Opinion

Benjamin Huebschman v. Department of the Army

Court: Merit Systems Protection Board
Filed: Mar 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BENJAMIN HUEBSCHMAN, DOCKET NUMBER

Appellant, DC-3330-19-0552-I-1

DEPARTMENT OF THE ARMY, DATE: March 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Benjamin Huebschman , Beltsville, Maryland, pro se.

Steven Whittington , Esquire, Warren, Michigan, 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). For the reasons discussed below, we

GRANT the appellant’s petition for review, REVERSE the initial decision, and

GRANT the appellant’s request for corrective action.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant was honorably discharged from the U.S. Army after

approximately 7 years of active duty service. Initial Appeal File (IAF), Tab 4

at 6-8. On March 13, 2019, the agency posted a vacancy announcement for the

position of NH-4 Project Manager. IAF, Tab 6 at 9-16. The vacancy

announcement indicated that it was open to “Current Department of Army

Civilian Employees,” “Current Permanent Department of Defense (DOD) Civilian

Employee (non-Army),” “Interagency Career Transition Assistance Plan,” and

“Priority Placement Program (PPP), Program S (Military Spouse) registrant.” Id.

at 11. The appellant applied for the position, but on or about April 19, 2019, his

application was automatically rejected because he did not select an “area of

consideration,” i.e., one of the four categories listed above. IAF, Tab 1 at 5,

Tab 4 at 5, Tab 6 at 5. It appears that the appellant did not select an area of

consideration because he did not fall within any of these four categories. IAF,

Tab 5 at 5.

On April 30, 2019, the appellant filed a complaint with the Department of

Labor (DOL), arguing that, as an honorably discharged veteran, he was qualified

to apply for the position, and the agency should have considered his application.

IAF, Tab 1 at 7. On May 15, 2019, DOL closed its file and informed the

appellant of his right to file a Board appeal. Id. at 9.

The appellant timely filed a Board appeal and requested a hearing. IAF,

Tab 1. The administrative judge issued a jurisdictional order, informing the

appellant of the standards for establishing jurisdiction over a VEOA appeal and

ordering the parties to file evidence and argument on the issue. IAF, Tab 3. The

appellant responded, arguing that the agency violated his right to compete for the

Project Manager position under 5 U.S.C. § 3304(f)(1). IAF, Tab 4. The agency

also responded, arguing that it had “erroneously included the Interagency Career

Transition Assistance Plan (ICTAP) to the applicable Areas of Consideration”

and did not actually consider any ICTAP candidates. IAF, Tab 6 at 5-7.

Therefore, the agency argued, it did not actually consider any candidates

from outside its own workforce, and so the right to compete provisions of

5 U.S.C. § 3304(f)(1) did not apply. Id. at 6-7.

After considering the parties’ submissions, the administrative judge issued

an initial decision denying corrective action on the merits without a hearing.

IAF, Tab 7. She found that, although the appellant established jurisdiction over

his appeal, there was no dispute of material fact and the agency was entitled to

judgment as a matter of law. IAF, Tab 7, Initial Decision (ID) at 1-6.

Specifically, the administrative judge found that the inclusion of ICTAP

candidates in the vacancy announcement was a clerical error, the agency did not

actually accept applications from candidates outside its own workforce, and

therefore, the appellant did not have a right to compete for the position in

question under 5 U.S.C. § 3304(f)(1). ID at 1-6.

The appellant has filed a petition for review, arguing that the administrative

judge erred in denying his hearing request and in accepting the agency’s

unsupported allegations as true. Petition for Review (PFR) File, Tab 1 at 3-4,

6-7, 9-10. He disputes the veracity of the agency’s claim that its inclusion of

ICTAP candidates was a clerical error and argues that other areas of consideration

were outside the agency’s own workforce because they included military spouses

and non-Army DOD employees. Id. at 4, 6-8. The appellant also urges the Board

to reconsider its ruling in Vassallo v. Department of Defense, 122 M.S.P.R. 156,

aff’d, 797 F.3d 1327 (Fed. Cir. 2015). PFR File, Tab 1 at 10-15. The agency has

filed a response in opposition. PFR File, Tab 3.

ANALYSIS

To establish Board jurisdiction over a “right to compete” VEOA claim

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 actions at issue took

place on or after December 10, 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

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). The administrative judge in this

case found that the appellant satisfied all of these jurisdictional requirements, and

for the reasons explained in the initial decision, we agree. ID at 3-4.

To prevail on the merits of a right to compete claim, the appellant must

prove jurisdictional elements (2)(i), (ii), and (iii) by a preponderance of the

evidence. Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 19

(2010). In this case, there does not seem to be any dispute about the appellant’s

veteran status or the date of the action at issue. IAF, Tab 4 at 3, Tab 6 at 5-6.

Therefore, this appeal turns on whether the appellant can prove that the agency

denied him the opportunity to compete in a selection process in which the agency

was accepting applications from individuals outside its own workforce. The

administrative judge found that there was no dispute of material fact on this issue

in light of the agency’s assertion that the inclusion of ICTAP candidates was a

clerical error, and for that reason, she denied the appellant’s request for

corrective action without a hearing. ID at 1, 4-6. For the following reasons, we

disagree.

The Board may decide the merits of a VEOA appeal without a hearing

when there is no genuine dispute of material fact and one party must prevail as a

matter of law. Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5

(2009); see 5 C.F.R. § 1208.23(b) (stating that an administrative judge may

provide a hearing if the Board’s jurisdiction has been established over a timely

VEOA appeal). We agree with the administrative judge that these circumstances

are present in this case, but we find that it is the appellant who must prevail. As

explained above, the vacancy announcement was open to military spouses

registered under the agency’s Priority Placement Program, Program S. 2 IAF,

Tab 6 at 11. Registration in Program S is open to “spouses of active duty military

members of the U.S. Armed forces.” Department of Defense Priority Placement

Program (PPP) Handbook, § 14(C)(1) (July 2011). Some restrictions apply, but

there is no requirement that a Program S registrant must be a current Federal

employee, much less an employee of the agency. Id., § 14(C). We find that, in

soliciting applications from Program S registrants, the agency was accepting

applications from individuals outside its own workforce. Therefore, the appellant

had a right to compete for the position in question under 5 U.S.C. § 3304(f)(1),

and we find that the agency violated that right when it rejected his application.

Having thus found that the agency violated the appellant’s right to

compete, we decline his invitation to overrule Vassallo for the following reasons.

First, the Board’s ruling in Vassallo is not controlling as to the outcome of the

appeal, and the appellant could obtain no further relief in this case if the Board

were to revisit Vassallo at this time. See Thompson v. Department of the Army,

122 M.S.P.R. 372, ¶ 30 n.12 (2015) (declining to reach issues that would not

change the outcome of the appeal). Second, even if the Board were inclined to

overrule Vassallo, the United States Court of Appeals for the Federal Circuit has

affirmed the Board’s Opinion and Order in that case in a precedential decision,

both as to its reasoning and its result. PFR File, Tab 3 at 6; see Vassallo,

797 F.3d 1327. Precedential decisions of the Federal Circuit are controlling

authority for the Board, and the Board is bound to follow them unless they are

overruled by the court sitting en banc. Conner v. Office of Personnel

Management, 120 M.S.P.R. 670, ¶ 6 (2014), aff’d per curiam, 620 F. App’x 892

(Fed. Cir. 2015).

Because this appeal has been resolved on the grounds identified above, we

also decline to reach the following issues: (1) Whether the agency’s inclusion of

Unlike ICTAP, the agency has not alleged that the inclusion of registrants under

Program S was the result of any sort of clerical error.

ICTAP was, in fact, an error, a matter which the appellant disputes on review,

PFR File, Tab 1 at 6-8, 14; (2) whether the agency’s alleged clerical error would

have been material in any event, see Gingery v. Department of Veterans Affairs,

114 M.S.P.R. 175, ¶¶ 9-10 (2010) (explaining that when an agency solicited

external and internal candidates, it violated the appellant’s right to compete by

considering only internal candidates), overruled on other grounds by Oram v.

Department of the Navy, 2022 MSPB 30; Boctor v. U.S. Postal Service,

110 M.S.P.R. 580, ¶ 9 (2009) (same); and (3) whether the agency’s solicitation of

applications from current employees throughout DOD constituted acceptance of

applications of individuals from outside its own workforce, see Washburn v.

Department of the Air Force, 119 M.S.P.R. 265, ¶¶ 6-11 (2013) (concluding that

the Department of the Air Force and not DOD was the “agency” for purposes of

5 U.S.C. § 3304(f)(1)).

ORDER

We ORDER the agency to reconstruct the hiring process for the Project

Manager position at issue, and to consider the appellant’s application in that

process. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir.

1984). The agency must complete this action no later than 30 days after the date

of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the code of Federal Regulation, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

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 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

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.

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. 4 The court of appeals must receive your petition for

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.

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