Opinion

Edwin Rector v. Department of the Air Force

Court: Merit Systems Protection Board
Filed: Feb 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EDWIN RECTOR, DOCKET NUMBER

Appellant, DC-3330-19-0364-I-1

DEPARTMENT OF THE AIR FORCE, DATE: February 20, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Adam P. Grogan , Esquire, Albany, New York, for the appellant.

Matthew John Mackey , Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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). On petition for review, the appellant

disagrees with the administrative judge’s finding that the agency honored his

right to compete for the position at issue and argues that the administrative judge

erred in finding that the agency properly used the merit promotion process to fill

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the position. 2 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. Except as expressly MODIFIED by

this Final Order to clarify that the instructions for uploading a resume to the

USAJOBS website specifically advised the appellant that he should not include

his Social Security Number (SSN) and other personal or sensitive information, we

AFFIRM the initial decision. 3

The appellant also argues, for the first time on review, that the agency and the

administrative judge violated the Administrative Procedure Act (APA). Petition for

Review File, Tab 4 at 3-4. The Board will not consider an argument raised for the first

time in a petition for review absent a showing that it is based on new and material

evidence not previously available despite the party’s due diligence. Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant makes no such

showing. Thus, we have not considered it. Nevertheless, the APA, 5 U.S.C. §§ 551

et seq., is not generally applicable to Board procedures. Lee v. U.S. Postal Service,

48 M.S.P.R. 274, 281 (1991); see McDougall v. Social Security Administration ,

114 M.S.P.R. 534, ¶ 7 (2010) (stating that administrative law judges are entitled to have

their appeals adjudicated under the APA, whereas other Federal employees are not).

The appellant does not explain how the APA applies in this case.

On May 18, 2020, the appellant filed a motion for leave to file a supplement to his

petition for review. Petition for Review (PFR) File, Tab 9. He contends that the

supplement will “clarify and narrow” the issues raised in the agency’s response to his

petition for review. Id. at 1. The appellant filed his petition for review on

September 23, 2019. PFR File, Tab 4. In the acknowledgment letter, the Office of the

Clerk of the Board informed the appellant that he may file a reply to the agency’s

The administrative judge found that the appellant established Board

jurisdiction over his VEOA appeal because he exhausted his remedy before the

Department of Labor (DOL) and nonfrivolously alleged that he was denied the

right to compete for an agency position because his application was disqualified

based on his inclusion of personally identifiable information (PII) in his resume.

IAF, Tab 12 at 3; ID at 3. We agree with the administrative judge that the

appellant established jurisdiction over his VEOA appeal. ID at 1; IAF, Tab 12

at 2-3; Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010)

(finding that, to establish Board jurisdiction over a “right to compete” appeal

under 5 U.S.C. § 3330a(a)(1)(B), an appellant must: (1) show that he exhausted

his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is a

veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the action 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, in violation of 5 U.S.C.

§ 3304(f)(1), 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). Nevertheless, for the following reasons,

we find that the administrative judge properly denied the appellant’s request for

corrective action.

The appellant argues on review that the policy that the agency claimed he

violated is merely an internal agency management procedure that does not

override veterans’ preference rights. PFR File, Tab 4 at 2-3. However, the

agency established that the proscription concerning the inclusion of PII in a

resume is applied to all candidates, as all applicants were screened in the same

response to his petition for review within 10 days of the agency’s service of its

response. PFR File, Tab 5 at 1. The agency served its response on October 18, 2019.

PFR File, Tab 6. Therefore, the time for the appellant to file a reply to the agency’s

response closed on October 28, 2019, as did the record on review. PFR File, Tab 5 at 1;

see 5 C.F.R. § 1201.114(e). The appellant did not file a reply to the agency’s response

before the deadline. Nor has the appellant explained why good cause exists for his

failure to do so. His motion to file a supplement addressing the issues in the agency’s

response to his petition for review over 6 months late is denied.

manner. IAF, Tab 7 at 14, 77, 81, Tab 13 at 19-22, 29. In the vacancy

announcement, applicants were cautioned that they will not be considered if their

resume includes any inappropriate material or content. IAF, Tab 7 at 77, Tab 13

at 19. The USAJOBS website page where applicants submit their resumes clearly

instructs applicants not to include, among other things, their SSN or other

personal or sensitive information. IAF, Tab 13 at 20, 29. Because the appellant

included his unredacted Certificate of Release or Discharge from Active Duty,

Department of Defense Form DD-214 (DD-214) as part of his resume, 4 which

included his birth date and SSN, he was deemed ineligible. IAF, Tab 7 at 61,

Tab 13 at 19, 21. Because the right to compete required by 5 U.S.C. § 3304(f)(1)

is satisfied by participation in the selection process on the same grounds as other

candidates, and the record reflects that to be the case here, we agree with the

administrative judge that the agency honored the appellant’s right to compete. ID

at 4-5; Miller v. Federal Deposit Insurance Corporation , 818 F.3d 1357, 1360

(Fed. Cir. 2016); see also Harellson v. U.S. Postal Service, 113 M.S.P.R. 534,

¶ 11 (2010) (observing that the right to compete under section 3304(f)(1) does not

require that a veteran be considered at every stage of the selection process, up to

that process’s final stage).

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

Although a copy of an applicant’s DD-214 is appropriate to submit in applying for the

position, an agency Human Resources Specialist provided a sworn statement explaining

that an applicant who provides his DD-214 with his resume improperly provides the

hiring manager with PII, i.e., the applicant’s SSN and date of birth, which the hiring

manager is not allowed to see. IAF, Tab 13 at 19-21. Consequently, the DD-214 is

uploaded in a separate area that is not viewable by the hiring manager, and should not

be included with the resume. Id. at 20-21.

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.

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).

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. 420 (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 appeals 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