Patterson v. Department of Interior
| Decision Date | 19 September 2005 |
| Docket Number | No. 05-3047.,05-3047. |
| Citation | 424 F.3d 1151 |
| Parties | Guy C. PATTERSON, Petitioner, v. DEPARTMENT OF the INTERIOR, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
Guy C. Patterson, pro se petitioner.
Cristina C. Ashworth, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director and Robert E. Kirschman, Jr., Assistant Director. Of counsel on the brief were Steven E. Abow and Risa B. Cherry, Attorneys, Office of Personnel Management, of Washington, DC.
Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and BRYSON, Circuit Judge.
Guy C. Patterson applied for the position of Attorney-Advisor, GS-0905-11/13, with the Department of the Interior ("agency") in Pittsburgh, Pennsylvania. After the agency did not select him for the position, Mr. Patterson appealed to the Merit Systems Protection Board ("Board"), asserting claims under the Veterans Employment Opportunities Act of 1998 ("VEOA"), Pub.L. No. 105-339, 112 Stat. 3182 (), and the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), Pub.L. No. 103-353, 108 Stat. 3149 ().1 After the Board dismissed his appeal for lack of jurisdiction, Patterson v. Dep't of the Interior, PH-3443-03-0078-I-1 (M.S.P.B. Sept. 22, 2004) ("Final Decision"); Patterson v. Dep't of the Interior, PH-3443-03-0078-I-1 (M.S.P.B. Mar. 11, 2003) ("Initial Decision"), Mr. Patterson petitioned us for review. For the reasons set forth below, we see no error in the Board's dismissal of Mr. Patterson's VEOA claim. However, we conclude that the Board did err in dismissing his USERRA claim. Accordingly, the Board's decision is affirmed-in-part and reversed-in-part, and the case is remanded to the Board for adjudication of the merits of Mr. Patterson's USERRA claim.
On July 16, 2002, the agency opened Vacancy Announcement No. 02-13-SOL-PITTSBURGH, soliciting applications for the position of Attorney-Advisor (General) GS-0905-11/13 in its Office of the Solicitor in Pittsburgh, Pennsylvania. The announcement stated that the position was "in the Excepted Service" and, among other things, requested that applicants submit information pertinent to whether they qualified for a "veterans' preference." Mr. Patterson submitted an application on July 21, 2002. His application stated that he had served on active duty with the U.S. Navy from May 1989 through July 1992.
On August 22, 2002, Mr. Patterson sent a letter to the agency inquiring as to the rating assigned to his application. The agency responded by informing Mr. Patterson that although it had not yet completed the preliminary review of the applications, "no numerical score will be assigned," as "[i]t is not the practice of this office to assign numerical scores to attorney applications." After about one month, Mr. Patterson sent a second letter to the agency, inquiring as to the status of his application. The agency subsequently informed Mr. Patterson that it had filled the position.
On October 30, 2002, Mr. Patterson wrote the agency, requesting that it "furnish [him] with the reason or reasons for [his] non-selection ... pursuant to 5 C.F.R. § 302.101(c)."2 In addition, Mr. Patterson filed a complaint with the U.S. Department of Labor ("DOL"), alleging that the agency's decision not to select him for the position resulted in a violation of his veterans' preference rights and amounted to discrimination on the basis of his prior military service, in violation of USERRA. On November 13, 2002, the agency provided Mr. Patterson with the following explanation for his non-selection:
While your academic record appeared good, your resume did not indicate any experience specifically relevant to the work of this office. Your veteran's preference was given consideration as a positive factor in the evaluation process, but as you are aware, selecting a person for an attorney position is a process that requires a careful weighing of a large number of variables. In significant part, I did not feel the preference overcame the lack of relevant experience and/or background.
(Emphasis added). About a week later, DOL notified Mr. Patterson that it had decided to close the investigation into his discrimination complaint based upon its determination that his claims lacked merit.
On November 27, 2002, Mr. Patterson filed an appeal with the Board, asserting that his non-selection by the agency violated his veterans' preference rights under the VEOA and that, by not selecting him, the agency had discriminated against him on the basis of his prior military service, in violation of USERRA. On December 20, 2002, the administrative judge ("AJ") assigned to the case issued a jurisdictional show cause order, requiring Mr. Patterson to come forward with non-frivolous allegations to support his claims. Patterson v. Dep't of Interior, PH-3443-03-0078-I-1 (M.S.P.B. Dec. 20, 2002). Mr. Patterson and the agency both filed responses to the show cause order.
With respect to his VEOA claim, Mr. Patterson alleged that the agency violated his veterans' preference rights by, inter alia, not adding "additional points above his earned rating," as required by 5 U.S.C. § 3309. For its part, the agency argued that attorney positions are excepted from the rating and ranking procedures applicable to veterans' preferences, and that therefore it was not required to follow the scoring procedures set forth at 5 U.S.C. § 3309. The AJ agreed with the agency, reasoning that attorney positions are specifically excepted from the competitive service, and that the agency was therefore not required to "rate and rank" the applicants for the attorney-advisor position. The AJ held that Mr. Patterson "failed to support his VEOA ... claim with any factual assertions which show that the agency violated any statute or regulation relating to veterans' preference." Initial Decision, slip op. at 7. Accordingly, the AJ dismissed Mr. Patterson's VEOA claim for lack of jurisdiction. Id.
As far as his USERRA claim was concerned, Mr. Patterson alleged that the agency's reason for not selecting him was a pretext, and that, in actuality, the agency decided not to select him because of his prior military service. In support of his claim, Mr. Patterson argued that, while the agency's purported reason for not selecting him was that it received applications from more qualified individuals, the person actually selected for the attorney-advisor position did not have any notable academic distinction or particularly relevant work experience. The AJ rejected this argument, stating that Mr. Patterson "did not set forth any specific facts which show that the agency treated him more harshly or disparately in non [sic] selecting him for a position when compared to a similar situated individual who did not have prior military service." Id. slip op. at 5. Rather, the AJ concluded, Mr. Patterson's contention that he was more qualified than the person who received the position merely amounted to "vague and generalized statements" and was not sufficient to make out a non-frivolous claim of discrimination based on prior military service. Id. Consequently, the AJ also dismissed Mr. Patterson's USERRA claim for lack of jurisdiction. Id.
The Board denied Mr. Patterson's petition for review of the AJ's initial decision, Final Decision, and Mr. Patterson subsequently appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
The scope of our review in this case is limited by statute to whether the Board's decision was 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. 5 U.S.C. § 7703(c); Carley v. Dep't of the Army, 413 F.3d 1354, 1356 (Fed.Cir.2005). The issue of whether the Board has jurisdiction over an appeal is a question of law, which we review de novo. Hayes v. United States Postal Serv., 390 F.3d 1373, 1376 (Fed.Cir.2004).
On appeal, Mr. Patterson contends the Board erred in concluding that it lacked jurisdiction over his VEOA and USERRA claims. He contends that the Board had jurisdiction over his VEOA claim because he established that the agency's non-selection violated his veterans' preference rights. He contends that the Board had jurisdiction over his USERRA claim because he asserted a non-frivolous allegation of discrimination on the basis of his prior military service. We address each of Mr. Patterson's contentions in turn, starting with his VEOA claim.
The VEOA provides redress for a preference eligible veteran "who alleges that an agency has violated ... [his or her] rights under any statute or regulation relating to veterans' preference." 5 U.S.C. § 3330a(a)(1)(A) (Supp.2005).3 Veterans' preference rights are defined by the Veterans' Preference Act of 1944 ("VPA"), Pub.L. No. 78-359, 58 Stat. 387 (codified at 5 U.S.C. §§ 2108, 3309-3320), and its attendant regulations, see 5 C.F.R. §§ 302.101-302.403 (2005). The VPA generally gives a qualifying veteran, known as a "preference eligible," various preferences in applying for civil service positions within the competitive and excepted services.4
For example, and of relevance to this appeal, section 3309 of title 5 provides preference eligibles with additional rating points in applying for positions in the competitive service. It reads:
A preference eligible who receives a passing grade in an examination for entrance into the competitive service is entitled to additional points above his earned rating, as follows—
(1) a preference eligible under section 2108(3)(C)-(G) of this title—10 points; and
(2) a preference...
To continue reading
Request your trial
-
Early v. Office of Pers. Mgmt.
...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......
-
Dean v. Dep't of Labor
...without numerical ratings, the agency can use the veterans' preference as a plus factor. Id. § 302.201(b) ; Patterson v. Dep't of Interior, 424 F.3d 1151, 1158–59 (Fed.Cir.2005). Further, the Veterans Employment Opportunities Act ("VEOA") provides a remedy for a preference-eligible veteran ......
-
Kopec v. Department of Veterans Affairs
... ... examination, an agency may meet this requirement by ... considering veterans' preference as a positive factor ... Patterson v. Department of the Interior , 424 F.3d ... 1151, 1159 (Fed. Cir. 2005); Jarrard v. Social Security ... Administration , 115 M.S.P.R ... ...
-
Gingery v. Department of Defense
...makes clear that § 3318 applies in the same manner to the excepted service. The government argues that in Patterson v. Department of the Interior, 424 F.3d 1151 (Fed.Cir.2005), we held that OPM had responsibility for implementing all veterans' preference rights in the excepted service. The ......
-
The Dead Letter Veterans Preference Act: How the Federal Government Is Failing to Lead by Example in Hiring Veterans
...at 2. 45. 5 U.S.C. § 3301 (2012). 46. Id. §§ 2101a-2103. 47. Id. § 3320. 48. See id. § 1302(c); see also Patterson v. Dep't of Interior, 424 F.3d 1151, 1156 (Fed. Cir. 2005). 49. 5 C.F.R. § 302.401(a) (2013). 50. Id. 51. Id. 52. Id. § 302.401(b). 53. Id. § 302.101(c). 54. Id. 55. Id. 56. Id......