UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN M. DONAHUE, DOCKET NUMBER
Appellant, PH-3330-17-0031-I-1
v.
DEPARTMENT OF LABOR, DATE: July 19, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sean M. Donahue, Hazleton, Pennsylvania, pro se.
Jennifer L. Bluer, Esquire, Richard T. Buchanan, Esquire, and Anthony D.
DiBacco, Philadelphia, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL 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). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 af fected 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 review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The following facts, as further detailed in the initial decision, are not in
dispute. The appellant applied for a GS-11 Workforce Program Specialist
vacancy in the agency’s Employment and Training Administration. Initial Appeal
File (IAF), Tab 40, Initial Decision (ID) at 2. Among other things, his
application recognized the appellant’s entitlement to a 5 -point veterans’
preference. Id.
¶3 The agency used the category rating method during its selection process.
ID at 5; see 5 U.S.C. § 3319. Under that method, applicants completed a
competency based questionnaire (CBQ), which computer software scored. ID
at 5. Based on those scores, applicants were divided into three qualification
categories, A, B, and C. Id. Applicants with a 10-point veterans’ preference
were automatically placed atop category A, regardless of their CBQ score. Id.
Applicants with a 5-point veterans’ preference remained in the category assigned
by virtue of their CBQ score, but were placed atop of that category. Id.
3
¶4 Of the 156 applicants for the Workforce Program Specialist vacancy, 2 were
entitled to a 10-point veterans’ preference and were, therefore, placed atop
category A. ID at 5-6. The appellant’s CBQ score resulted in his placement
within category C, and his 5-point veterans’ preference resulted in his placement
atop of that category. ID at 6. The agency ultimately selected one of the
candidates with the 10-point veterans’ preference to fill its vacancy. Id.
¶5 The appellant filed a complaint with the agency, alleging that , by not
selecting him, it had violated VEOA. ID at 2. The agency’s Veterans’
Employment and Training Service investigated and found no such violation. ID
at 2-3. The appellant then filed the instant VEOA appeal. ID at 3.
¶6 After holding the requested hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action. ID at 1.
First, he found no merit to the appellant’s claim that category rating is only
appropriate in the context of scientific vacancies. ID at 6 -7. Next, the
administrative judge concluded that the agency applied category rating properly.
ID at 7-8. Finally, he found that the appellant’s remaining arguments, such as his
disagreement with how effective the CBQ was at measuring an applicant’s
preparedness for a vacancy, did not show a VEOA violation. ID at 8 -9. The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
The agency has filed a response, and the appellant has replied. PFR File,
Tabs 3-4.
¶7 The Board has jurisdiction over two types of VEOA claims: (1) the denial
of a right to compete; and (2) the violation of a statute or regulation relating to
veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference
claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see
generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015)
(analyzing a VEOA claim to determine under which theory it belonged). Here,
the appellant has not alleged that he was denied the right to compete, nor is there
4
anything in the record to suggest that he was. Accordingly, the administrative
judge properly considered his as a veterans’ preference claim. ID at 6.
¶8 To prevail on the merits of a claim that the agency violated his veterans’
preference rights, the appellant must prove by preponderant evidence that (1) he
exhausted his remedy with the Department of Labor; (2) he is a preference
eligible within the meaning of VEOA; (3) the action at issue took place on or
after the October 30, 1998 enactment date of VEOA; and (4) the agency violated
his rights under a statute or regulation relating to veterans’ preference. See
Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012)
(setting forth these elements in terms of the appellant’s lesser jurisdictional
burden); Isabella v. Department of State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007)
(recognizing that, to prevail on the merits, the appellant must prove these
elements by preponderant evidence), aff’d on recons., 109 M.S.P.R. 453 (2008).
The administrative judge found that the appellant failed to prove t he final
requirement—that the agency violated his rights under a statute or regulation
relating to veterans’ preference. ID at 6-9. We agree.
¶9 The appellant reasserts arguments he made before the administrative judge.
According to the appellant, the agency’s use of a CBQ to categorize applicants is
inadequate because its multiple choice questions limit an applicant’s ability to
explain his or her qualifications. PFR File, Tab 1 at 4-5. He further argues that
the CBQ allows applicants to answer untruthfully. Id. at 5. However, he later
acknowledges that the agency reviews applicants that are placed in the highest
category, arguing that the agency should similarly review those that fall into other
categories to ensure they were rated properly. Id. The appellant also reasserts
that category ranking of applicants is only appropriate for scientific positions. Id.
Finally, the appellant generally argues that the Government has failed him, while
benefiting individuals such as the agency’s representative an d a testifying
witness, whom he characterizes as “non-white . . . politically liberal foreigners.”
Id. at 6.
5
¶10 Although we have considered the appellant’s arguments, we find them
unavailing. While the appellant has expressed disagreement with the agency’s
use of the CBQ and category ranking, based on concerns about its adequacy and
effectiveness, that disagreement does not establish a violation of his veterans’
preference rights. See Launer v. Department of the Air Force, 119 M.S.P.R. 252,
¶ 7 (2013) (explaining the category rating system of 5 U.S.C. § 3319 and
recognizing that it is now the primary method by which all agencies fill
competitive-service vacancies).
¶11 In addition, the appellant’s suggestion that category ranking is only
appropriate for scientific positions is incorrect. See Jones v. Department of
Health and Human Services, 119 M.S.P.R. 355, ¶¶ 2, 12-16 (2013) (discussing an
agency’s use of category ranking to fill a Public Health Advisor position), aff’d,
544 F. App’x 976 (Fed. Cir. 2013); Launer, 119 M.S.P.R. 252, ¶¶ 2, 7-10
(discussing an agency’s use of category ranking to fill an Engineering Equipment
Operator position). The language of the statute reflects otherwise. 5 U.S.C.
§ 3319(b) (requiring that “[f]or other than scientific and professional positions at
GS-9 of the General Schedule (equivalent or higher), qualified
preference-eligibles who have a compensable service-connected disability of 10
percent or more shall be listed in the highest quality category”).
¶12 Lastly, while the appellant is frustrated by his failure to secure the
employment he seeks, the Board’s role under VEOA is not to determine whether a
preference eligible is qualified for a particular position or whether he should have
been selected for the position in question. Miller v. Federal Deposit Insurance
Corporation, 121 M.S.P.R. 88, ¶ 11 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016).
The Board instead focuses on the narrower question of whether the agency
violated the individual’s veterans’ preference rights. Id. In this case, the
appellant has failed to identify evidence of any such violation.
6
NOTICE OF APPEAL RIGHTS 2
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:
2
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.
7
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
8
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
9
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. 3 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.
3
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.
10
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.