John Doyle v. Department of the Navy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN JOSEPH DOYLE, DOCKET NUMBER
Appellant, DC-3330-14-0919-I-2
v.
DEPARTMENT OF THE NAVY, DATE: February 1, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Joseph Doyle, Quincy, Massachusetts, pro se.
Emilia Muche Thompson, Esquire, Newport, Rhode Island, for the agency.
Melanie A. Andrews, Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in connection with his
Veterans Employment Opportunities Act (VEOA) appeal. Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 revie w and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant is a 10-point preference eligible who was, at all times
relevant to this appeal, employed by the agency as a GS-14 Human Resources
Specialist (Labor Employee Relations) in Washington, D.C. He applied under an
agency announcement advertised on USAJOBS for the position of
Administrative/Technical Specialist, NT-05, in Newport, Rhode Island. Doyle v.
Department of the Navy, MSPB Docket No. DC-3330-14-0919-I-2, Appeal File
(I-2 AF), Tab 3 at 22-25. The announcement, open March 19-21, 2014, stated
that the position was subject to the Department of Defense Priority Placement
Program and that eligibility was limited to “ICTAP eligibles.” Id. at 22. ICTAP,
or the Interagency Career Transition Assistance Program, “provides eligible
displaced Federal employees with interagency selection priority for vacancies in
agencies that are filling positions from outside their respective permanent
competitive service workforces.” 5 C.F.R. § 330.701. The agency rated the
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appellant ineligible for the position on the basis that he was “not within the Area
of Consideration as specified in the vacancy announcement”; that is, he was not
eligible for priority placement under ICTAP. Doyle v. Department of the Navy,
MSPB Docket No. DC-3330-14-0919-I-1, Initial Appeal File (IAF), Tab 10 at 9.
After determining that no ICTAP-eligible employees had applied, the agency
transferred a Department of the Interior employee, also a 10-point preference
eligible, who previously had held the position at issue. I-2 AF, Tab 3 at 3-6, 26;
Tab 4 at 4-5. Under these circumstances, the agency had the discretion to, and
did, transfer the employee to the position without competition. 5 C.F.R.
§ 335.103(c)(3)(v); I-2 AF, Tab 3 at 26.
¶3 The appellant filed a complaint with the Department of Labor (DOL)
alleging that the agency had violated his right to compete under VEOA. IAF,
Tab 1 at 10-12. Although determining that it “had merit,” DOL advised the
appellant that it was unable to resolve the complaint, id. at 14, prompting him to
file the instant Board appeal and to request a hearing, id. at 2. The administrative
judge determined that the appellant had established the Board ’s jurisdiction over
the appeal, IAF, Tab 13 at 3-5, and the appellant subsequently withdrew his
request for a hearing, 2 IAF, Tab 18 at 2. The administrative judge set a date for
the close of the record, I-2 AF, Tab 2, and both parties submitted additional
evidence and argument, I-2 AF, Tabs 3-6.
¶4 In an initial decision based on the written record, the administrative judge
found that, in posting an announcement open to ICTAP eligibles, the agency
signaled that it would accept applications from individuals outside its own
workforce and that it was therefore required to accept applications from
2
The appeal was thereafter dismissed without prejudice to allow the parties additional
time to file evidence and argument. IAF, Tab 19, Initial Decision. The appeal was then
automatically refiled, I-2 AF, Tab 2, and adjudication continued.
4
preference eligibles or qualifying veterans under 5 U.S.C. § 3304(f)(1) 3 and
evaluate those applications under merit promotion procedures. I-2 AF, Tab 7,
Initial Decision (ID) at 3-11. The administrative judge further found, based on
Board precedent, that the agency’s decision to invoke its transfer authority does
not negate the right of a preference eligible or covered veteran to compete under
section 3304(f)(1). Montgomery v. Department of Health & Human Services,
123 M.S.P.R. 216, ¶ 7 (2016); ID at 10-11. Accordingly, the administrative judge
granted the appellant’s request for corrective action, ID at 1, 11, acknowledging
that, while the appellant may not ultimately be deemed the best qualified for the
vacancy at issue, he must be afforded fair consideration, ID at 11.
¶5 The agency has filed a petition for review. Doyle v. Department of the
Navy, MSPB Docket No. DC-3330-14-0919-I-2, Petition for Review (PFR) File,
Tab 3. The appellant has responded, PFR File, Tab 6, and the agency has replied
to that response, PFR File, Tab 8.
ANALYSIS
¶6 On review, the agency argues that the initial decision is inconsistent with
the September 12, 1995 Presidential Memorandum on Career Transition
Assistance for Federal Employees. PFR File, Tab 3 at 8-15. Among other things,
the agency argues that the Memorandum provided that it did not “create any right
or benefit, substantive or procedural, enforceable by a party against the United
States,” or its agencies. Id. at 9; Memorandum on Career Transition Assistance
for Federal Employees, 1995 Pub. Papers 1354 (Sept. 12, 1995). The agency also
notes that the Memorandum has the same force and effect as an executive order
and has not been revoked or modified by any subsequent president or by
3
Pursuant to 5 U.S.C. § 3304(f)(1),“[p]reference eligibles or veterans who have been
separated from the armed forces under honorable conditions after 3 years or more of
active service may not be denied the opportunity to compete for vacant positions for
which the agency making the announcement will accept applications from individuals
outside its workforce under merit promotion procedures. ”
5
Congress, and therefore it cannot be overridden by VEOA. PFR File, Tab 3
at 10-15. The Memorandum directed the Office of Personnel Management (OPM)
to promulgate implementing regulations.
¶7 Although this case was thoroughly briefed by the parties below, the agency
only once referred to the Presidential Memorandum, I-2 AF, Tab 6 at 5, and did
not submit it or argue, as it attempts to now, the intent of the Memorandum, or its
legal force and effect and relative standing vis-à-vis veterans’ preference rights
and the VEOA statute. Nor did the agency address any of its specific language.
It is well settled that the Board ordinarily will not consider an argument raised for
the first time on petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 19 n.12 (2016); Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In the instant case, the
agency has offered no explanation for its failure to raise the 1995 Presidential
Memorandum. In any event, the appellant is not attempting to assert his rights
under ICTAP; he is asserting his rights under VEOA and the Veterans’ Benefits
Improvement Act of 2004.
¶8 The agency also argues that, in finding that the right to compete under
VEOA applies in this situation, the administrative judge improperly deferred to
OPM’s interpretation of 5 U.S.C. § 3304(f)(1) as set forth in 5 C.F.R. § 335.106.
PFR File, Tab 3 at 15-18. The agency contends that the interpretation “creates an
unreasonable accommodation of the two governmental interests [those of
displaced agency employees and those of preference eligibles and certain
veterans] that cannot be enforced.” Id. at 17.
¶9 As noted, 5 U.S.C. § 3304(f)(1) provides that preference eligibles and
certain veterans “may not be denied the opportunity to compete for vacant
positions for which the agency making the announcement will accept applications
from individuals outside its own workforce under merit promotion procedures .”
However, 5 C.F.R. § 335.106 provides that such individuals “may compete for
6
vacancies under merit promotion when an agency accepts applications from
individuals outside its own workforce.” As the administrative judge found, the
Board considered this difference in language in Brandt v. Department of the Air
Force, 103 M.S.P.R. 671, ¶¶ 10-13 (2006); ID at 7-8. There, the Board found that
it was appropriate to defer to OPM’s interpretation of the statute, which was
neither unreasonable nor illogical, and concluded, therefore, that the phrase
“under merit promotion procedures” in section 3304(f)(1) should be regarded as
modifying the verb “to compete” such that veterans must be permitted to compete
for a position under merit promotion procedures when, as here, the agency is
accepting applications from outside candidates. Brandt, 103 M.S.P.R. 671,
¶¶ 12-13; ID at 7-8. Although the agency disagrees with the Board’s
interpretation, suggesting other regulations to which the Board has not deferred,
PFR File, Tab 3 at 18-20, the Brandt decision addresses the regulation at issue
here in a precedential decision. As valid Board precedent, the administrative
judge properly relied on the decision in Brandt, and the agency has not set forth a
basis to disturb that decision. 5 C.F.R. § 1201.117(c)(1).
¶10 The agency also argues that the administrative judge improperly consider ed
language from OPM’s VetGuide, which specifically states that agencies are
required to allow VEOA eligibles to apply for vacancies open to ICTAP
candidates only. PFR File, Tab 3 at 15, 19-21. In considering the weight to be
afforded that issuance, the administrative judge found, b ased on Board precedent,
that, although the VetGuide is not entitled to the deference accorded to
regulations, positions expressed in it may be entitled to some weight, depending
in part on factors such as the consistency of OPM’s position, its formality, and its
persuasiveness. ID at 8-9; Durand v. Environmental Protection Agency,
106 M.S.P.R. 533, ¶ 14 (2007); Brandt, 103 M.S.P.R. 671, ¶ 14. Applying these
factors, the administrative judge found no instance in which OPM has taken a
contrary position regarding the rights of preference eligibles or certain veterans to
compete for a vacancy open to ICTAP eligibles only; that the VetGuide “consists
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of a formal document, prepared for publication—and in fact published—on the
internet, with the apparent expectation that it would be relied on by agencies,
employees, prospective employees, and other interested members of the public,”
Brandt, 103 M.S.P.R. 671, ¶ 15; and that OPM’s interpretation of 5 C.F.R.
§ 335.106 is reasonable. ID at 8-9. On this basis, the administrative judge
afforded deference to the position taken by OPM in the VetGuide. ID at 8-9.
Although the agency argues against this deference, it has not, on review,
challenged the administrative judge’s application of these factors.
ORDER
¶11 We ORDER the agency to reconstruct the hiring for the NT-05
Administrative/Technical Specialist position at the Naval Undersea Warfare
Center Division, Newport, Rhode Island, consistent with the right to
consideration requirement set forth at 5 U.S.C. § 3304(f)(1). The Board has
jurisdiction to consider an appellant’s claim of agency noncompliance with a
Board order. See Kerr v. National Endowment for the Arts, 726 F.2d 730, 733
(Fed. Cir. 1984). The agency must complete this action no later than 20 days
after the date of this decision.
¶12 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).
¶13 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).
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¶14 This is the final decision of the Merit Systems Protection Board i n this
appeal. Title 5 of the Code of Federal Regulations, 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.), section 3330c(b). The regulations may be
found at 5 C.F.R. §§ 1201.202, 1201.203, and 1208.25. If you believe you meet
these requirements, you must file a motion for attorney fees 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 TO THE APPELLANT REGARDING YOUR
RIGHT TO REQUEST DAMAGES
You may be entitled to be compensated by the agency for any loss of wages
or benefits you suffered because of the violation of your veterans’ preference
rights. 5 U.S.C. 3330c(a); 5 C.F.R. § 1208.25(a). If you are entitled to such
compensation, and the violation is found to be willful, the Board has authority to
order the agency to pay an amount equal to back pay as liquidated damages.
5 U.S.C. 3330c(a); 5 C.F.R. § 1208.25(a). You may file a petition seeking
compensation for lost wages and benefits or damages with the office that issued
the initial decision in your appeal WITHIN 60 CALENDAR DAYS OF THE
DATE OF THIS DECISION.
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NOTICE OF APPEAL RIGHTS 4
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
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:
4
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.
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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. ____ , 137 S. Ct. 1975 (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
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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 resp ective
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 Employm ent
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
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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. 5 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.
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.
5
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.
13
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.