DeGerald R. Wilson v. Department of the Army ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEGERALD R. WILSON, DOCKET NUMBER
Appellant, DA-3330-13-0169-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
DeGerald R. Wilson, San Antonio, Texas, pro se.
John Vrett, North Chicago, Illinois, for the agency.
David Starratt, Esquire, Fort Sam Houston, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his appeal of his nonselections for five agency job vacancies. Generally,
we grant petitions such as this one only when: the initial decision contains
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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. See 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, and based on the following
points and authorities, 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).
¶2 In October 2012, the agency’s Installation Management Command
(IMCOM) posted four job vacancies for the positions of Administrative Assistant,
Initial Appeal File (IAF), Tab 10 at 127-30, Contract Specialist Trainee, id.
at 86-90, Contract Specialist, id. at 45-48, and Supervisory Contract Specialist,
id. at 22-25. Also in October 2012, the agency’s Military Entrance Processing
Command (MEPCOM) posted one job vacancy for the position of Test
Administrator. IAF, Tab 11 at 12-20. The appellant applied for each of the five
positions. See IAF, Tab 10 at 26, 49, 91, 131, Tab 11 at 25. However, he was not
selected for any.
¶3 The appellant appealed his nonselections to the Board. IAF, Tab 1. The
agency responded to the appeal, arguing that the appellant did not meet the
minimum qualifications for the four IMCOM vacancies. IAF, Tab 10 at 5-7, 9.
Additionally, the agency argued that, while the appellant was qualified for the
MEPCOM position, he was not selected because he was not among the “best
qualified.” IAF, Tab 11 at 6, 33-34.
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¶4 The administrative judge concluded that the appellant established
jurisdiction over his appeal. IAF, Tab 15 at 1. She summarized the issues as
being whether the agency violated the Veterans Employment Opportunities Act of
1998 (VEOA) or the Uniformed Services Employment and Reemployment Rights
Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) (USERRA) by not selecting the
appellant for any of the five vacancies. IAF, Tab 30 at 1-2.
¶5 After a hearing on the merits, the administrative judge denied the
appellant’s request for corrective action. IAF, Tab 32, Initial Decision (ID). The
agency had argued that the appellant lacked the minimum qualifications for any
of the four IMCOM vacancies. IAF, Tab 10 at 5-7 (alleging that the appellant’s
applications indicated that he lacked the requisite experience related to
acquisition planning, managing contracts, and preparing travel orders), 27, 82,
119, 132 (minimum qualifications for each of the four IMCOM positions). The
appellant acknowledged that he did not meet the minimum qualifications, but
argued that he had two degrees and could have been trained to do the work. See
ID at 5-6. Nevertheless, the administrative judge found his failure to meet the
minimum qualifications of the positions controlling. ID at 4-6. She noted that
nothing in VEOA exempts covered veterans from meeting minimum qualification
standards of vacant positions. ID at 6 (citing Philips v. Department of the
Navy, 110 M.S.P.R. 184, 190 n.3 (2008) and Ramsey v. Office of Personnel
Management, 87 M.S.P.R. 98, ¶ 9 (2000)). As for the MEPCOM position, the
administrative judge found that the appellant was afforded the appropriate
veterans’ preference, but his application was not referred to the selecting official
because, while he was among the “Highly Qualified” applicants, he was not
among the “Best Qualified.” ID at 7-8. She noted that the agency’s selection
process was consistent with the category rating system of filling
competitive-service vacancies. ID at 8 (citing 5 U.S.C. § 3319); see also Launer
v. Department of the Air Force, 119 M.S.P.R. 252, ¶ 7 (2013) (discussing the
appropriate use of category ratings). Accordingly, the administrative judge
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concluded that the appellant failed to establish that the agency violated VEOA by
not selecting him for any of the five vacancies. ID at 3-8.
¶6 The administrative judge next found that the appellant did not present any
evidence that his military service was a factor in his nonselection for the IMCOM
or MEPCOM vacancies. ID at 9-10; see also Burroughs v. Department of the
Army, 120 M.S.P.R. 392, ¶ 5 (2013) (to prevail on the merits of a USERRA claim
under 38 U.S.C. § 4311(a), an appellant must prove by preponderant evidence
that his uniformed service was a substantial or motivating factor in the agency
action). Therefore, she concluded that the appellant failed to establish that his
nonselection for any of the five vacancies was the result of discrimination based
on his status as a military veteran in violation of USERRA. ID at 10.
¶7 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶8 Although the appellant has filed a petition for review, it contains no
argument or evidence. PFR File, Tab 1. Instead, it simply states, “This is a
request for the Petition for Review,” and “[n]o additional information is available
at this time.” Id. at 2. It may be assumed that the act of filing a petition reflects
the appellant’s disagreement with the initial decision. However, mere
disagreement with the administrative judge’s findings of fact and conclusions of
law does not warrant full review of this matter by the Board. Weaver v.
Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980); see also Jones v.
Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 20-21 (finding an
argument unavailing where it constituted mere disagreement with an
administrative judge’s determination that the agency had not violated a law or
regulation relating to veterans’ preference), aff’d, 544 F. App’x 976 (Fed. Cir.
2013); McKay v. U.S. Postal Service, 84 M.S.P.R. 152, ¶ 8 n.* (1999) (dismissing
an argument on review regarding USERRA as mere disagreement with the
administrative judge’s determination).
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¶9 The administrative judge’s decision appears well-reasoned, consistent with
the appropriate law, and supported by the evidence of record. Without any
argument or evidence to the contrary, the appellant has failed to present a basis
for granting his petition. See 5 C.F.R. § 1201.115.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
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If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.