Tracy Edwards v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRACY LAVETTE EDWARDS, DOCKET NUMBER

Appellant, AT-3443-19-0726-I-1

v.

DEPARTMENT OF VETERANS DATE: May 31, 2024

AFFAIRS,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Tracy Lavette Edwards , Columbus, Georgia, pro se.

Kimberly Kaye Ward , Decatur, Georgia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

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

dismissed her nonselection appeal for lack of Board jurisdiction. For the reasons

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND the case to the Atlanta Regional Office for further

adjudication in accordance with this Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant identified herself below as an Advanced “MSA” at the

agency’s Veterans Health Administration. 2 Initial Appeal File (IAF), Tab 1 at 1.

She asserted that she is preference eligible. Id. She filed an appeal with the

Board challenging her nonpromotion to a Lead MSA position with the

Department of Veterans Affairs (VA). Id. at 5. She argued that she had more

experience and knowledge than all three of the individuals selected for the

position. Id. She further argued that two of the individuals were preselected for

the position and were given the interview questions beforehand. Id. In addition

to expressing her superior knowledge and experience, the appellant asserted that,

unlike herself, none of the individuals selected were veterans. Id. Finally, she

suggested that family members of other VA employees receive preferential

treatment in selection decisions. Id.

The administrative judge informed the appellant in an acknowledgment

order that the Board generally lacks jurisdiction over nonselections and

nonpromotions. IAF, Tab 2 at 2. The administrative judge additionally informed

the appellant of six exceptions to this general rule. Id. at 2-5. As relevant here,

she informed the appellant that the Board has jurisdiction over discrimination

based on uniformed service and violations of a candidate’s veterans’ preference

rights. Id. at 5. The agency subsequently argued that the appeal should be

dismissed because it was untimely, the appellant already elected her remedy by

filing a grievance with the union, and the Board lacks jurisdiction over her

nonpromotion. IAF, Tab 6 at 4-5.

The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction. IAF, Tab 8, Initial Decision (ID) at 1. She declined to

address the agency’s arguments that the appellant untimely filed the appeal and

that she had previously elected a different forum. ID at 1 n.1, 2 n.3. Rather, the

administrative judge found that the appellant failed to allege an exception to the

2

Neither party here explained the MSA acronym.

3

general rule that nonpromotions are not actions within the Board’s jurisdiction.

ID at 2.

The appellant filed a petition for review. Petition For Review (PFR) File,

Tab 4. In her petition she argues, among other things, that the agency disregarded

veterans’ preference in making its selections for the position at issue. Id. at 6.

The agency has responded to the appellant’s petition for review. PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s jurisdiction is limited to those matters over which it has been

given jurisdiction by law, rule, or regulation. Dale v. Department of Veterans

Affairs, 102 M.S.P.R. 646, ¶ 6 (2006). Generally, a nonselection is not an action

directly appealable to the Board. Id., ¶ 7. However, the Board might have

jurisdiction over a nonselection under either the Uniformed Services Employment

and Reemployment Rights Act of 1994 (USERRA) or the Veterans Employment

Opportunities Act of 1998 (VEOA). 5 U.S.C. § 3330a(a)(1)(A); 38 U.S.C.

§ 4311(a); Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 11 (2012);

Dale, 102 M.S.P.R. 646, ¶ 7. As relevant here, if an appellant raises a VEOA

claim, she must receive adequate notice regarding her rights and burdens under

VEOA before the Board can dismiss the appeal for lack of jurisdiction. Searcy v.

Department of Agriculture, 115 M.S.P.R. 260, ¶ 11 (2010).

A VEOA claim should be liberally construed and an allegation, in general

terms, that an appellant’s veterans’ preference rights were violated is sufficient to

meet the requirement of a nonfrivolous allegation establishing Board jurisdiction.

Id. The appellant here claimed that she had more experience and knowledge than

the three individuals selected for the position in question. IAF, Tab 1 at 5. She

further claimed that, unlike herself, none of the three persons selected for the

position were veterans. Id. Moreover, on review, the appellant explicitly alleges

that the agency violated veterans’ preference rights by not selecting her or other

veterans who applied for the position. PFR File, Tab 4 at 6; see Pirkkala v.

4

Department of Justice, 123 M.S.P.R. 288, ¶ 5 (2016) (explaining that jurisdiction

can be raised at any time, including on review). The appellant’s reference to

VEOA, claim of veterans’ preference, and allegation that the agency disregarded

her status as a veteran in making its selections is sufficient to require that this pro

se appellant receive notice of how to establish jurisdiction over her VEOA claim.

See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding a pro se appellant’s reference to

VEOA, claim of veterans’ preference, and allegation that the agency violated his

veterans’ preference rights was sufficient to require his receipt of jurisdictional

notice). The record shows, however, that the administrative judge did not inform

the appellant of the elements and her burden to establish VEOA jurisdiction over

her appeal. 3 See Burgess v. Merit Systems Protection Board, 758 F.2d 641,

643-44 (Fed. Cir. 1985) (finding an appellant must receive explicit information

on what is required to establish an appealable jurisdictional issue).

To establish Board jurisdiction over a veterans’ preference appeal brought

under VEOA, 4 an appellant must (1) show that she exhausted her remedy with the

Department of Labor (DOL); and (2) make nonfrivolous allegations that (i) she is

a preference eligible within the meaning of VEOA, (ii) the actions at issue took

place on or after October 30, 1998, and (iii) the agency violated her rights under a

statute or regulation relating to veterans’ preference. Searcy, 115 M.S.P.R. 260,

¶ 13. The record below is insufficiently developed for us to address these

requirements on review. Therefore, on remand, the administrative judge must

provide the appellant with appropriate jurisdictional notice regarding her VEOA

3

The acknowledgment order states that an appellant may establish jurisdiction by

nonfrivolously alleging that she was not selected in violation “of the candidate’s

veterans’ preference rights.” IAF, Tab 2 at 4-5. However, this notice is insufficient

because it does not state the elements necessary to establish VEOA jurisdiction over her

appeal. See Searcy, 115 M.S.P.R. 260, ¶¶ 12-13 (finding jurisdictional notice

insufficient when an administrative judge did not inform the appellant of the elements

and his burden to establish VEOA jurisdiction over his appeal).

4

As a current Federal employee, the appellant is not entitled to corrective action for an

alleged denial of the right to compete under VEOA. Oram v. Department of the Navy,

2022 MSPB 30, ¶ 17.

5

claim and the opportunity to submit evidence and argument to establish the

Board’s jurisdiction under VEOA. We observe, without making a finding, that

the appellant denied in her initial appeal that she filed a complaint with DOL.

IAF, Tab 1 at 4.

Further, this pro se appellant, in referencing that none of the three

individuals selected were veterans while she and several other candidates were

veterans, may be attempting to raise a USERRA claim rather than a VEOA claim.

See Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶¶ 9-10 (2009) (remanding

for further adjudication concerning a potential USERRA claim, even though the

appellant never explicitly raised such a claim and only completed sections of the

initial appeal form pertaining to VEOA). The assertion that an employer took or

failed to take certain actions based on an individual’s military status or

obligations constitutes a nonfrivolous allegation entitling the appellant to Board

consideration of his claim. Hammond v. Department of Veterans Affairs,

98 M.S.P.R. 359, ¶ 8 (2005). USERRA does not impose a time limit for filing an

appeal with the Board, and an appellant can file a USERRA complaint directly to

the Board without filing a complaint with DOL. Nahoney v. U.S. Postal Service,

112 M.S.P.R. 93, ¶ 19 (2009); Becker v. Department of Veterans Affairs,

107 M.S.P.R. 327, ¶ 12 (2007). Accordingly, on remand, the administrative judge

should also provide the appellant with adequate notice of what is required to

establish Board jurisdiction under USERRA. 5 Id.

5

The acknowledgment order here states that an appellant may establish jurisdiction by

alleging that her nonselection was “the product of discrimination based on uniformed

service.” IAF, Tab 2 at 4-5. However, as with VEOA, the acknowledgment order does

not set forth the elements of proof. To establish Board jurisdiction over a USERRA

claim arising under 38 U.S.C. § 4311(a), an appellant must make nonfrivolous

allegations that (1) she performed duty or has an obligation to perform duty in a

uniformed service of the United States; (2) the agency denied her initial employment,

reemployment, retention, promotion, or any benefit of employment; and (3) the denial

was due to the performance of duty or obligation to perform duty in the uniformed

service. Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 11 (2016), aff’d

sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320, 1325-26 (Fed. Cir.

2017).

6

Should the appellant sufficiently establish Board jurisdiction, the

administrative judge should also address the issues regarding timeliness and the

election of remedies, as appropriate. See Rivera v. Department of the Air Force,

110 M.S.P.R. 564, ¶ 12 (2009) (explaining that an appellant may bring a

USERRA appeal even if he is otherwise covered by a collective bargaining

agreement).

To the extent the appellant is alleging that her nonpromotion was the

product of a prohibited personnel practice not in connection with VEOA or

USERRA, we observe that prohibited personnel practices under 5 U.S.C.

§ 2302(b) are not independent sources of Board jurisdiction. Pridgen v. Office of

Management and Budget, 117 M.S.P.R. 665, ¶ 7 (2012). Further, the Board

cannot obtain jurisdiction over prohibited personnel practice claims through

USERRA or VEOA. Goldberg v. Department of Homeland Security, 99 M.S.P.R.

660, ¶ 11 (2005).

7

ORDER

For the reasons discussed above, we REMAND this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.