# Brandon Goins v. Department of the Army

> Merit Systems Protection Board · September 23, 2022

URL: https://www.frixlaw.com/law-library/cases/9373396

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 23, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

BRANDON M. GOINS, DOCKET NUMBER
Appellant, SF-3330-21-0214-X-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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
3

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
4

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

2
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.
5

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
6

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
7

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

3
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.
8

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

4
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).
9

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

5
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).
10

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

6
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.
7
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.
11

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
12

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
13

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:

8
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.
14

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the li nk below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9373396. Public record. Not legal advice.