Opinion

Eric Williams v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 26, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding that the agency violated the veterans’ preference rights afforded to the preference-eligible applicant under 5 U.S.C. § 3311 by failing to consider his relevant military experience in determining his eligibility

How later courts described this case

finding that the agency violated the veterans’ preference rights afforded to the preference-eligible applicant under 5 U.S.C. § 3311 by failing to consider his relevant military experience in determining his eligibility

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC WILLIAMS, DOCKET NUMBER

Appellant, DC-3330-18-0427-I-1

DEPARTMENT OF DEFENSE, DATE: August 26, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eric Williams, North Charleston, South Carolina, pro se.

Katherine Largo Yourth, Esquire, Richmond, 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 under the Veterans Employment

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

that he is entitled to corrective action because he proved that the agency violated

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 id entified 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 5 U.S.C. §§ 3311(2) and 3319, 2 5 C.F.R.

§ 302.302(d), and another provision that appears to be from the Office of

Personnel Management (OPM) Delegated Examining Operations Handbook

(DEOH), 3 by rating him ineligible based only on his occupational assessme nt; by

rating him ineligible, regardless, because his response to Question #1 of the

assessment showed that he rated himself as minimally qualified ; by failing to

place him in the highest category; and by selecting a nonveteran over him without

following the passover procedures. Petition for Review (PFR) File, Tab 2 at 5, 9-

12. He also argues that the administrative judge was biased because he ruled for

the agency, declined his request for a hearing, failed to issue a close of record

order, and denied him an opportunity to respond to the agency’s evidence before

issuing the initial decision. Id. at 6-10.

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

circumstances: the initial decision contains erroneous findings of material fac t;

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

The appellant argues that the agency violated the passover procedures identifi ed in

5 U.S.C. § 3318, which apply to the traditional rating and ranking process. Here, the

agency utilized category rating in making a selection for the position at issue. Initial

Appeal File, Tab 5 at 49. Section 3319 sets forth the process for utilizing category

rating, including the procedures for placing preference-eligible candidates in categories

in accordance with their veterans’ preference and passing over preference -eligible

candidates. 5 U.S.C. § 3319(a), (b), (c)(7). We therefore construe the appellant’s

argument as raising a section 3319 claim.

See Office of Personnel Management, Delegated Examining Operations Handbook,

chapter 5, section B at 105 (May 2007), https://www.opm.gov/policy-data-

oversight/hiring-information/competitive-hiring/deo_handbook.pdf (last visited Aug.

19, 2022).

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 appellant has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

address the appellant’s claims that the administrative judge committed rever sible

procedural errors and to consider in more detail his arguments that were not

addressed below, we AFFIRM the initial decision.

¶3 The administrative judge did not address whether the agency allowed the

appellant to credit all of his experience when completing the assessment. Under

5 U.S.C. § 3311, a preference eligible is entitled to have a broad range of prior

experience considered, including relevant military experience and experience

gained “in religious, civic, welfare, service, and organizational activities.” No

aspect of the application materials restricted the appellant from considering that

type of experience in assessing whether he met the specialized experience

requirement for the position and in selecting the most appropriate response to

Question #2 of the assessment. Initial Appeal File (IAF), Tab 5 at 21, 47-48; see

5 U.S.C. § 3311; cf. Kirkendall v. Department of the Army, 573 F.3d 1318,

1324-25 (2009) (finding that the agency violated the veterans’ preference rights

afforded to the preference-eligible applicant under 5 U.S.C. § 3311 by failing to

consider his relevant military experience in determining his eligibility). Rather,

the announcement apprised applicants that such experience would be credited.

IAF, Tab 5 at 47-48. To the extent that the appellant did not consider those

experiences in selecting an answer to Question #2, that error is attributable to

him, not the agency.

¶4 Further, the appellant’s claim that the DEOH required the agency to

consider his application attachments in determining his eligibility is without

merit. PFR File, Tab 2 at 11-12; Initial Appeal File (IAF), Tab 8 at 4. The

DEOH is not a statute or regulation and therefore cannot support a claim for

corrective action under VEOA. Cf. Graves v. Department of Veterans Affairs,

117 M.S.P.R. 491, ¶ 9 (2012) (finding that, to the extent the appellant alleged that

the agency violated OPM’s VetGuide, he failed to nonfrivolously allege a

violation of statute or regulation relating to veterans’ preference). Because the

appellant rated himself not minimally qualified in his assessment, he was not

entitled to be considered for the next phases of the selection process, such as

being placed in a category in accordance with his veterans’ preference. IAF, Tab

6, Initial Decision (ID) at 5-6; IAF, Tab 5 at 10-12, 18, 20-21, 47-48; see

Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, 539 (2010) (observing that

no authority requires that a preference eligible be considered at every stage of the

selection process); Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646,

¶ 13 (2006) (explaining that VEOA does not provide that veterans will be

considered for positions for which they are not qualified).

¶5 In addition, we agree with the administrative judge that a hearing was

unnecessary, as the parties did not dispute the dispositive factual issues—that the

appellant indicated in his online assessment that he lacked the specialized

experience and/or education for the position at the advertised levels and that his

application was automatically removed from consideration as a result. ID at 5;

see Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 10 (2010) (explaining

that the Board may decide the merits without a hearing when there is no genuine

dispute of material fact and one party must prevail as a matter of law ). However,

as correctly argued by the appellant, the administrative judge erred by failing to

advise him that she would not be holding his requested hearing, set a date on

which the record would close, or allow the parties to submit further argument and

evidence on the merits of the appeal before the close of the record. 4 See Jarrard,

The appellant cites to Schucker v. Federal Deposit Insurance Corporation, 401 F.3d

1347 (Fed. Cir. 2005), as support for his contention that the administrative judge

committed reversible error in denying him an opportunity to submit rebuttal evidence .

PFR File, Tab 2 at 9-10. In Schucker, the Federal Circuit found that the Board had a

longstanding policy of finding that an administrative judge has committed error by

113 M.S.P.R. 502, ¶ 11. Because of that error, we have considered all of the

appellant’s submissions from below and on review, including his May 7, 2018

response that he submitted to the administrative judge after the initial decision’s

issuance. PFR File, Tabs 2, 4; IAF, Tabs 1, 4, 8. Accordingly, the appellant has

not shown how, under these circumstances, the administrative judge’s procedural

errors prejudiced his substantive rights; therefore, those errors do not provide a

basis for review. See Heckman v. Department of the Interior, 106 M.S.P.R. 210,

¶ 13 (2007) (finding no reversible error because the appellant did not show that

the cancellation of his requested hearing prejudiced his substantive rights under

VEOA); see generally Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127

(1981) (finding that an administrative judge’s procedural error is of no legal

consequence unless it is shown to have adversely affected a party’s substantive

rights).

¶6 Finally, in making a claim of bias or prejudice against an administrative

judge, a party must overcome the presumption of honesty and integrity that

accompanies administrative adjudicators. Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct

during the course of a Board proceeding warrants a new adjudication only if his

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)). The appellant’s claims, which do not relate to any extrajudicial

conduct by the administrative judge, neither overcome that presumption, nor

establish a deep-seated favoritism or antagonism.

closing the record without allowing the parties an opportunity to submit rebuttal

evidence. 401 F.3d at 1355-57. Although Schucker did not involve a VEOA appeal,

the Board’s approach in VEOA appeals is consistent with the Federal Circuit’s holding

in that case.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 s ituation 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).

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.

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 appea ls of

competent jurisdiction. 6 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