Early v. Office of Pers. Mgmt.
| Decision Date | 04 April 2023 |
| Docket Number | CB-1205-17-0011-U-1,CB-1205-18-0020-U-1 |
| Parties | JOSEPH D. EARLY, Petitioner, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. |
| Court | Merit Systems Protection Board |
THIS FINAL ORDER IS NONPRECEDENTIAL[1]
Joseph D. Early, Pittsburgh, Pennsylvania, pro se.
Julie Ferguson Queen, Esquire, Washington, D.C., for the agency.
BEFORE Cathy A. Harris, Vice Chairman, Raymond A. Limon, Member Tristan L. Leavitt, Member [2]
¶1 The petitioner requests that we review 5 C.F.R. § 302.101(c)(8), a provision of an Office of Personnel Management (OPM) regulation that exempts attorney positions from certain appointment procedures, and 5 C.F.R § 335.103, an OPM regulation governing agency merit promotion plans. The two petitions present similar issues related to veterans' preference requirements, and therefore we JOIN them for consideration. See 5 C.F.R. § 1201.36(a)(2) (). For the reasons set forth below, we DENY the petitioner's requests because they do not meet our discretionary review criteria.
¶2 The petitioner is a preference-eligible veteran who applied, but was not selected, for excepted-service attorney positions with the Department of Veterans Affairs (VA). In his first petition, Early v. Office of Personnel Management, MSPB Docket No. CB-1205-17-0011-U-1, Request File (0011 RF), Tab 1, he challenges the validity of 5 C.F.R. § 302.101(c)(8). That provision states the following:
¶3 The petitioner contends that section 302.101(c)(8) "unlawfully purports to exempt agencies from complying with veterans' preference requirements when hiring for attorney positions." 0011 RF, Tab 1 at 2, 5. He primarily focuses on two requirements: the application of preference points when attorney applicants are scored and ranked, and the rights afforded to preference-eligible candidates when a hiring agency decides to "pass over" him or her in favor of a nonpreference-eligible candidate. See 0011 RF, Tab 9 at 5 (). OPM responds that the Board should deny the request because the petition does not meet the Board's prudential criteria for review. 0011 RF, Tab 8 at 21.[3] In particular, OPM points out that the Board's reviewing court, the U.S. Court of Appeals for the Federal Circuit, has upheld the validity of 5 C.F.R. § 302.101(c)(8) in two precedential opinions, Patterson v. Department of the Interior, 424 F.3d 1151 (Fed. Cir. 2005), and Jarrard v. Department of Justice, 669 F.3d 1320 (Fed. Cir. 2012). Id. at 12. In his reply, the petitioner asserts that Patterson and Jarrard are distinguishable. 0011 RF, Tab 9 at 5-9.
¶4 In his second request for regulation review, the petitioner challenges the simultaneous use of the competitive examination process and a merit promotion plan for a single position. Early v. Office of Personnel Management, MSPB Docket No. CB-1205-18-0020-U-1, Request File (0020 RF), Tabs 1, 9. OPM's regulation at 5 C.F.R. § 335.103 authorizes agencies to devise and utilize merit promotion plans "to insure a systematic means of selection for promotion according to merit." 5 C.F.R. § 335.103(a).[4] The petitioner contends that the regulation violates veterans' preference requirements by (1) not following the rule that an agency must select from among the top three applicants on the register corresponding to that position; (2) permitting agencies to select candidates from more than one certificate of eligibles; (3) bypassing the rights afforded to a preference-eligible veteran when an agency decides to "pass over" him or her in favor of a nonpreference-eligible candidate; and (4) not following alternative ranking and selection procedures. 0020 RF, Tab 1. OPM responds that the Board should deny the request because the petition does not meet the Board's prudential criteria for review. 0020 RF, Tab 8. In particular, OPM notes that the Federal Circuit upheld the validity of merit promotion plans in Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007). 0020 RF, Tab 8 at 8-9. In his reply, the petitioner argues that Joseph did not address his argument that an agency must select applicants from a single certificate. 0020 RF, Tab 9 at 4.
¶5 A petitioner generally establishes the Board's jurisdiction under 5 U.S.C. § 1204(f) by describing in detail the reasons why an OPM regulation, either on its face or as implemented, would require an employee to commit a prohibited personnel practice; by specifically identifying the prohibited personnel practice at issue; and by explaining the action the requester would like the Board to take. 5 U.S.C. § 1204(f)(2); 5 C.F.R. § 1203.11(b); see Di Jorio v. Office of Personnel Management, 54 M.S.P.R 498, 500 (1992). Here, the petitioner alleges that 5 C.F.R. § 302.101(c) "unlawfully purports to exempt agencies from complying with veterans' preference requirements when hiring for attorney positions," in violation of 5 U.S.C. § 2302(b)(11)[5] and (b)(12).[6] 0011 RF, Tab 1 at 10-11.
Similarly, the petitioner argues that 5 C.F.R. § 335.103 violates 5 U.S.C. § 2302(b)(11) and (b)(12) because it allows hiring agencies to circumvent certain preference-eligible requirements. 0020 RF, Tab 1 (continuation sheet). The petitioner's allegations are sufficient to establish our regulation review jurisdiction under 5 U.S.C. § 1204(f).
¶6 Our regulation review authority, however, is discretionary. See 5 U.S.C. § 1204(f)(1)(B) (); Clark v. Office of Personnel Management, 95 F.3d 1139, 1141 (Fed. Cir. 1996) (recognizing that Congress explicitly authorized the Board to review directly any provision of any OPM rule or regulation and stated that the decision whether to grant such review was in the Board's "sole discretion"). To guide us in deciding whether to exercise our discretion, we consider, among other things, the likelihood that the issue will be timely reached through ordinary channels of appeal, the availability of other equivalent remedies, the extent of the regulation's application, and the strength of the arguments against the validity of its implementation. McDiarmid v. U.S. Fish and Wildlife Service, 19 M.S.P.R. 347, 349 (1984). Upon careful consideration of these factors, we decline the petitioner's requests for regulation review.
¶7 The issues raised by the petitioner could be timely reached through ordinary channels of appeal. The Veterans Employment Opportunities Act of 1998 (VEOA) provides that a preference-eligible veteran "who alleges that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor." 5 U.S.C. § 3330a(a)(1); see Dean v. Department of Labor, 808 F.3d 497, 499 (Fed. Cir. 2015) (). In fact, the petitioner has previously filed VEOA complaints with the Department of Labor, and subsequent appeals to the Board, when he was not selected for attorney positions with the VA. See 0011 RF, Tab 1 at 11-12. In his VEOA appeals, the petitioner alleged that the VA did not properly award him the preference to which he is entitled under the Veterans' Preference Act of 1944 (VPA), Pub. L. No. 78-359, 58 Stat. 387. Id. at 11. The petitioner states that he voluntarily withdrew his VEOA appeals because in both instances the VA appointed another preference-eligible applicant. Id.; see Early v. Department of Veterans Affairs, MSPB Docket No. PH-3330-16-0343-I-1, Initial Decision (July 20, 2016) (granting request to withdraw appeal); Early v. Department of Veterans Affairs, MSPB Docket No. PH-3330-15-0318-I-1, Initial Decision (July 22, 2015) (granting request to withdraw appeal). Nevertheless, the petitioner's VEOA appeals demonstrate that the issues he presents here may be timely reached through ordinary channels of appeal. We note that, in addition to VEOA, the petitioner may be able to present his claims under the Uniformed Services Employment and Reemployment Rights Act (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) if he believes an agency did not select him due to his prior military service. See Patterson, 424 F.3d at 1161.
¶8 In the context of a VEOA or USERRA appeal, the Board could consider the petitioner's claims regarding the validity of applicable OPM regulations. See, e.g. Gingery v. Department of Defense, 550 F.3d 1347, 1354 (Fed. Cir. 2008) (...
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