Edwin Dilone v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EDWIN E. DILONE, DOCKET NUMBER

Appellant, DC-3330-17-0702-I-1

v.

DEPARTMENT OF VETERANS DATE: March 29, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Edwin E. Dilone, Eagle Point, Oregon, pro se.

Amanda E. Shaw, Esquire, Roanoke, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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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) and dismissed his employment practices claim

for lack of jurisdiction. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

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

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 As further detailed in the initial decision, the agency posted vacancy

announcement VHA-658-17-RG-1941474-BU, a hybrid title 38 Social Worker

position, to be filled at either the GS-9 or GS-11 level. Initial Appeal File (IAF),

Tab 8 at 35-40, Tab 15, Initial Decision (ID) at 2; see generally Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 245, ¶¶ 10-12 (2010) (discussing

hybrid title 38 positions). Among other things, the announcement explained that

the GS-9 level was for social workers with less than 1 year of experience and

social workers who were not yet licensed or certified at the independent practice

level. IAF, Tab 8 at 37. The higher GS-11 level required a minimum of 1 year of

experience and “licensure or certification in a state at the independent practice

level.” Id.

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¶3 After the appellant and numerous others applied, the agency sorted

applicants into three groups. The first contained applicants who met the

minimum requirements to be a GS-11 Social Worker. Id. at 25-28. The second

contained applicants who met the minimum requirements to be a GS -9 Social

Worker and had veterans’ preference. Id. at 29-31. The third contained

applicants who met the minimum requirements to be a GS-9 Social Worker and

were also Federal employees. Id. at 32-34. The appellant’s application was

included in the second group, for individuals qualified to be a GS -9 Social

Worker with veterans’ preference. Id. at 30. The selecting official chose a

candidate from the group of applicants who met the minimum requirements to be

a GS-11 Social Worker. Id. at 24-25, 27.

¶4 The appellant filed a veterans’ preference complaint with the Department of

Labor (DOL) concerning his nonselection. IAF, Tab 4 at 31. Once DOL closed

the matter, this appeal followed. IAF, Tab 1. Based on the appellant’s

allegations, the administrative judge afforded him an opportunity to meet his

jurisdictional burden as both a VEOA claim, IAF, Tab 3, and an employm ent

practices claim, IAF, Tab 12. Without holding the requested hearing, the

administrative judge found that the Board had jurisdiction over the appellant’s

VEOA claim but denied his request for corrective action. ID at 4 -7. She

dismissed the employment practices claim for lack of jurisdiction. ID at 7-9. The

appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.

The agency has filed a response. PFR File, Tab 3.

¶5 The Board has jurisdiction over two types of VEOA claims: (1 ) the denial

of a right to compete; and (2) the violation of a statute or regulation relating to

veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference

claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see

generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015). To

establish Board jurisdiction over a right-to-compete VEOA claim, the appellant

must: (1) show that he exhausted his remedy with DOL; and (2) make

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nonfrivolous allegations that (i) he is a veteran within 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 (ii i) 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 workforce in violation of 5 U.S.C. § 3304(f)(1). Becker v.

Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010).

¶6 To establish Board jurisdiction over a veterans’ preference VEOA claim,

the appellant must: (1) show that he exhausted his remedy with DOL; and

(2) make nonfrivolous allegations that (i) he is a preference eligible within the

meaning of VEOA; (ii) the action at issue took place on or after the October 30,

1998 enactment date of VEOA; and (iii) the agency violated his rights under a

statute or regulation relating to veterans’ preference. Miller v. Federal Deposit

Insurance Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 818 F.3d 1361 (Fed.

Cir. 2016). To prevail on the merits of either type of VEOA claim, the appellant

must prove the jurisdictional elements by preponderant evidence. See Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 19 (2010); Isabella v.

Department of State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007), aff’d on recons.,

109 M.S.P.R. 453 (2008).

¶7 Although the appellant repeatedly has referenced VEOA’s right-to-compete

provisions, below and on review, it appears that the corresponding arguments are

based on a misunderstanding of the law. IAF, Tab 4 at 4-5; PFR File, Tab 1

at 4-6. In a right-to-compete VEOA appeal under 5 U.S.C. § 3304(f)(1), the

Board does not determine whether a preference eligible is qualified, or whether

he should have been selected, but rather, the Board only assesses whether the

preference eligible was permitted to compete for the position on the same basis as

other candidates. Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11

(2010). The administrative judge found that there was undisputed evidence

showing that the appellant had the opportunity to compete for the Social Worker

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position, ID at 6, and we agree. The agency accepted his application and properl y

included him on its list of applicants qualified for the position at the GS -9 level

with veterans’ preference. Compare IAF, Tab 4 at 14 (appellant’s application,

with responses concerning his qualifications), with IAF, Tab 8 at 29-30

(appellant’s inclusion on the list of applicants qualified at the GS-9 level with

veterans’ preference), 37 (vacancy announcement’s explanation of the differing

qualifications required for the GS-9 level and the GS-11 level). While the

appellant disputes the agency’s selecting someone qualified for the GS-11 level,

he has failed to prove or even nonfrivolously allege that he was denied the right

to compete.

¶8 The appellant’s veterans’ preference claim is also unavailing. As stated

above, the agency properly determined that the appellant was qualified for the

GS-9 level and included him on the corresponding certificate of applicants with

veterans’ preference. IAF, Tab 8 at 8, 29-30. However, the agency ultimately

selected an applicant from the certificate of candidates qualif ied for the GS-11

level, none of which were preference eligible. Id. at 8, 24-28.

¶9 On review, the appellant suggests that the agency failed to select him

because he lacked a qualification that was not listed on the vacancy

announcement, PFR File, Tab 1 at 5, but the announcement reflects otherwise.

The vacancy announcement clearly states that, to be qualified at the higher GS -11

level, an applicant must possess “a minimum of 1 year of post -MSW degree

experience in the field of health care social work (VA or non-VA experience) and

licensure or certification in a state at the independent practice level.” IAF, Tab 8

at 37. The appellant acknowledged that he lacked those qualifications on his

application. IAF, Tab 4 at 14.

¶10 The appellant also suggests that the agency violated his veterans’ preference

rights by selecting a nonveteran qualified at the GS-11 level over him, a

preference-eligible veteran qualified at the GS-9 level. PFR File, Tab 1 at 5-8

(citing 5 C.F.R. §§ 302.104, 302.304, 302.401). But again, the appellant appears

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to misunderstand the applicable provisions of law and regulation. See generally

Abell v. Department of the Navy, 343 F.3d 1378, 1384 (Fed. Cir. 2003)

(recognizing that an agency “is not required to hire a preference -eligible veteran

if . . . it does not believe that the candidate is qualified or possesses the necessary

experience”). The Board considered a similar scenario in Dale v. Department of

Veterans Affairs, 102 M.S.P.R. 646 (2006). In Dale, an agency advertised a

position at both the GS-4 and GS-5 levels. Id., ¶ 11. The appellant in Dale was

qualified at the GS-4 level, but not the GS-5 level. Id. Therefore, his name was

properly ranked and forwarded with other qualified GS-4 applicants. Id.

However, the selecting official hired an applicant from the list of applicants

qualified at the GS-5 level, without even looking at the list of GS-4 applicants,

based on her feelings about the experience needed to fill the role. Id., ¶ 13. The

Board found that this did not violate any veterans’ preference statute or

regulation. Id. We reach the same conclusion here. While the appellant would

have us find that the agency was required to select a preference -eligible applicant

qualified as a GS-9 over a nonveteran applicant qualified as a GS-11, he has

failed to identify any law, rule, or regulation requiring the same. Therefore, we

agree with the administrative judge’s decision, denying his request for corrective

action under VEOA. ID at 6-7.

¶11 In his petition for review, the appellant does not clearly reassert his

employment practices claim. Nevertheless, we have reviewed the matter and

agree with the administrative judge’s conclusion that the appellant cannot

establish jurisdiction over his claim. ID at 7-9. The position at issue is in the

excepted service, not the competitive service. Compare IAF, Tab 8 at 35

(recognizing that the Social Worker position the appellant applied for was in the

excepted service), with 5 C.F.R. §§ 300.101-300.104 (providing Board appeal

rights concerning employment practices within the competitive service);

McKnight v. Department of Defense, 103 M.S.P.R. 255, ¶¶ 9-10 (2006)

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(recognizing that employment practice appeals are limited to competitive-service

positions), aff’d per curiam, 227 F. App’x 913 (Fed. Cir. 2007).

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

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).

3

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

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

8

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

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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. ma il, 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

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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of App eals 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

4

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judic ial 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. P ub. L. No. 115-195,

132 Stat. 1510.

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for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

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

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

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.