program

Specialist, having been reassigned to that position on January 24, 2016, from her

former position as a GS-11 Readjustment Counseling Therapist, id. at 39. On

April 28, 2016, she filed a VEOA appeal in which she alleged that she had

applied for three positions with the agency in 2012, 2014, and 2015, and that the

same selecting official violated her veterans’ preference rights by not selecting

her. Wallace v. Department of Veterans Affairs, MSPB Docket No. CH-3330-16-

0363-I-1, Initial Appeal File (0363 IAF), Tab 1 at 5. In a June 3, 2016 initial

decision, the administrative judge found that, as to the 2012 and 2014

nonselections, the appellant did not show that she had first exhausted her

administrative remedies with the Department of Labor (DOL), and she, therefore,

dismissed the VEOA appeal as to those two nonselections for lack of jurisdiction.

0363 IAF, Tab 10 at 5. The administrative judge found that the Board had

jurisdiction over the appellant’s appeal as to the 2015 nonselection because she

exhausted her remedy with DOL and nonfrivolously alleged that she is a

preference eligible, that the nonselection took place after the VEOA’s October

30, 1998 enactment date, and that the agency violated her right to veterans’

preference in connection with the nonselection. Id. The administrative judge

further found, however, that the appellant filed her appeal 52 days after the date

she received DOL’s results of its investigation into her complaint, 37 days after

the 15-day statutory deadline, and therefore, as to the 2015 nonselection, the

administrative judge dismissed the appeal as untimely filed. Id. at 5-6. The

initial decision became a final decision of the Board when neither party filed a

petition for review. Id. at 7.

¶3 In this VEOA appeal, the appellant challenged the same three nonselections.

IAF, Tab 1 at 5. In addition, she alleged that she was notified on April 18, 2016,

that she also was not selected for the GS-12 position of Supervisory Readjustment

Counseling Therapist for which she had applied, id. at 8-9, and she appeared to

question the qualifications of the selectee, id. at 5. Although the appellant did not

submit a copy of the May 9, 2016 complaint she filed with DOL, she did submit a

copy of DOL’s May 23, 2016 closure letter stating that it had determined that the

evidence did not support her allegation that the agency had violated her veterans’

preference rights regarding the nonselection. Id. at 10. In her appeal, the

appellant also alleged that, in not selecting her, the agency discriminated against

her as a Black female disabled veteran. Id. at 5. She requested a hearing. Id.

at 2.

¶4 The administrative judge issued an Order on VEOA Jurisdiction and Notice

of Proof Requirements, IAF, Tab 3, to which the appellant responded, IAF, Tab 4.

The agency moved to dismiss certain portions of the appeal , specifically, the parts

relating to the 2012, 2014, and 2015 nonselections, on the basis that they

duplicated the appellant’s previous appeal that itself had been dismissed. IAF,

Tab 6. Regarding the 2016 nonselection, the agency argued that it did not violate

the appellant’s veterans’ preference rights and that, therefore, that portion of the

appeal should be dismissed as well. IAF, Tab 7. The administrative judge issued

another Order on Jurisdiction in which she first explain ed that review of the 2012,

2014, and 2015 nonselections was barred by the doctrine of collateral estoppel.

IAF, Tab 8 at 3-4. She then found that the appellant had established the Board’s

jurisdiction as to the 2016 nonselection, id. at 5-7, but that, because there was no

genuine dispute of material fact, the requested hearing would not be convened,

see Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 9 (2008); IAF,

Tab 9. Instead, the administrative judge set a date for the close of record , IAF,

Tab 9, but neither party made any further submissions.

¶5 In an initial decision based on the written record, the administrative judge

first found that, as to the 2012, 2014, and 2015 nonselections, the jurisdictional

and timeliness rulings made in the appellant’s first appeal barred her, based on

collateral estoppel, from raising those claims again in this appeal, and, as to those

actions, the administrative judge dismissed the appeal for lack of jurisdiction.

Ford v. U.S. Postal Service, 118 M.S.P.R. 10, ¶ 11 (2012); IAF, Tab 10, Initial

Decision (ID) at 4-5. As to the 2016 nonselection over which she found that the

Board has jurisdiction, the administrative judge first noted that the Board lacks

jurisdiction to consider the appellant’s allegations of discrimination. Dale v.

Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18(2006); ID at 8. In

addressing the merits of the claim, the administrative judge found that the

appellant failed to prove by preponderant evidence that her 2016 nonselection

violated her rights under a statute or regulation relating to veterans’ preference ,

5 U.S.C. § 3330a(a)(1)(A), or that she was denied the right to compete for that

position, 5 U.S.C. § 3330a(a)(1)(B); 5 U.S.C. § 3304(f)(1), and therefore as to the

2016 nonselection, the administrative judge denied corrective action . ID

at 10-12.

¶6 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.

ANALYSIS

¶7 The appellant does not, on review, challenge the administrative judge’s

dismissal of her appeal regarding the 2012, 2014, and 2015 nonselections for lack

of jurisdiction based on collateral estoppel. PFR File, Tab 1 at 4. Nor do we

discern any reason to disturb that finding. The issues of the Board’s lack of

jurisdiction over the 2012 and 2014 nonselections based on a lack of proof of

exhaustion by the appellant, and the untimeliness of her appeal of the 2015

nonselection, are identical to those involved in the earlier action; the

jurisdictional and timeliness issues were litigated in the previous action; the

previous judgment on those matters was necessary to the resulting judgment; and

the appellant, as the party precluded, had a full and fair opportunity to litigate the

issues in the previous action. Therefore, the administrative judge properly fou nd

that relitigation of the appellant’s appeal regarding those three nonselections is

precluded under the doctrine of collateral estoppel, see Ford, 118 M.S.P.R. 10,

¶ 11, and that that portion of the appeal must be dismissed for lack jurisdiction,

see Noble v. U.S. Postal Service, 93 M.S.P.R. 693, ¶ 7 (2003).

¶8 Regarding the 2016 nonselection, the appellant argues as she did below that

the selectee was on active duty when he was selected and therefore was not a

veteran. PFR File, Tab 1 at 4. The agency acknowledges that the selectee was on

active-duty status at the time, PFR File, Tab 3 at 5-6, but disputes the appellant’s

claim as to his status as a veteran, IAF, Tab 7 at 7.

¶9 We need not resolve this matter because, as a matter of law, the appellant

cannot obtain corrective action under VEOA relating to the 2016 nonselection.

The record establishes that the agency sought to fill the 2016 vacancy to which

the appellant applied through the merit promotion process. IAF, Tab 7 at 21, 46.

When an agency uses the merit promotion process, any veterans’ preference

points under the competitive appointment process to which the appellant is

entitled do not apply. See Joseph v. Federal Trade Commission, 505 F.3d 1380,

1382-83 (Fed. Cir. 2007); Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶ 9

(2005). Thus, the appellant cannot receive corrective action under 5 U.S.C.

§ 3330a(a)(1)(A).

¶10 Further, in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir.

2015), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) found

that, when an agency uses a merit promotion process to fill a position, the “right

to compete” provisions in 5 U.S.C. § 3304(f)(1) do not apply when the applicant

is a veteran who is already employed in the Federal civil service. 778 F.3d

at 1338-39. The Board is bound by this finding. See Oram v. Department of the

Navy, 2022 MSPB 30, ¶¶ 13, 15-17. Here, it is undisputed that the appellant was

employed in the Federal civil service when she applied for the vacancy at issue in

2016. IAF, Tab 1 at 1. Thus, as a matter of law, the appellant is not entitled to

recovery on a claim that she was denied a right to compete. See 5 U.S.C.

§ 3330a(a)(1)(B); Oram, 2022 MSPB 30, ¶ 17. Accordingly, we agree with the

administrative judge’s decision to deny the appellant’s request for corrective

action under VEOA regarding her 2016 nonselection. 2

¶11 Based on the foregoing, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

Any error on the part of the administrative judge in discussing the merits of a right to

compete claim under 5 U.S.C. § 3304(f)(1) in light of the Federal Circuit’s decision in

Kerner did not prejudice either party’s rights and thus provides no basis to reverse the

initial decision. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notic e, the

Board cannot advise which option is most appropriate in any matter.

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the