The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECIL AVERY, DOCKET NUMBER
Appellant, DC-3330-17-0206-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 27, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cecil Avery, Union, Kentucky, pro se.
Judith A. Fishel, APO, AE, 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 of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contain s erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as expressly
MODIFIED to provide the appellant with notice of the elements of a
right-to-compete claim and clarify that we also consider his claim as a
right-to-compete claim, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant applied and was tentatively selected for the Information
Technology (IT) Specialist (INFOSEC), GS-2210-12, position under vacancy
announcement number EUJD163424411675519. Initial Appeal File (IAF), Tab 6
at 33-34, 56-61. The agency subsequently withdrew its tentative offer on the
basis that the appellant had retired from Federal service and that it did not intend
to pursue hiring him as a reemployed annuitant. 2 Id. at 25. As support, the
agency provided a copy of the Department of Defense (DOD) Instruction, which
stated that reemployed annuitants should be hired “to meet critical mission
needs,” such as when positions are hard to fill. Id. at 62-64.
¶3 The appellant filed a VEOA complaint with the Department of Labor
(DOL), but DOL notified him that it did not find evidence that the agency had
2
A reemployed annuitant is a person who is receiving a retirement annuity and, at the
same time, is earning a paycheck as a Federal employee.
3
violated his rights. IAF, Tab 6 at 14-17, Tab 10 at 24-25. He subsequently filed
this timely Board appeal and did not request a hearing. IAF, Tab 1. On the basis
of the written record, the administrative judge issued an initial decision denying
the appellant’s request for corrective action. IAF, Tab 17, Initial Decision (ID). 3
¶4 The appellant has filed a petition for review, the agency has responded in
opposition to the appellant’s petition, and the appellant has replied. Petition for
Review (PFR) File, Tabs 1, 3-4. 4
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The appellant argues that the agency should not have withdrawn its offer as
he was willing to forfeit his disability annuity to accept the position and waive
simultaneous compensation as an annuitant and as an employee. 5 PFR File, Tab 1
3
Neither the administrative judge nor the agency provided the appellant notice of the
elements of a right-to-compete claim and instead provided only the notice for a
veterans’ preference claim. ID at 2; IAF, Tab 3 at 2-3, Tab 6 at 7, Tab 8 at 2, Tab 9
at 9, Tabs 12, 15. This error is not prejudicial, however, because the appellant has
established jurisdiction over his claim, and the record is sufficiently developed such
that there is no genuine dispute of material fact and the agency must prevail as a matter
of law. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
(finding that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversing an initial decision).
4
Citing the Board’s regulation regarding the 10-day timeframe for filing a reply to a
response to a petition for review, the appellant asserts that the agency’s response to his
petition for review is untimely. PFR File, Tab 4 at 4; see 5 C.F.R. § 1201.114(e).
However, the agency timely filed its response on May 8, 2017, within the 25 -day
timeframe for doing so. PFR File, Tabs 1, 3; see 5 C.F.R. § 1201.114(e).
5
On review, the appellant has attached the DOD Instruction entitled “Policy guidance
on the reemployment of civilian retirees under the National Defense Authorizat ion Act
for Fiscal Year 2010,” which was dated Friday, December 9, 2011. PFR File, Tab 1
at 6-9. In his reply, he has submitted evidence regarding a portable building that he
could not afford to move due to his financial state as a result of the agency r escinding
its offer. PFR File, Tab 4 at 8-9. The Board generally will not consider evidence
submitted for the first time on review absent a showing that the documents and the
information contained in the documents were unavailable before the record close d
below despite due diligence and that the evidence contained therein is of sufficient
weight to warrant an outcome different from that of the initial decision. See Cleaton v.
Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015), aff’d, 839 F.3d 1126 (Fed. Cir.
2016). We do not consider these documents as the Instruction and the information
4
at 4-5. He further states that, even if the Board finds that he was seeking an
appointment as a reemployed annuitant, the agency should have hired him
through the reemployed annuitant program for positions that are hard to fill. Id.
at 5.
¶6 The appellant asserted that the agency denied him the opportunity to
compete for the IT Specialist (INFOSEC) position as a rehired annuitant. 6 IAF,
Tab 1 at 4. To establish Board jurisdiction over a right-to-compete claim under
5 U.S.C. § 3330a(a)(1)(B), an appellant must (1) show that he exhausted his DOL
remedy and (2) make nonfrivolous allegations that (i) he is a veteran w ithin the
meaning of 5 U.S.C. § 3304(f)(1), (ii) the actions at issue took place on or after
the December 10, 2004 enactment date of the Veterans’ Benefits Improvement
Act of 2004, and (iii) the agency denied him the opportunity to compete under
merit promotion procedures for a vacant position for which the agency accepted
applications from individuals outside its own workf orce in violation of 5 U.S.C.
§ 3304(f)(1). 5 U.S.C. § 3330a(a)(1)(B); Becker v. Department of Veterans
Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); 5 C.F.R. § 335.106. It is undisputed that
the appellant exhausted his remedy with DOL and that the action at issue took
place after December 10, 2004. IAF, Tab 12 at 2. We also find that the appellant
is a veteran within the meaning of 5 U.S.C. § 3304(f)(1) as he retired from the
U.S. Air Force after over 20 years of service. IAF, Tab 6 at 82. Further, the
appellant has nonfrivolously alleged that the agency denied him the opportunity
to compete for a vacant position for which it accepted applications from
individuals outside its own workforce as it advertised a position for status
candidates (merit promotion and VEOA eligible), accepted outside applicants,
contained therein is not new, and the information regarding the building is immaterial
to the issue of whether the agency properly considered the appellant’s application.
6
We clarify that we consider the appellant’s claim that the agency violated his right
under 5 U.S.C. § 3304(f)(1) to compete for the position. 5 U.S.C. § 3330a(a)(1)(B); see
Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010); 5 C.F.R.
§ 335.106.
5
and did not ultimately select him for the position. Id. at 40-44, 56-61; see
Montgomery v. Department of Health and Human Services, 123 M.S.P.R. 216, ¶ 5
(2016) (finding that the Board had jurisdiction over the appellant’s
right-to-compete claim).
¶7 Nevertheless, although we find jurisdiction over the appellant’s claim, we
find that he is not entitled to corrective action as there is no genuine dispute of
material fact and the agency must prevail as a matter of law. 7 5 U.S.C.
§§ 3330a-3330c; see Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349,
¶ 9 (2008) (stating that the Board may decide a VEOA appeal on the merits,
without a hearing, when there is no genuine dispute of material fact and one party
must prevail as a matter of law). 8 Here, the undisputed evidence establishes that
the agency accepted the appellant’s application, reviewed it, initially determined
he was qualified, and even tentatively offered him the position. IAF, Tab 6
at 33-35. Under these circumstances, we must find that the agency considered the
appellant’s application sufficiently such that it afforded him the opportunity to
compete for the position. 9 See Downs v. Department of Veterans Affairs,
110 M.S.P.R. 139, ¶ 13 (2008) (finding that the agency allowed the appellant the
7
A factual dispute is “material” if, in light of the governing law, its resolution could
affect the outcome. Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5
(2009). A factual dispute is “genuine” when there is sufficient evidence favoring the
party seeking an evidentiary hearing for the administrative judge to rule in favor of that
party should that party’s evidence be credited. Id.
8
In this case, the appellant did not request a hearing. IAF, Tab 1. Thus, regardless of
the Board’s authority, the case would have been disposed of without a hearing.
9
The Board has held that the right to compete does not preclude an agency from
eliminating a veteran or a preference eligible from further consideration for a position
based on his qualifications for the position. See, e.g., Harellson v. U.S. Postal Service,
113 M.S.P.R. 534, ¶ 11 (2010) (finding that the agency could properly consider
problems with the appellant’s past performance in determining that he was no t qualified
for the vacant position). Thus, to the extent that the agency asserted that the appellant
was not qualified for the position on the basis of his status as an annuitant, we find that
it was entitled to exclude him on this basis.
6
opportunity to compete for the position at issue when he was interviewed for the
position and his name was forwarded to the selecting official).
¶8 Further, we find no merit to the appellant’s argument that the agency was
required to seek an exception to its general hiring process by using its authority to
hire him as a reemployed annuitant. Agencies are permitted to fill vacancies by
any authorized method. Montgomery, 123 M.S.P.R. 216, ¶ 6. The Board will
review the method used by an agency to fill a vacancy to determine if it is
authorized when the use of an unauthorized method could have denied covered
individuals the right to compete. Id. We find that the agency’s refusal to make a
special exception to its generally and undisputedly authorized procedures does
not constitute such an unauthorized method.
¶9 We conclude that the appellant has failed to demonstrate a genuine dispute
of material fact as to whether the agency violated his right to compete because the
agency properly considered his application and did not use an unauthorized
method of hiring. Accordingly, we deny his request for corrective action. 10 See
Downs, 110 M.S.P.R. 139, ¶¶ 13-14 (denying the appellant’s request for
corrective action on the basis that there was no genuine dispute of material fact
because he was clearly afforded the right to compete in that his name was among
those forwarded to the selecting official for consideration).
NOTICE OF APPEAL RIGHTS 11
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
10
We find no reason to disturb the administrative judge’s finding that the agency did
not improperly pass over the appellant’s application. ID at 5-6; see 5 U.S.C. § 3318(a);
Goodin v. Department of the Army, 123 M.S.P.R. 316, ¶ 3 n.1 (2016) (describing the
passover process).
11
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.
7
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.
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
8
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, 1 0, 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.
9
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
10
competent jurisdiction. 12 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.
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.
12
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.
11
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.