Opinion

Brandon Goins v. Department of the Army

Court: Merit Systems Protection Board
Filed: Sep 23, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRANDON M. GOINS, DOCKET NUMBER

Appellant, SF-3330-21-0214-X-1

DEPARTMENT OF THE ARMY, DATE: September 23, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brandon M. Goins, APO, AP, pro se.

Chad H. Arnesen, Esquire and Harrison Spencer, APO, AP, for the agency.

BEFORE

Cathy A. Harris, Vice Chair

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 In a November 8, 2021 compliance initial decision, the administrative judge

found the agency in noncompliance with the Board’s August 9, 2021 final

decision, which ordered the agency to reconstruct the hiring process for a position

for which it had denied the appellant the opportunity to compete in violation of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

his veterans’ preference rights under the Veteran’s Employment Opportunities

Act of 1998 (VEOA), 5 U.S.C. § 3304(f)(1). Goins v. Department of the Army,

MSPB Docket No. SF-3330-21-0214-I-1, Initial Appeal File (IAF), Tab 15, Initial

Decision; Goins v. Department of the Army, MSPB Docket No. SF-3330-21-0214-

C-1, Compliance File, Tab 11, Compliance Initial Decision (CID). For the

reasons discussed below, we find the agency in compliance and DISMISS the

petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the compliance initial decision, the administrative judge found that,

although the agency attempted to reconstruct the hiring process, it did not provide

evidence indicating precisely what steps it had taken to comply with the Board’s

order, including whether it had removed the improperly appointed selectee from

the subject position during the reconstruction, applied the same criteria to the

appellant’s application that it applied to the other candidates , and/or engaged in

more than a merely hypothetical reconstruction process. CID at 3. Accordingly,

he granted the appellant’s petition for enforcement and again o rdered the agency

to reconstruct the selection process for the position, consistent with the

requirements set forth at 5 U.S.C. § 3304(f)(1), to include taking the improperly

appointed selectee out of the position during the reconstruction process. CID

at 4.

¶3 The administrative judge informed the agency that, if it decided to take the

ordered actions, it must submit to the Clerk of the Board a narrative statement and

evidence establishing compliance. CID at 4-5. The administrative judge also

informed the parties that they could file a petition for review if they disagreed

with the compliance initial decision. CID at 5. Neither party filed any

submission with the Clerk of the Board within the time limit set forth in 5 C.F.R.

§ 1201.114. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the

administrative judge’s findings of noncompliance have become final, and the

appellant’s petition for enforcement has been referred to the Board for a final

decision on issues of compliance. Goins v. Department of the Army, MSPB

Docket No. SF-3330-21-0214-X-1, Compliance Referral File (CRF), Tab 1.

¶4 On December 21, 2021, the Board issued an acknowledgment order

directing the agency to submit evidence showing that it ha d complied with all

actions identified in the compliance initial decision. CRF, Tab 1 at 3. In a

January 4, 2022 response, the agency stated and provided evidence reflecting that

it reconstructed the hiring process a second time but again did not select the

appellant for the position. CRF, Tab 2. The agency’s evidence included copies

of the resumes of each candidate considered, the scoring matrix used by the

reconstructed hiring board to rate the candidates, the agency’s position

description, and a memorandum signed by the hiring official outlining the steps

that were taken, including removal of the improperly appointed selectee from the

position during the reconstruction. Id.

¶5 On January 10, 2022, the appellant responded to the agency’s submission.

CRF, Tab 3. He alleged that the agency did not afford him an opportunity to

compete in the second hiring reconstruction and that it was unclear whether the

agency’s hiring process complied with Department of Defense Instruction (DODI)

1400.25, Volume 1232, entitled, “DoD Civilian Personnel Management System:

Employment of Family Members in Foreign Areas,” as no information was

provided by the agency as to whether the improperly appointed selectee qualified

for veterans’ preference, military spouse preference, or fami ly member

preference. Id. at 4. He also alleged that the agency had not provided any

supporting documentation to show that he was ever placed on a missed

consideration list, as the agency had previously indicated. Id.; IAF, Tab 5. The

agency did not respond.

¶6 On March 11, 2022, the Board ordered the agency to respond to the

appellant’s allegations of noncompliance, as well as attest to its compliance with

the administrative judge’s orders to properly reconstruct its hiring process that

violated the appellant’s veterans’ preference rights under VEOA. CRF, Tab 4. In

an April 1, 2022 response, the agency averred, and provided evidence showing,

that it reconstructed the hiring process a third time. CRF, Tab 6 at 6, 9, 45. The

agency stated that, in this third reconstruction, it properly applied and considered

the preference entitlements of each candidate, to include the appellant’s family

member preference under DODI 1400.25, Volume 1232, and both the appellant’s

and original selectee’s veterans’ preference rights. Id. Although the

reconstruction did not result in the appellant’s selection, the agency stated that it

had provided the appellant a lawful hiring process consistent with law and was

now in compliance with the administrative judge’s orders. Id. at 8. The agency

further averred that it had placed the appellant on a missed consideration list as of

March 30, 2021, as an interim remedy 2 for the agency’s error in determining the

appellant unqualified for the position at issue. Id. at 7-8, 61.

¶7 On April 7, 2022, the appellant responded to the agency’s submission,

challenging various aspects of the hiring reconstruction and requesting lost wages

and sanctions against the agency. CRF, Tab 7. The agency did not respond.

ANALYSIS

¶8 The Board has jurisdiction to consider an appellant’s claim of agency

noncompliance with a Board decision. See Kerr v. National Endowment for the

Arts, 726 F.2d 730, 733 (Fed.Cir.1984); Weed v. Social Security Administration,

110 M.S.P.R. 468, ¶ 5 (2009). The Board’s authority to remedy noncompliance is

broad and far-reaching and functions to ensure that employees or applicants for

employment are returned to the status quo ante or the position that they would

have been in had the unlawful agency action not occurred. Kerr, 726 F.2d at 733;

Weed, 110 M.S.P.R. 468, ¶ 5. It is the agency's burden to prove by preponderant

The Board did not order the appellant’s placement on the agency’s missed

consideration list as an interim remedy. Instead, this action was both proposed, and

initiated, by the agency. A copy the agency’s missed consideration log, dated March

29, 2022, was provided with the agency’s April 1, 2022 response. CRF, Tab 6 at 61.

evidence that it has fully complied with a final Board decision. Weed,

110 M.S.P.R. 468, ¶ 5. Thus, in the instant case, the agency must show that it

properly reconstructed the hiring process for the position at issue.

¶9 Under VEOA, an appellant whose veterans’ preference rights were violated

with respect to a selection process is entitled to a selection process consistent

with law. Weed, 110 M.S.P.R. 468, ¶ 6. To properly reconstruct a selection, an

agency must conduct an actual selection process based on the same circu mstances

surrounding the original faulty selection. Washburn v. Department of the Air

Force, 119 M.S.P.R. 265, ¶ 14 (2013). This includes taking the original selectee

out of the position, conducting and evaluating an interview of the appellant that

can be meaningfully compared with the original selectee’s interview, and filling

the same number of vacancies as before. Id.

¶10 Here, the agency argues that it has now properly reconstructed the hiring

process and has provided evidence showing that it removed the original selectee

from the position for the reconstruction, reinterviewed the appellant with a hiring

board that included one of the same members of the original hiring board, and

filled the same number of vacancies. CRF, Tab 6. In support, the agency

provided: (1) a Certificate of Eligibles, dated October 7, 2021, containing the

names and preference entitlements for each candidate, including the appellant and

the original selectee, id. at 39; (2) a Candidate Scoring Matrix, containing the

reconstructed hiring board’s ratings for each candidate and identifying the

original selectee as its fourth overall pick and the appellant as its fifth overall

pick, id. at 63; and (3) copies of the appellant’s and original selectee’s resumes,

id. at 64-82.

¶11 In addition, the agency provided the hiring official’s March 25, 2022

affidavit in which he attested that “[u]pon completion of the reconstructed hiring

process, [he] affirmed that [the original selectee] should be recommended for the

[position at issue]” for the following reasons: (1) the original selectee’s

pre-interview scores were higher than the appellant’s scores; (2) both the original

selectee and the appellant were entitled to veterans’ preference; (3) upon

comparison of their resumes, the original selectee’s prior work experience was a

better fit for the position compared to the appellant’s “due to skill set s required to

operate in Global Command Support System – Army programs and fulfilling

related Property Book Office duties and responsibilities”; (4) the hiring board had

determined that the original selectee was more qualified for the position; and

(5) the original selectee hypothetically would have accepted the position at issue,

as demonstrated by the fact that the original selectee accepted the position. Id.

at 45. Also attached to the hiring official’s affidavit were four “Memorandum

[sic] for Record,” including three documenting his directives to the reconstructed

hiring board and one signed by a member of the hiring board documenting the

hiring board’s reconstructed interview of the appellant on March 22, 2022, and its

unanimous post-interview recommendation that, based on its review of pre- and

post-interview documentation and candidate scores, the hiring official should hire

the original selectee. Id. at 47-50.

¶12 In his response to the agency’s compliance submission, however, the

appellant argues that the agency did not provide him a lawful selection process.

For the reasons that follow, we find no merit to the appellant’s arguments.

¶13 First, the appellant argues that the agency did not provide him a lawful

selection process because he was not asked the same interview questions as the

original selectee during his reconstructed interview. CRF, Tab 7 at 5. Although

the Board ordered the agency to submit evidence showing that the appellant was

asked the same interview questions as the original selectee during his

reconstructed interview, CRF, Tab 4 at 5, it is not necessary to a lawful

reconstructed selection process as long as the agency can otherwise show that it

conducted and evaluated an interview of the appellant that is meaningfully

comparable with the original selectee’s interview. See Washburn, 119 M.S.P.R.

265, ¶ 14. Here, the agency asserts that, although no record of the exact

questions asked by the original board was retained, the hiring official directed the

reconstructed hiring board to make all efforts to ask the appellant the same

interview questions as the original selectee. CRF, Tab 6 at 43-44. To that end,

the reconstructed hiring board member who served on the original hiring board

advised the other members regarding the original hiring board’s interview

practices, subject matter of interview questions asked, and the reasons for its

decision to hire the original selectee. Id. at 12, 44, 50. The agency further

asserts that the appellant was asked questions of the same subject matter and that

his reconstructed interview lasted roughly the same duration o f time as the

selected candidate’s interview. Id. at 11. In light of these circumstances, we find

that the agency satisfied its obligation to conduct and evaluate an interview of the

appellant that was meaningfully comparable with the original selectee’s

interview, even though it was unable to ask the appellant identical questions to

those asked during the original hiring process. 3 See Washburn, 119 M.S.P.R. 265,

¶ 14.

¶14 Next, the appellant argues that the reconstructed selection process was not

lawful because his status as a preference eligible under VEOA and his family

member preference should have placed him “at the top of the lis ting for

consideration” by the agency. CRF, Tab 7 at 4. However, the appellant’s belief

that he should have been ranked higher than the other applicants does not

establish that the agency failed to provide him a lawful selection process. The

agency has provided as evidence a copy of the full, ranked list of candidates that

it considered during the reconstruction, accompanied by the candidates’ scores

and preference entitlements. CRF, Tab 6 at 39, 43-44, 63. This evidence shows

The appellant claims that the agency’s failure to maintain the original selectee’s

interview questions is a violation of 29 C.F.R. § 1602.14, which requires employers to

maintain personnel or employment records related to hiring for 1 year. CRF, Tab 7

at 6. Assuming arguendo that 29 C.F.R. § 1602.14 is applicable here, the agency’s

compliance (or lack thereof) with this records management provision does not affect the

dispositive issue before us of whether the agency provided the appellant a lawful

selection process.

that both the appellant and the selected candidate are entitled to veterans’

preference, as they are both preference eligibles, 4 and that the agency considered

the preference entitlements of each candidate during the reconstruction, including

the appellant’s family member preference. CRF, Tab 6 at 6, 39, 45. Accordingly,

we find that the agency properly applied and considered the appellant’s veterans’

preference and family member preference in reconstructing the hiring process.

¶15 The appellant also appears to argue that the recon structed hiring process

was not lawful because the agency may not have considered his eligibility for

Schedule A hiring or reinstatement under 5 C.F.R. § 315.401. CRF, Tab 7 at 4.

However, Schedule A hiring may be used only in a noncompetitive hiring

process; therefore, it was unavailable in the reconstructed hiring process here for

a competitive service position. See 5 C.F.R. § 213.3102(u); CRF, Tab 6 at 27. In

addition, while “an agency may appoint by reinstatement to a competitive service

position a person who previously was employed under career or

career-conditional appointment (or equivalent),” reinstatemen t eligibility is not a

guarantee that an employee will be considered for a specific position or be

appointed to it. See 5 C.F.R. § 315.401(a) (emphasis added); see also Hicks v.

Department of the Navy, 33 M.S.P.R. 511 (1987) (the Board lacks jurisdiction

over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R.

§ 315.401). Accordingly, the appellant’s arguments do not demonstrate any error

in the reconstructed hiring process.

¶16 Finally, the appellant argues, without evidence, that it is his belief that the

agency never conducted interviews of the candidates during the original hiring

process. CRF, Tab 7 at 6. However, the agency’s evidence reflects otherwise. In

particular, the agency provided a scoring matrix showing the dates that the

As both the selected candidate and the appellant are preference eligibles under VEOA,

the agency was not required to seek preapproval from the Office of Personnel

Management before passing over the appellant, regardless of any compensable

service-connected disability he may have. See 5 U.S.C. § 3318(c)(1)-(2).

original hiring board conducted these interviews and its interview remarks for

each candidate. Id. at 62-63; CRF, Tab 2 at 9. The agency’s evidence also shows

that one of the three members of the reconstructed hiring board served on the

original hiring board and advised the other members regarding the original hiring

board’s interview practices, subject matter of interview questions asked, and the

reasons for its decision to hire the original selectee. 5 CRF, Tab 6 at 12, 44, 50.

Therefore, we find that the agency’s evidence outweighs the appellant’s cursory

and unsupported allegation and provides no basis to find that the agency did not

conduct interviews during the original hiring process or otherwise provide him a

lawful reconstructed selection process.

¶17 We have considered the appellant’s myriad other challenges to the agency’s

compliance and find them unpersuasive.

¶18 In consideration of the agency’s evidence of compliance, and all arguments

put forward by the appellant, we find that the agency’s recon struction of its hiring

process is consistent with law and provided the appellant an opportunity to

compete for the position at issue, with his veterans’ preference rights and family

member preference properly applied and considered. CRF, Tabs 6-7.

Specifically, we find that the agency’s reconstruction was based on the same

circumstances surrounding the original faulty selection and involved taking the

original selectee out of the position, conducting and evaluating an interview of

the appellant that was meaningfully comparable with the original selectee’s

interview, and filling the same number of vacancies. See Washburn, 119

M.S.P.R. 265, ¶ 14. As the lawful reconstructed hiring process demonstrated

that, in the absence of a violation of the appellant’s veterans’ preference rights,

the agency would not have selected him for the position because he was not the

As one of the members of the original hiring board served on the reconstructed hiring

board, only the appellant was required to be interviewed during the reconstruction. The

agency was not required to re-interview the other candidates. See Phillips v.

Department of the Navy, 114 M.S.P.R. 19, ¶ 18 (2010).

best candidate, he has not suffered any lost wages or benefits that would entitle

him to an award under 5 U.S.C. § 3330c(a). See Lodge v. Department of the

Treasury, 107 M.S.P.R. 22, ¶ 15 (2007). Accordingly, his requests to be issued

such an award are denied. 6

¶19 In light of the foregoing, we find that the agency is now in compliance and

dismiss the appellant’s petition for enforcement. This is the final decision of the

Merit Systems Protection Board in this compliance proceeding. Title 5 of the

Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS 7

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

We additionally deny the appellant’s request for sanctions or other “follo w-up

action[s].” CRF, Tab 7 at 7. The Board’s ability to impose sanctions is a means to

enforce compliance. Eikenberry v. Department of the Interior, 39 M.S.P.R. 119, 121

(1988). Here, the agency has submitted evidence of compliance, and therefore, it would

be inappropriate for the Board to impose sanctions at this time. Id.

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.

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 resp ective

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 Employm ent

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. 8 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:

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 ju dicial 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.