NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3141
KRISTY R. MACLEOD,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Kristy R. MacLeod, of West Haven, Connecticut, pro se.
Anuj Vohra, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With him on the brief
were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E. Davidson,
Director; and Reginald T. Blades, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3141
KRISTY R. MACLEOD,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in PH3443070183-I-1.
__________________________
DECIDED: June 5, 2008
__________________________
Before MICHEL, Chief Judge, LINN, Circuit Judge, and ZAGEL, District Judge. *
PER CURIAM.
Petitioner Kristy R. MacLeod petitions for review of a final order of the Merit
Systems Protection Board (“Board”) denying her corrective action under the Veterans
Employment Opportunities Act (“VEOA”). MacLeod v. Dep’t of Veterans Affairs, No.
PH-3443-07-0183-I-1 (May 1, 2007) (“Initial Decision”); MacLeod v. Dep’t of Veterans
Affairs, No. PH-3443-07-0183-I-1 (Dec. 6, 2007) (“Final Order”). We affirm the decision
of the Board.
*
Honorable James B. Zagel, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
I. BACKGROUND
MacLeod is the wife of a service-connected disabled veteran. Initial Decision at
2. Her husband has been unable to qualify for any appointment in the civil service or in
the government of the District of Columbia. Id. MacLeod is therefore “preference
eligible” under the VEOA. See 5 U.S.C. § 2108(3)(E).
On August 23, 2006, the Veterans Administration (“VA”) issued two
announcements for the position of Voluntary Services Officer (GS-301-13) in the VA
Connecticut Healthcare System. The first announcement was entitled “PROMOTION
ANNOUNCEMENT” and stated that it was “a solicitation for applications from current
VA employees for competitive promotion consideration.” Resp’t’s Appx. 16. The
Promotion Announcement indicated that it was “OPEN TO ALL SOURCES,” meaning
that certain eligible non-VA employees could apply, including applicants eligible as a
result of “special appointing authorities such as those for disabled veterans.” Id. The
second announcement was entitled “VACANCY ANNOUNCEMENT,” stated that it was
“OPEN TO ALL US CITIZENS,” and was posted on the USAJOBS website. Id. at 17.
MacLeod submitted an application in response to the Vacancy Announcement.
Initial Decision at 3. The VA issued three separate Merit Promotion Certificates listing
candidates who were qualified for the Voluntary Services Officer position, either
because they were current VA employees eligible for promotion or transfer, or because
they were “preference eligible” under the VEOA. MacLeod’s name appeared on one of
these certificates. The VA also generated a Certificate of Eligibles, listing three
candidates for the position who were neither current VA employees nor otherwise
eligible to apply under the Promotion Announcement, but who could have applied under
the Vacancy Announcement.
2008-3141 2
The VA interviewed and rated the candidates and did not select MacLeod for the
position. Id. Instead, the VA selected a current VA employee who transferred from a
different VA facility. Id. at 3-4. This selection was reflected on a Merit Promotion
Certificate.
MacLeod filed a complaint under the VEOA with the Department of Labor. Id. at
2. The Department found her complaint to be without merit, and MacLeod appealed to
the Board. Id. at 1. An administrative judge of the Board denied the appeal, id. at 2,
and the Board denied MacLeod’s petition for review, Final Order at 2-3. MacLeod
petitioned this court for review.
We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). “Our scope of review in
an appeal from a decision of the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; obtained without procedures required by law, rule,
or regulation having been followed; or unsupported by substantial evidence.” Abell v.
Dep’t of the Navy, 343 F.3d 1378, 1382-83 (Fed. Cir. 2003) (citing 5 U.S.C. § 7703(c)).
II. DISCUSSION
As we explained in Joseph v. Federal Trade Commission, “[f]ederal agencies
generally use two types of selection to fill vacancies: (1) the open ‘competitive
examination’ process and (2) the ‘merit promotion’ process.” 505 F.3d 1380, 1381 (Fed.
Cir. 2007) (citing 5 C.F.R. §§ 330.101, 332.101, 335.103 (2007)). The “competitive
examination” process is typically open to the public and is used to select and review
applicants who are not currently agency employees. Id. By contrast, “[t]he merit
promotion process is used when the position is to be filled by an employee of the
2008-3141 3
agency or by an applicant from outside the agency who has ‘status’ in the competitive
service.” Id. at 1382 (citing 5 C.F.R. § 335.103(b)(1)).
Veterans and other “preference eligible” persons under the VEOA are given
special advantages in both the “competitive examination” process and the “merit
promotion” process. Id. at 1381-82. However, the type of advantage that the veteran or
“preference eligible” person receives depends on which process is used. In the
“competitive examination” process, additional points are added to the final rating scores
of “preference eligible” applicants, and “preference eligible” applicants are ranked ahead
of other applicants who have the same score. Id. at 1381. By contrast, in the “merit
promotion” process, the special advantage that a “preference eligible” person gets is
simply the “opportunity to apply” for vacancies that are otherwise open only to current
agency employees:
Congress has provided . . . that “for all merit promotion announcements
. . . veterans . . . are eligible to apply.” 5 U.S.C. §§ 3304(f)(3)-(4).
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.” 5 U.S.C. § 3304(f)(1).
Id. at 1382; see also Abell, 343 F.3d at 1383 (“The VEOA ensures that a preference
eligible veteran . . . has the opportunity to apply for [merit promotion] vacancies.”)
We have expressly held that when an agency uses the “merit promotion”
process, a “preference eligible” person is entitled only to the right to compete, not to the
point and ranking preferences that would have applied if the agency had used the
“competitive examination” process. See Joseph, 505 F.3d at 1382 (“Veterans’ point
preferences under the competitive appointment process do not apply in the merit
promotion process.”); Abell, 343 F.3d at 1383 (“In other words, the VEOA gave [the
2008-3141 4
veteran] the right to apply for the three vacant positions announced by the [agency].
However, the VEOA did not ensure that his application would be successful.”).
Moreover, an agency is permitted to seek applicants for a position under both the
“merit promotion” procedure and the “competitive examination” procedure, but then
ultimately fill the position using the “merit promotion” procedure:
[The veteran] received his ten point veterans’ preference under the
competitive examination procedure, but the [agency] then decided to
make the appointment under the alternative merit promotion procedure.
We know of no statute or regulatory provision that required the [agency],
once it undertook to inaugurate the selection process by following the
alternative procedure, to limit itself to the competitive examination process
in making its final selection. As the Board pointed out in this case, “[a]n
agency has the discretion to fill a vacant position by any authorized
method.”
Joseph, 505 F.3d at 1384 (quoting Joseph v. Fed. Trade Comm’n, 103 M.S.P.R. 684,
689 (2006)). When an agency conducts “simultaneous parallel procedures under the
competitive examination and merit promotion processes” but ultimately fills the position
using the “merit promotion” process, a “preference eligible” person is entitled only to the
opportunity to compete, not to point or ranking preferences. Id. at 1384-85; Abell, 343
F.3d at 1383.
In this case, it is clear from the record that the VA ultimately filled the Voluntary
Services Officer position using the “merit promotion” process, not the “competitive
examination” process. Specifically, the Promotion Announcement demonstrated the
VA’s intent to proceed under the “merit promotion” process, and the VA finalized its
selection of a candidate by issuing a Merit Promotion Certificate that listed qualified
candidates “[i]n accordance with the procedures of the Merit Promotion Plan.” Pet’r’s
Appx. Tab 5, at C-1. The VA therefore satisfied its obligations under the VEOA by
allowing MacLeod to compete in the “merit promotion” process.
2008-3141 5
We have considered each of MacLeod’s arguments to the contrary but do not
find them persuasive. We briefly address three of those arguments here. First,
MacLeod argues that the Vacancy Announcement posted on USAJOBS demonstrates
that the VA was proceeding under the “competitive examination” process, because it
was listed as “OPEN TO ALL US CITIZENS.” At most, this second announcement
shows that the VA used “simultaneous parallel procedures under the competitive
examination and merit promotion processes.” Joseph, 505 F.3d at 1384. It does not
change the fact that the VA ultimately used the “merit promotion” process to fill the
position.
Second, relying on Brown v. Department of Veterans Affairs, 247 F.3d 1222
(Fed. Cir. 2001), MacLeod argues that a “preference eligible” person “seeking initial
appointment or retention in employment” is entitled to preferential treatment over an
existing agency employee seeking a transfer or promotion. See id. at 1223 (“The AJ
concluded that veterans receive preference only when ‘seeking initial appointment or
retention in employment.’”). Brown held simply that a “preference eligible” person that is
already employed by an agency is not entitled to preferential treatment when seeking
promotion or retention. Id. at 1224. It said nothing about the comparative treatment of
“preference eligible” non-employees and agency employees seeking to compete for a
position under the “merit promotion” process. As we held in Joseph, the point and
ranking preferences to which a “preference eligible” person is entitled when “seeking
initial appointment” are only applicable when an agency uses “competitive examination”
to fill a position. 505 F.3d at 1382.
2008-3141 6
Finally, MacLeod argues that the Board conducted a “cursory review” of the
findings of the administrative judge. The Board made the decision of the administrative
judge final by denying MacLeod’s petition for review. See Final Order at 3 (“The initial
decision of the administrative judge is final. This is the Board’s final decision in this
matter.”); see also 5 C.F.R. § 1201.113(b) (“If the Board denies all petitions for review,
the initial decision will become final when the Board issues its last decision denying a
petition for review.”). The Board also made clear that it “fully consider[ed] the filings” in
reaching its decision. Final Order at 2. We see nothing in the record to suggest that
MacLeod’s arguments were not fully and fairly considered by the Board.
III. CONCLUSION
For the foregoing reasons, we affirm the order of the Board.
COSTS
No costs.
2008-3141 7