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MSPB Remands VEOA Claim for Adjudication

In David M. Pecard v. Department of Agriculture, 2010 MSPB 185, (September 8, 2010), the MSPB (Board) remanded the case to an administrative judge (AJ) and ordered that the parties present further evidence in order that the AJ could properly adjudicate Pecard’s Veterans Employment Opportunity Act (VEOA) appeal. The Board also affirmed the AJ’s conclusion that the Board lacked jurisdiction over the appellant’s claim of a negative suitability determination as well as his affirmative defense of harmful procedural error.

Pecard applied for the position of GS-07 Mounted Patrol Inspector (MPI) with the Department of Agriculture pursuant to a vacancy announcement for which he was interviewed and tentatively selected. Before he began work, however, he was informed that there was a potential problem with his veterans’ preference; and as he later learned from OPM, the agency had referred his application for a suitability investigation. As it turned out, the agency had performed an Internet search of Pecard which had revealed several instances of media that portrayed him negatively. Consequently, the agency withdrew its offer of employment on August 10, 2009. On August 13, 2009, OPM “sustained” the agency’s request to object or pass over the appellant based upon qualifications and suitability. However, on Form 62, an OPM form, which normally indicates OPM’s approval of such a passing over, an employee of the agency, rather than OPM, was the signatory. As a result, Pecard filed the instant appeal with the Board, claiming that: 1.) he was terminated during his probationary period; 2.) he was the subject of a negative suitability determination; and 3.) he involuntarily resigned and that there was a withdrawal of veterans’ preference status and 5 points.

In an amended summary of close of record conference, the AJ found that the only two issues in dispute were: 1.) whether the Board had jurisdiction over the appellant’s claim that he was subjected to an appealable suitability action; and 2.) whether the agency violated his veterans’ preference rights when it did not select him for the GS-07 MPI position. In its initial decision, the AJ found that the Board was without jurisdiction over the appellant’s claim of a negative suitability determination and his affirmative defense of harmful error. However, the AJ found that the Board did have jurisdiction over Pecard’s VEOA appeal. The AJ ruled that Pecard met the standard for Board jurisdiction over a VEOA claim as articulated in Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶9 (2003), namely that he had: 1.) exhausted his remedy with the Department of Labor; and 2.) made nonfrivolous allegations that (i) he was preference eligible within the meaning of VEOA, (ii) the actions took place on or after October 30, 1998, and (iii) the Agency violated his rights under a statute or regulation relating to veterans’ preference.

In reviewing Pecard’s petition for review, the Board affirmed the AJ’s decision that it lacked jurisdiction over the appellant’s negative suitability determination and his affirmative defense of harmful procedural error. However, the Board granted the petition as it determined that there were errors with the agency’s request to object or pass over Pecard based upon qualifications and suitability. Particularly, the Board took issue with the Form 62 request in the case which it argued could impact Pecard’s VEOA appeal.

Addressing the Form 62 used by the agency, the Board noted that a box was checked, indicating that OPM had sustained the action and removed the appellant from consideration. Troubling to the Board, however, was the fact that the “signature” of the OPM official was that of Steve Downs, an agency employee. The Board also noted that the appellant had made the argument that the agency had withdrawn its tentative offer of employment on August 10, 2009, actually one day before the agency had completed its Form 62 request, and that the agency’s request appeared to apply to a position based on a different vacancy announcement than the vacancy announcement at issue in the case. The Board went on to conclude that the AJ disregarded these issues in promulgating the initial decision.

In addition to the problems it cited concerning the AJ’s decision, the Board also found that the AJ failed to take into consideration 5 C.F.R. §332.406, which became effective on July 27, 2009. Specifically, the regulation delegated to agencies the authority to adjudicate objections to eligibles, which included pass over requests. See 5 C.F.R. §332.406(a). The Board pointed out that the record in Pecard’s case did not indicate whether the agency had delegated authority. Moreover, the Board found that it was also unclear from the record whether the ultimate selectee for the position was entitled to veterans’ preference. It asserted that if the selectee was not preference-eligible, then the agency was required to request a pass over under 5 U.S.C. § 3318. However, if the selectee was preference-eligible, then there would be no reason even to submit the Form 62 request.

The Board concluded that the record was unclear as to a number of issues necessary to adjudicate the appellant’s VEOA claim. As such, the Board vacated the portion of the initial decision that discusses the VEOA claim, and remanded the VEOA claim to the Dallas regional office, so that the AJ could take evidence and argument regarding the issues and impact of 5 C.F.R. § 332.406. The Board also affirmed the AJ’s denial of the appellant’s motion for sanctions.