UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID J. MCCAULEY, DOCKET NUMBER
Appellant, CH-3443-14-0099-I-3
v.
DEPARTMENT OF VETERANS DATE: July 8, 2015
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
David J. McCauley, Saint Charles, Missouri, pro se.
Kimberly Negley, Saint Louis, Missouri, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 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). For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 The appellant filed an appeal alleging that the agency failed to select him
for various positions, and the appeal was dismissed without prejudice to allow
him an opportunity to exhaust his administrative remedies. McCauley v.
Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-1, Initial
Appeal File (IAF), Tabs 1, 14. 2 Upon refiling, the appellant clarified that his
appeal was limited to the agency’s decision not to select him for a Title 38
Medical Support Assistant (MSA) position (vacancy announcement STL-T38H-
13-911450), and he alleged that the agency did not properly consider his status as
a veteran. McCauley v. Department of Veterans Affairs, MSPB Docket No.
CH-3443-14-0099-I-2, Initial Appeal File (I-2 IAF), Tabs 1, 10. The agency
conceded that it filled the vacancies pursuant to the Master Agreement between
the agency and the American Federation of Government Employees, which
required the agency to first consider facility-wide candidates. See I-2 IAF, Tab 7
at 14, Subtab 4j at 2 (“[F]irst and full consideration shall be given to any best
qualified candidates within the facility (or more narrow area).”). There appears
to be no dispute that the appellant was not a facility-wide candidate.
¶3 The administrative judge scheduled a status conference to apprise the
parties of the Board’s decision in Modeste v. Department of Veterans
Affairs, 121 M.S.P.R. 254 (2014), which held that the agency’s reliance on its
master labor agreement did not excuse its violation of Mr. Modeste’s right to
compete under VEOA. See I-2 IAF, Tab 13. During this conference, the agency
2
During the course of the appeal, the appellant raised allegations of reprisal for
whistleblowing activity. See IAF, Tab 12. The regional office docketed a separate
appeal regarding these allegations and issued an initial decision on June 25, 2015, see
McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-1221-14-0721-
W-1, Initial Decision (June 25, 2015). We deny the appellant’s request to join these
appeals.
3
indicated that additional MSA positions became available after the MSA positions
at issue in this appeal had been filled. See I-2 IAF, Tab 14 at 1. According to the
administrative judge:
The agency further reported that it has made preliminary selections
for the additional positions and that due to a clerical error, the
Appellant and four other veterans were not included on the
certificate used to make the selections. The agency proposed the
following as a reconstruction remedy: (1) the agency will hold the
preliminary selections in abeyance, (2) a certificate will be created to
include the Appellant and the four other veterans, (3) the certificate
will be forwarded to the hiring authority, and (4) the Appellant and
the four other veterans will be offered interviews. The agency
estimated it would take approximately two weeks to initiate the
process.
Id. The appellant agreed to the agency’s proposed reconstruction remedy and to
have his appeal dismissed without prejudice. Id. at 2. On July 2, 2014, the
appeal was dismissed without prejudice for 90 days. See I-2 IAF, Tab 15.
¶4 Approximately 50 days later, on August 21, 2014, the appellant filed
another appeal, alleging that the agency failed to fulfill its obligations in the
reconstructed selection process and that he was interviewed for another position
at a lower pay grade. See McCauley v. Department of Veterans Affairs, MSPB
Docket No. CH-3443-14-0099-I-3, Initial Appeal File (I-3 IAF), Tab 1. The
administrative judge issued an initial decision noting the following:
(1) the appellant was interviewed for an MSA position; (2) he was informed that
he had been selected for one of the MSA positions; (3) he declined the offer; and
(4) the details of the offered position were the same as one of the positions for
which he initially had applied. I-3 IAF, Tab 9, Initial Decision (ID). The
administrative judge found that the agency complied with all of its obligations
under the agreed-upon reconstruction remedy and that the appellant was therefore
provided with a lawful selection process. See ID at 6-7. The administrative
judge denied the appellant’s request for corrective action, finding that he was not
denied a meaningful opportunity to compete for the MSA position and he did not
4
demonstrate that his nonselection violated one or more of his statutory or
regulatory veterans’ preference rights. See ID at 7-8.
¶5 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. See Petition for Review (PFR) File,
Tabs 1-2, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On petition for review, the appellant alleges, among other things, that the
selection process was not properly reconstructed, and he challenges the
administrative judge’s conclusion that he was offered the same position that was
advertised in the original vacancy announcement. PFR File, Tab 1 at 1-3. He
also asserts that the agency has “an integrity issue.” Id. at 2.
¶7 An appellant must receive explicit information on what is required to
establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). Other than noting that an
unsuccessful applicant may challenge a nonselection as a violation of his
veterans’ preference rights, see IAF, Tab 2, the administrative judge did not give
the appellant adequate notice of the jurisdictional requirements for a veterans’
preference appeal or a right to compete appeal, 3 see, e.g., Lazaro v. Department
of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (explaining how to
establish Board jurisdiction over a veterans’ preference appeal brought pursuant
to 5 U.S.C. § 3330a(a)(1)(A)); Becker v. Department of Veterans
Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (explaining how to establish Board
3
The agency discussed the jurisdictional burden in a veterans’ preference appeal in its
submission on jurisdiction and motion to dismiss, IAF, Tab 11 at 6-7, and the Board has
held that such notice could cure the administrative judge’s error in this regard, see, e.g.,
Nichols v. Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996). We conclude,
however, that the agency’s discussion of the jurisdictional burden does not constitute
sufficient jurisdictional notice to cure the administrative judge’s error because the
appeal was subsequently dismissed without prejudice pursuant to the parties’
agreed-upon reconstruction remedy, and it does not appear that the appellant was on
notice that he still had to prove that the Board has jurisdiction over the appeal.
5
jurisdiction over a “right to compete” appeal under 5 U.S.C. § 3330a(a)(1)(B)).
Therefore, we vacate the initial decision and remand the appeal for the
administrative judge to give proper jurisdictional notice for a veterans’ preference
appeal and a right to compete appeal.
¶8 We wish to make one point of clarification if the administrative judge finds
that the Board has jurisdiction over the appeal on remand. The administrative
judge stated in the initial decision that “the only remaining issue is whether the
[agency] has fully complied with its obligations under the reconstruction remedy
agreed upon by all parties.” ID at 6. Even if the agency complied with each of
the terms of the parties’ agreed-upon reconstruction remedy, 4 the administrative
judge must still determine whether, through the agency’s reconstructed selection
process, the appellant received all the relief to which he would have been entitled
if he had prevailed on his VEOA claim before the Board. See Phillips v.
Department of the Navy, 114 M.S.P.R. 19, ¶¶ 14-20 (2010) (concluding that the
agency’s “hypothetical” reconstructed selection process did not give the appellant
an opportunity to compete because the agency did not remove the original
selectees, the members of the reconstructed selection board were not the original
selection board members, and it was not clear how many positions had been
filled); see also Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 18
(2010) (finding that, because the appellant’s assertions that the agency violated
his right to compete during the reconstructed hiring process were without merit,
he had obtained all of the relief he could have obtained had he prevailed on his
VEOA claim before the Board).
4
We do not consider the parties’ apparent agreement, memorialized in an order from a
status conference, see I-2 IAF, Tab 14, to be a settlement agreement that resolves the
initial appeal because the administrative judge did not make a finding of Board
jurisdiction, and there is no discussion of the voluntariness of the agreement and/or the
parties’ intent that the agreement be enforceable by the Board. This conclusion is
buttressed by the fact that the administrative judge did not dismiss the appeal in MSPB
Docket No. CH-3443-14-0099-I-2 as settled, and she did not treat the appellant’s matter
in MSPB Docket No. CH-3443-14-0099-I-3 as a compliance appeal.
6
¶9 The appellant raises concerns below and on petition for review that the
position for which he was interviewed and subsequently selected was not the
same position for which he originally had applied. See I-3 IAF, Tabs 1, 3; see
also PFR File, Tab 1. Even if the Board had jurisdiction over the appeal, the
record is insufficiently developed for us to resolve whether, through the agency’s
reconstructed selection process, the appellant obtained all of the relief he could
have obtained had he prevailed on his VEOA claim before the Board. If the
administrative judge determines that the Board has jurisdiction over the appeal on
remand, she shall evaluate this issue in the first instance.
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for jurisdictional notice and further adjudication in accordance with this
Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.