Anthony Muzereus v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY E. MUZEREUS, III, DOCKET NUMBER

Appellant, DC-3330-16-0605-I-1

v.

DEPARTMENT OF THE ARMY, DATE: February 1, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael W. Macomber, Albany, New York, for the appellant.

Leah S. Serrano, Alexandria, Virginia, 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

denied his request for corrective action pursuant to the Veterans Employment

Opportunities Act of 1998 (VEOA). On petition for review, the appellant asserts

that the agency should have considered his military service toward meeting 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

time-in-grade and specialized experience requirements for the position at issue

and that the administrative judge improperly relied on Kerner v. Department of

the Interior, 778 F.3d 1336 (Fed. Cir. 2015), in denying corrective action.

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

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 petitioner’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).

¶2 As the administrative judge properly concluded, when an agency fills a

vacancy via the merit promotion process, a preference-eligible veteran does not

receive any advantage beyond the ability to apply and be considered for the

position. Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1357,

1359-60 (Fed. Cir. 2016); Walker v. Department of the Army, 104 M.S.P.R. 96, ¶

15 (2006) (finding that 5 U.S.C. § 3304(f)(1) does not provide preference

eligibles with any advantage beyond the opportunity to compete for particular

positions); see Montgomery v. Department of Health & Human Services ,

123 M.S.P.R. 216, ¶ 11 (2016) (finding that the right to compete under 5 U.S.C.

§ 3304(f) includes the agency’s consideration of the veteran’s application).

However, the opportunity-to-compete provision set forth in 5 U.S.C. § 3304(f)

does not apply to veterans, like the appellant, already employed in the Federal

3

civil service who are seeking merit promotions. Oram v. Department of the Navy,

2022 MSPB 30, ¶¶ 15-17 (citing Kerner, 778 F.3d at 1338-39). Thus, the

appellant was not entitled, pursuant to 5 U.S.C. §§ 3304(f) or 3311, or any other

veterans’ preference statute or regulation, to consideration of his non-Federal

civil service experience, i.e., his military experience , for the purposes of

determining whether he met the time-in-grade or other eligibility requirements of

the position. Kerner, 778 F.3d at 1339.

¶3 On review, the appellant argues that his case is distinguishable from Kerner

because the petitioner in Kerner lacked the requisite specialized experience,

whereas the appellant had the required specialized experience , but the agency did

not consider it. Petition for Review (PFR) File, Tab 1 at 11. However, the

petitioner in Kerner explicitly argued, as did the appellant here, that the agency

violated his rights under 5 U.S.C. § 3304(f) because it did not credit his

non-Federal civil service experience towards the time-in-grade requirement in

accordance with 5 U.S.C. § 3311. Kerner, 778 F.3d at 1337-38. We find no

principled basis to distinguish Kerner on its facts. The appellant also asserts on

review that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit)

engaged in “misplace[d] reliance on the legislative history of the VEOA,” in

reaching its conclusion in Kerner and that the Board should thus reject the

principle of stare decisis and not follow the court’s decision. PFR File, Tab 1

at 13-16. Kerner is controlling authority that the Board is bound to follow.

Oram, 2022 MSPB 30, ¶ 17; see Conner v. Office of Personnel Management,

120 M.S.P.R. 670, ¶ 6 (2014), aff’d, 620 F. App’x 892 (Fed. Cir. 2015)

(explaining that it is axiomatic that precedential decisions of the Federal Circuit

are controlling authority for the Board and that the Board is bound to follow them

unless they are overruled by the court sitting en banc ). The appellant further

argues on review that Kerner is inconsistent with another Federal Circuit case,

Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012), and

that Kerner, therefore, is of little precedential value. PFR File, Tab 1 at 9 -10.

4

The court’s decision in Lazaro does not state whether the vacancy announcement

in question was filled through an open competitive process or merit promotion

procedures, and thus the strength of any comparisons among Kerner, Lazaro, and

the instant case is not clear. 2 The appellant’s arguments on review do not

demonstrate that he is entitled to corrective action.

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

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.

2

In a recent nonprecedential decision, the Federal Circuit interpreted Lazaro as not

involving a vacancy filled using the merit promotion process. Barry v. Department of

Defense, No. 2017-2142, 2017 WL 5474219 (Fed. Cir. Nov. 15, 2017).

3

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 notice, the

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

5

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

6

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 b y 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

7

(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

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

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.

4

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.

8

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.