Opinion

Pierson Goodman v. Department of Defense

Court: Merit Systems Protection Board
Filed: May 1, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PIERSON B. GOODMAN, DOCKET NUMBER

Appellant, DC-3330-21-0318-M-1

DEPARTMENT OF DEFENSE, DATE: May 1, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Debra D’Agostino , Esquire, Washington, D.C., for the appellant.

Sara K. Achinger , Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the remand initial decision,

which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA)

appeal as moot. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. However, for the reasons set forth

below, we VACATE the remand initial decision and DENY the appellant’s

request for corrective action.

BACKGROUND

On March 25, 2021, the appellant filed an appeal with the Board alleging

that the agency violated his veterans’ preference rights pursuant to VEOA when it

denied him the opportunity to compete for a vacancy open between November 19

and December 7, 2020, for which he had applied 2 despite his entitlement to

consideration based on his status as a preference eligible veteran. Goodman v.

Department of Defense, MSPB Docket No. DC-3330-21-0318-I-1, Initial Appeal

File (IAF), Tab 1 at 6, 9-10. Specifically, he asserted that the Department of

Defense improperly found him ineligible for the position because it erroneously

concluded that he failed to provide the requested documentation confirming his

veterans’ preference status. Id. at 6. He also indicated in his initial appeal that

he exhausted these claims with the Department of Labor (DOL), and he included

with his appeal a closing letter wherein DOL determined that he failed to show

that his veterans’ preference rights were violated. Id. at 6, 9-13, 34-35.

The vacancy announcement for which the appellant applied was OS-DTRA-21-

10969099-MP, a United Kingdom Combatant Command Representative position at the

GS-0301-14 and GS-0301-15 levels. IAF, Tab 4 at 8, Tab 6 at 21-29.

While the appellant’s initial appeal was pending with the administrative

judge, the agency voluntarily rescinded its job offer to the selectee and requested

that the entire vacancy announcement and selection process be reconstructed.

IAF, Tab 6 at 32. After reconvening the original hiring panel to rate all the

applicants on the new certificate of eligible applicants, which included the

appellant, the agency did not select the appellant for the position. Id. at 36. In a

pleading before the Board, the agency asserted that these actions divested the

Board of its jurisdiction over the appeal. Id. at 9.

Without providing the appellant with an opportunity to respond, the

administrative judge issued an initial decision finding that, because the agency

reconstructed the selection process and included the appellant on the certificate of

eligible applicants, it afforded him the appropriate remedy for a violation of his

veterans’ preference rights—the right to compete for the position. IAF, Tab 7,

Initial Decision (ID) at 5-7. Accordingly, she dismissed the appeal for lack of

jurisdiction. ID at 7. Thereafter, the appellant appealed the initial decision to the

U.S. Court of Appeals for the Federal Circuit. In an unopposed motion, the

Board requested that the Federal Circuit remand the matter so that the appellant

could respond to the agency’s argument and evidence regarding the reconstructed

selection process. Goodman v. Department of Defense, MSPB Docket No. DC-

3330-21-0318-L-1, Litigation File (LF), Tab 8. The court granted the motion and

remanded the appeal to the Board to allow the appellant to address the evidence

concerning the reconstructed selection process. LF, Tab 9.

Following remand to the Board, the administrative judge provided the

parties with an opportunity to address the reconstructed selection process and,

without holding a hearing, issued a remand initial decision on June 22, 2022,

dismissing the appeal as moot. 3 Goodman v. Department of Defense, MSPB

Docket No. DC-3330-21-0318-M-1, Remand File (RF), Tab 14, Remand Initial

The administrative judge who issued the remand initial decision was not the same

administrative judge who had previously handled the appeal. RF, Tab 9.

Decision (RID). In the remand initial decision, the administrative judge found

that the appellant’s arguments regarding the insufficiency of the reconstructed

selection process were without merit, and specifically, that the agency’s failure to

conduct new interviews “did not violate the appellant’s right to compete.” RID

at 4-5. Thus, she concluded that the appellant could not show that the agency

failed to correct its prior VEOA violation because the agency had considered the

appellant for the position at issue in its reconstructed selection process. 4 RID

at 6. Finally, she found that the appellant failed to prove that he was entitled to

an award of monetary or liquidated damages because he did not prove that he was

entitled to the position. RID at 3-4, 6.

The appellant has filed a petition for review of the remand initial decision,

arguing, among other things, that the reconstruction process was insufficient, and

that the agency’s failure to conduct interviews was not in line with the Board’s

decision in Schultz v. Department of Veterans Affairs, 2022 MSPB 23. Petition

for Review (PFR) File, Tab 3 at 13-16. In response, the agency argues that, in

accordance with Oram v. Department of the Navy, 2022 MSPB 30, the appellant

was not entitled to corrective action under 5 U.S.C. § 3304(f) as a matter of law

because he was a civilian Federal employee in the competitive service at the time

he applied for the vacancy. PFR File, Tab 5 at 4-5. The appellant did not reply

to the agency’s response.

Although the administrative judge refers to the agency’s “previous VEOA violation”

in her remand initial decision, RID at 6, neither DOL, nor the Board, nor the Federal

Circuit issued a finding that the agency violated the appellant’s veterans’ preference

rights. IAF, Tab 1 at 34-35, Tab 7; LF, Tab 9. However, because the agency rescinded

its offer and reconstructed the selection process, it appears that the administrative judge

assumed that there had been a VEOA violation. Because this assumption does not

impact the outcome of this matter, we do not address it. See Panter v. Department of

the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is

not prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision).

DISCUSSION OF ARGUMENTS ON REVIEW

Section 3304(f)(1) of Title 5 of the U.S. Code expressly provides

preference eligibles with a right to compete for vacant positions when the agency

issuing the vacancy announcement indicates that it will accept applications from

outside its own workforce. Harellson v. U.S. Postal Service, 113 M.S.P.R. 534,

¶ 8 (2010). However, in Oram, 2022 MSPB 30, ¶ 17, the Board found that, as a

matter of law, individuals who are already Federal employees are not entitled to

corrective action based on a claim of denial of an opportunity to compete under

5 U.S.C. § 3304(f).

In reaching that result, the Board relied on the decision of the Federal

Circuit in Kerner v. Department of the Interior, 778 F.3d 1336, 1338-39 (Fed.

Cir. 2015). There, the court found that, because the appellant was already

employed in the Federal civil service, 5 U.S.C. § 3304(f)(1) was inapplicable in

his case. After reviewing the text and legislative history of VEOA and its

precursor, the Veterans’ Preference Act, the Federal Circuit concluded that

nothing in the statutory language, the legislative history, or case law supports a

presumption that the “opportunity to compete” provisions in section 3304 apply

in instances in which an applicant already was employed by the Federal civil

service, but rather that the intent of those provisions was to assist veterans in

obtaining an initial appointment to the Federal service—not subsequent

promotions or other intra-agency movement. Kerner, 778 F.3d at 1338. The

court further reasoned that, because veterans currently employed in a

competitive-service position are already “eligible to apply” to merit promotion

vacancies, such applicants could not have been the intended beneficiaries of

section 3304(f). Id.

Here, it appears that the appellant was a Federal employee at the time that

he applied for the position at issue. First, according to the appellant’s Certificate

of Release or Discharge From Active Duty, he was discharged on February 1,

2015. IAF, Tab 1 at 21. Then, as part of the appellant’s February 8, 2021 DOL

complaint, he attached a Standard Form 50 “reflecting his current position” as a

Supervisory Intelligence Specialist with the Department of the Army, with a pay

grade of GG-14. Id. at 9-10, 23. Furthermore, the appellant, who is represented

by counsel, did not respond to the agency’s assertions that he was already a

Federal employee in the competitive service at the time he applied, PFR File,

Tab 5, even though the Board’s regulations allowed him an opportunity to reply, 5

5 C.F.R. § 1201.114(a)(4).

Accordingly, we conclude that, at the time the appellant applied for the

position at issue in this appeal, he was a Federal employee in the civil service.

Therefore, he cannot prevail as a matter of law on his argument that he was

denied the opportunity to compete under 5 U.S.C. § 3304(f). See Oram,

2022 MSPB 30, ¶ 17. For this reason, we need not address the appellant’s

arguments below and on review regarding the sufficiency of the reconstructed

selection process. Furthermore, we vacate the remand initial decision dismissing

this appeal as moot, and deny the appellant’s request for corrective action,

finding that he cannot prevail as a matter of law.

NOTICE OF APPEAL RIGHTS 6

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

The appellant was notified of his right to reply to the agency’s response to his petition

for review in the acknowledgment letter issued by the Office of the Clerk of the Board.

PFR File, Tab 4 at 1.

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.

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. 7 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