Abell v. Department of Navy, 03-3033.

• Decision Date: 09 September 2003
• Docket Number: No. 03-3033.,03-3033.
• Citation: 343 F.3d 1378
• Parties: Barry J. ABELL, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

343 F.3d 1378

Barry J. ABELL, Petitioner, v. DEPARTMENT OF THE NAVY, Respondent.

No. 03-3033.

United States Court of Appeals, Federal Circuit.

September 9, 2003.

Jack E. Ferrebee, Attorney At Law, of Virginia Beach, Virginia, argued for petitioner.

Wanda Rubianes-Collazo, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With her on the brief were David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief was Thomas D. Miller, Department of the Navy, Office of Counsel, Office of Civilian Human Resources, of Washington, DC.

Before LOURIE, SCHALL, and LINN, Circuit Judge.

SCHALL, Circuit Judge.

Barry J. Abell petitions for review of the final decision of the Merit Systems Protection Board ("Board") that sustained his non-selection by the Department of the Navy ("Navy") for the position of GS-13 General Engineer. Abell v. Dep't of Navy, 92 M.S.P.R. 397 (2002). In his appeal to the Board, Mr. Abell argued that the Navy violated his right under the Veterans Employment Opportunity Act of 1998 ("VEOA") to compete for one of three vacant positions when it cancelled the announcement after only filling two of the vacancies. The Board rejected Mr. Abell's argument. The Board concluded that the Navy's cancellation of its vacancy announcement did not violate Mr. Abell's veterans' preference rights. Id. at 400. It also concluded that the Navy was not required to inform Mr. Abell of its efforts to pass him over for the vacancy. Id. at 402 n. 2. We affirm.

BACKGROUND

I. Factual Background

Mr. Abell joined the United States Marine Corps in 1976; four years later, he was given an honorable discharge. At the time of his discharge, he received a thirty percent disability rating for disabilities resulting from his service in the Marine Corps. At the present time, Mr. Abell is rated as fifty percent disabled.

Following his military service, Mr. Abell attended college and obtained an engineering degree. He subsequently held positions with General Electric Government Electronic Systems, Martin Marietta Overseas Corporation, and Lockheed Martin Government Services.

As a result of his disabilities stemming from his service in the Marine Corps, Mr. Abell is a preference eligible veteran entitled to preference eligible points under 5 U.S.C. § 3309.¹ Preference eligible veterans include veterans of service in the armed forces, or relatives thereof, who satisfy the requirements of 5 U.S.C. § 2108. By statute, a preference eligible veteran, who receives a passing grade in an examination for entrance into the competitive civil service, is entitled to five or ten additional points above his or her earned rating. 5 U.S.C. § 3309. Because Mr. Abell is a disabled veteran under 5 U.S.C. § 2108(3)(C), he is eligible for ten additional points under 5 U.S.C. § 3309(1).

On August 2, 1999, the Navy announced three vacancies for the position of GS-13 General Engineer at the AEGIS Combat Systems Center, Wallops Island, Virginia. The vacancy announcement stated that all United States citizens were eligible to apply, including preference eligible veterans. The announcement also stated that it was both a Merit Promotion and a Public Notice Announcement. Merit promotion procedures govern the placement, promotion, transfer, reassignment, and other movement of competitive service employees. Public Notice Announcements announce vacancies to all sources. Preference eligible veterans may apply to fill vacancies under merit promotion procedures when an agency accepts applications from individuals outside its own workforce. See 5 U.S.C. § 3304(f)(1). The announcement stated that the Navy would consider applications generally under competitive procedures² and that preference eligibles would be considered under merit promotion procedures. Finally, the Navy's announcement stated that each applicant claiming entitlement to a ten-point veterans' preference had to submit a letter from the Department of Veterans Affairs ("VA") indicating that he or she had received benefits within the last twelve months.

Mr. Abell responded to the Navy's announcement by submitting an application for the three announced positions. With his application, Mr. Abell presented a letter from the VA, dated September 29, 1997, indicating that he was in receipt of disability compensation on account of a service-connected disability rated at thirty percent or more. The Navy's Delegated Examining Unit reviewed Mr. Abell's application and determined that he met the basic qualifications specified in the vacancy announcement. The ranking officials then reviewed his application and determined that he was entitled to a score of 98 points, which included a five-point benefit for veterans' preference under 5 U.S.C. § 3309. Mr. Abell did not receive a ten-point benefit for veterans' preference because his VA letter did not indicate that benefits had issued within the last twelve months.

As a result of his 98 point score, the Navy ranked Mr. Abell as one of the top three candidates on a certificate of eligibles prepared in response to the announcement. Based on the certificate of eligibles, the Navy selected several candidates to be interviewed, including Mr. Abell. After the interviews, the Navy tentatively chose Paul Dendorfer, Scott Green, and Larry Small to fill the three vacant positions. Neither Mr. Dendorfer, Mr. Green, nor Mr. Small was employed by the Navy. However, Mr. Dendorfer was a five-point preference eligible veteran with a total score equal to Mr. Abell's score of 98 points. At the same time, the Navy prepared a request to be submitted to the Office of Personnel Management ("OPM") to pass over Mr. Abell in favor of Mr. Green, who was not a preference eligible applicant.

A non-preference eligible applicant may only be selected over a preference eligible candidate under certain circumstances. Congress created a procedure for appointing authorities to use when seeking to pass over a preference eligible candidate in order to fill a vacancy with an individual who is not a preference eligible. See 5 U.S.C § 3318(b). The procedure requires the appointing authority to send a request to OPM, along with a statement of the reasons for the request to pass over the preference eligible candidate. Id. The Navy prepared a request to pass over Mr. Abell in favor of Mr. Green, stating reasons for the request. However, it never submitted the request to OPM for review. Instead, it asked Management Analyst Marsha Arrington to determine whether the request to pass over would be sustainable based on the justifications given by the Navy.

Upon reviewing the case file, Ms. Arrington realized that one of the three identified candidates, Mr. Small, did not meet the basic qualifications for the position listed in the Navy's announcement. That was because Mr. Small did not possess a college degree in engineering, which was one of the required qualifications for applying for the vacant positions. As far as the request to pass over was concerned, Ms. Arrington offered four alternatives to the Navy. First, she stated that the Navy could change the scores and ranks of the candidates based on their interviews; second, she stated that the Navy could select Mr. Abell; third, she stated that the Navy could cancel the vacancy and readvertise it; and finally, she stated that the Navy could apply to OPM for passover authority. With respect to the final option, Ms. Arrington stated that it would "NOT BE AN EASY TASK SINCE THE RANKING WAS DONE BY A NAVSEA SUBJECT MATTER EXPERT and since it is now A PROHIBITED PERSONNEL PRACTICE TO TAKE ANY ACTION THAT WOULD VIOLATE VETERANS PREFERENCE." (emphasis in original)

The Navy replaced Mr. Small's selection with the selection of an internal candidate, Leslie Martin, who was a GS-12 Electronic Engineer with the Navy. Effective July 16, 2000, the Navy promoted Mr. Martin to a GS-13 General Engineer position, thereby filling one of the three vacancies under merit promotion authority. Ultimately, Mr. Dendorfer was selected from the Delegated Examining Open Competitive certificate to fill the second of the three vacancies. Because Mr. Dendorfer was a preference eligible, the Navy could select him over Mr. Abell without requesting passover authority from OPM. Rather than making a third selection by passing over Mr. Abell, the Navy cancelled the last vacancy announcement. As a result of this process, Mr. Abell was not selected.

II. Procedural History

In 2000, Mr. Abell filed a claim under the VEOA with the Department of Labor ("DOL") alleging that his rights as a veteran had been violated. The VEOA affords a veteran, who alleges that an agency has violated his or her rights under any statute or regulation relating to veterans' preference, a right to file a complaint with the Secretary of Labor. 5 U.S.C. § 3330a(a)(1). If the Secretary is unable to resolve the complaint within 60 days, the veteran may file an appeal of the alleged violation with the Board. Id. § 3330a(d)(1). DOL responded to Mr. Abell's claim on October 25, 2000 but was unable to resolve the complaint. Mr. Abell timely appealed to the Board. Under the VEOA, the Board has jurisdiction over appeals alleging a violation of any right under a statute or regulation relating to veterans' preference. Id.

At the Board, Mr. Abell argued that his right to a veterans' preference was violated when the Navy credited him with a five-point rather than a ten-point preference, to which he alleged he was entitled. He further alleged that the selecting official's decision to pass him over to reach a non-preference eligible violated his veterans' preference and denied him the opportunity to compete under the VEOA. Finally, he alleged that the Navy's decision to cancel the advertised vacancy rather than select him also denied him the opportunity to compete.

In an initial decision, the administrative judge ("AJ") found that the...