David Dean v. Department of Commerce

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID DEAN, DOCKET NUMBER

Appellant, AT-3330-19-0391-I-1

v.

DEPARTMENT OF COMMERCE, DATE: May 20, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Dean , Lugoff, South Carolina, pro se.

Sandra Soderstrom , Esquire, Washington, D.C., 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 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 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

The administrative judge docketed separate appeals under VEOA and the

Uniformed Services Employment and Reemployment Rights Act of 1994

regarding the appellant’s unsuccessful application for the position of Partnership

Specialist, GG-0301-11/12-Census-EXT-AFC, under vacancy announcement

number RCC2020ATL-2019-0270, which recruited for vacancies in Richland

County, South Carolina. Dean v. Department of Commerce, MSPB Docket No.

AT-3330-19-0391-I-1, Initial Appeal File (0391 IAF), Tabs 1 -3, 5; Dean v.

Department of Commerce, MSPB Docket No. AT-4324-19-0270-I-1, Initial

Appeal File (0270 IAF), Tabs 1-2, 12. In the present appeal, the administrative

judge issued a jurisdiction order setting forth the applicable burdens under VEOA

and ordered the parties to file evidence and argument establishing the Board’s

jurisdiction. 0391 IAF, Tab 3 at 2-7. The order also informed the parties that, if

the appellant met his jurisdictional burden, the administrative judge would hold a

hearing if the appellant has requested one and there was a genuine dispute of

material fact, or would allow for further development of the written record. Id.

at 7-8. The appellant and the agency filed jurisdictional responses. 0391 IAF,

Tabs 5-6.

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During the pendency of the appeal, the appellant withdrew his request for a

hearing. 0391 IAF, Tab 8 at 3. In an initial decision based on the written record,

the administrative judge found that the appellant had established Board

jurisdiction over his VEOA appeal but failed to establish that his veterans’

preference rights were violated. 0391 IAF, Tab 11, Initial Decision (0391 ID)

at 2, 4. In particular, the administrative judge determined that the agency’s

decision to open the vacancy only to residents of a certain county did not violate

his veterans’ preference rights. 0391 ID at 2-3. The administrative judge also

found that, because the agency was not seeking to hire a nonveteran who ranked

lower on the hiring certificate, 5 U.S.C. § 3318 “pass over” procedures did not

apply. 0391 ID at 3-4. The appellant has filed a petition for review, the agency

has filed a response, and the appellant has filed a reply thereto. Dean v.

Department of Commerce, MSPB Docket No. AT-3330-19-0391-I-1,

0391 Petition for Review (0391 PFR) File, Tabs 1, 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s arguments on review fail to establish any material error in

the initial decision. He primarily argues that the agency committed a prohibited

personnel practice 2 by limiting the geographic area of consideration because a

disabled veteran who did not reside in the specified county could not apply for

2

The administrative judge properly found that the appellant established jurisdiction

over this appeal pursuant to VEOA. 0391 ID at 2; see 5 U.S.C. § 3330a; Haasz v.

Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 6 (2008). The Board cannot

obtain jurisdiction over claims of prohibited personnel practices claims through VEOA.

See Goldberg v. Department of Homeland Security , 99 M.S.P.R. 660, ¶ 11 (2005); see

also Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867,

871-73 (D.C. Cir. 1982) (stating that, absent an otherwise appealable action, the Board

lacks jurisdiction over claims of prohibited personnel practices under 5 U.S.C.

§ 2302(b)). Therefore, to the extent that the administrative judge erred in failing to

address explicitly the appellant’s vague statement that the agency had “committed a

Prohibited Personnel Action,” the Board lacks jurisdiction to address such a claim.

0391 IAF, Tab 5 at 7; ID at 1-4; 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).

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the position. 0391 PFR File, Tab 1 at 4, Tab 4 at 3. He asserts generally that the

administrative judge improperly applied VEOA. 0391 PFR File, Tab 1 at 4.

Finally, in his reply, he asserts for the first time that “[c]ircumstantial evidence

suggests that illegal aliens, ex-convicts, and one Mexican citizen” were amongst

the nonveterans whom the agency improperly referred or hired for the Partnership

Specialist position. 0391 PFR File, Tab 4 at 3. The appellant did not submit into

the record this alleged “[c]ircumstantial evidence” or provide any further

information regarding this claim. 0391 PFR File, Tab 1 at 4, Tab 4 at 3.

Although the appellant withdrew his request for a hearing, the

administrative judge issued a decision without affording the parties the

opportunity to make final submissions regarding the merits of his VEOA claim

prior to the close of the record, in accordance with her jurisdiction order.

0391 IAF, Tab 3 at 7-8, Tab 8 at 3; see Jarrard v. Department of Justice,

113 M.S.P.R. 502, ¶ 11 (2010). Nonetheless, we find that remand is unnecessary

because the record of the dispositive issues is fully developed, there is no genuine

dispute of material fact, and the agency must prevail as a matter of law. See

Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶¶ 9-10 (2008)

(stating that 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).

When, as here, an agency accepts applications from outside its workforce,

5 U.S.C. 3304(f)(1) allows certain preference-eligibles or veterans to compete for

the vacant position. See generally Montgomery v. Department of Health &

Human Services, 123 M.S.P.R. 216, ¶¶ 4-5 (2016). The right to compete pursuant

to 5 U.S.C. § 3304(f)(1) does not preclude an agency from eliminating a veteran

or preference-eligible from further consideration for a position based on his

qualifications for the position, and nothing requires that the veteran or

preference-eligible be considered at every stage of the selection process.

Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 (2010); see also Lazaro

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v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (“[T]he

VEOA does not enable veterans to be considered for positions for which they are

not qualified.”); Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13

(2006) (same). It is undisputed that the appellant was not a current resident of

Richland County at the time of his application for the Partnership Specialist

position and that the vacancy announcement expressly stated that applicants must

be residents of the county in order to be considered for the “Work-at-Home”

position. 0391 IAF, Tab 5 at 4; 0270 IAF, Tab 1 at 4, Tab 10 at 23, 36-37. 3

Therefore, it is undisputed that the appellant did not meet the articulated

geographic area of consideration requirement.

The appellant’s repeated assertions that the geographic area of

consideration was “impermissible” are unpersuasive. 0391 PFR File, Tab 4 at 3;

0391 IAF, Tab 5 at 7. Pursuant to Office of Personnel Management regulation, an

area of consideration must be sufficiently broad to ensure the availability of high

quality candidates, taking into account the nature and level of the positions

covered. 5 C.F.R. § 335.103(b)(2). In Montee v. Department of the Army,

110 M.S.P.R. 271, ¶¶ 8-10 (2008), the Board found that a residency requirement

or geographic area of consideration related to the skills, experience, education or

other qualifications that would be required of an individual appointed to the

position in question would not violate VEOA. See also O’Brien v. Office of

Personnel Management, 118 F. App’x 484, 486 (Fed. Cir. 2004) 4 (finding that an

agency has the right to geographically limit a vacancy announcement “so long as

3

The agency’s response to the jurisdiction order in the present appeal incorporates by

reference the entirety of its narrative response and motion to dismiss in the 0270 appeal.

0391 IAF, Tab 6 at 7-8; 0270 IAF, Tab 10. The agency cites to the record in the

0270 appeal throughout this pleading, which it filed in both appeals. 0391 IAF, Tab 6

at 5-9; 0270 IAF, Tab 15 at 5-9. Therefore, we have considered the documentary

evidence submitted by the agency with its narrative response in the 0270 appeal as

incorporated by reference into the record of the present appeal.

4

Although O’Brien is an unpublished decision, the Board may rely on unpublished U.S.

Court of Appeals for the Federal Circuit decisions when, as here, it finds the court’s

reasoning persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).

6

the area of consideration is sufficiently broad to ensure the availability of high

quality candidates,” even when there are applicants under 5 U.S.C. § 3304(f)(1)).

As discussed in the initial decision, the agency put forth evidence and

argument concerning the importance of current community ties within the

relevant county to the performance of the position. 0391 ID at 2-3; 0270 IAF,

Tab 10 at 6-7, 39. Although the appellant argued that the agency’s decision to

restrict eligibility for the Partnership Specialist position to residents of Richland

County “benefited only those residing within the county lines,” 0391 IAF, Tab 5

at 8, he has not challenged the availability of high-quality candidates for the

position amongst the eligible population, 0391 IAF, Tabs 1, 5; 0391 PFR File,

Tabs 1, 4. As asserted by the appellant, the residency requirement precluded

preference eligibles “from applying [and qualifying] for the position unless they

were living within” the county. 0391 IAF, Tab 5 at 7. However, regardless of the

appellant’s vague statement on review describing nonveterans purportedly

referred or selected, 0391 PFR File, Tab 4 at 3, the record demonstrates that the

residency restriction did not have the overall effect of excluding veterans. The

delegating examining certificate demonstrated that all three selectees, and four of

the individuals referred, were preference-eligible disabled veterans. 0270 IAF,

Tab 10 at 19-22. 5

The undisputed record demonstrates that the agency’s decision not to refer

his application to the hiring authority for failing to meet the geographic area of

consideration, a qualification of the position, did not violate the appellant’s

veterans’ preference rights. 0391 IAF, Tab 5 at 7-8; 0270 IAF, Tab 10 at 22 -24;

5

We take official notice that the veterans’ preference code “CPS” on the certificate

means “10-point 30 Percent Compensable Disability Preference based on a

service-connected disability of 30% or more” as set forth in chapter 4, § B, page 4-18 of

the Office of Personnel Management’s Delegated Examining Operations Handbook: A

Guide for Federal Agency Examining Offices (2019), https://www.opm.gov/policy-data-

oversight/hiring-information/competitive-hiring/deo_handbook.pdf (last visited May 20,

2024). 5 C.F.R. § 1201.64 (providing that the Board may take official notice of matters

that can be verified); see Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶ 12 n.4

(2005).

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see Harellson, 113 M.S.P.R. 534, ¶ 11. The appellant has not challenged, and we

find no reason to disturb, the administrative judge’s finding that the 5 U.S.C.

§ 3318 “pass over” procedures do not apply to the circumstances alleged in this

appeal. 0391 ID at 3-4; 0270 IAF, Tab 10 at 19-21. Therefore, we find that the

agency is entitled to prevail as a matter of law, and we affirm the initial decision

denying the appellant’s request for corrective action under VEOA.

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

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

6

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

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

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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

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(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

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.

7

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.

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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.

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.