                            UNITED STATES OF AMERICA
                         MERIT SYSTEMS PROTECTION BOARD
                                         2016 MSPB 8
                               Docket No. DC-3330-14-0993-I-1

                                Thomas V. Montgomery, III,
                                          Appellant,
                                               v.
                       Department of Health and Human Services,
                                           Agency.
                                       February 5, 2016

              Thomas V. Montgomery, III, Centreville, Virginia, pro se.

              Kathleen Mee, Washington, D.C., for the agency.

              Randolph Gadson, Bethesda, Maryland, for the agency.


                                           BEFORE

                               Susan Tsui Grundmann, Chairman
                                  Mark A. Robbins, Member



                                   OPINION AND 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). For the following reasons, we GRANT the
     petition for review, VACATE the initial decision, and REMAND the appeal to the
     regional office for further adjudication in accordance with this Opinion and
     Order.
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                                       BACKGROUND
¶2         The appellant alleges that he was denied the right to compete when the
     agency transferred an employee from outside its workforce into a GS-1701-15
     Supervisory Organizational Development Specialist position in the competitive
     service without advertising the vacancy. Initial Appeal File (IAF), Tab 1 at 4-5.
     The administrative judge notified the appellant that the Board may not have
     jurisdiction over his appeal, explained the jurisdictional requirements under
     VEOA, and ordered the appellant to file evidence and argument establishing the
     Board’s jurisdiction. IAF, Tab 3 at 3. In response, the appellant filed evidence
     establishing that he is a preference-eligible veteran and argued that the agency
     violated his right to a fair and equal opportunity to compete for a position it filled
     with a candidate from outside its workforce without advertising the vacancy.
     IAF, Tab 4. The appellant also filed a letter from the Department of Labor (DOL)
     closing its investigation into his complaint.     IAF, Tab 6.     The administrative
     judge issued a decision on the merits, without holding a hearing, denying the
     appellant’s request for corrective action. IAF, Tab 12, Initial Decision (ID) at 4.
     The administrative judge found that the appellant had not shown that his right to
     compete was denied because the agency had discretion to fill the vacancy by any
     authorized method, and the appellant had not shown that he was qualified for the
     position. ID at 3-4.
¶3         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 2. He argues that the administrative judge was biased. Id. at 4. He also
     argues that the administrative judge erred in finding that he was not qualified for
     the position. PFR File, Tab 3. After filing his petition for review, the appellant
     filed two additional pleadings.    PFR File, Tabs 2-3.      The agency has filed a
     response in opposition to the petition for review. PFR File, Tab 6. The appellant
     has filed a reply to the agency’s response. PFR File, Tabs 7-9.
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                                           ANALYSIS
     The Board has jurisdiction over the appellant’s claim that the agency denied his
     right to compete under 5 U.S.C. § 3304(f)(1).
¶4         The appellant argues that the agency’s failure to announce the vacancy
     denied him his right to compete for the position. PFR File, Tab 1 at 6. As part of
     VEOA, Congress amended 5 U.S.C. § 3304 to add the following:
            Preference eligibles or veterans who have been separated from the
            armed forces under honorable conditions after 3 years or more of
            active service may not be denied the opportunity to compete for
            vacant positions for which the agency making the announcement will
            accept applications from individuals outside its own workforce under
            merit promotion procedures.
     5 U.S.C. § 3304(f)(1). Affected individuals may seek administrative redress for a
     violation of their rights under 5 U.S.C. § 3304(f)(1) by filing a complaint with the
     Secretary of Labor and, after exhaustion of that process, filing a timely appeal
     with the Board. Gingery v. Department of Veterans Affairs, 114 M.S.P.R. 175,
     ¶ 6 (2010); Walker v. Department of the Army, 104 M.S.P.R. 96, ¶¶ 12-16 (2006);
     see 5 U.S.C. § 3330a(a)(1), (d). 1
¶5         The appellant has made a nonfrivolous allegation that he is both a
     preference eligible and a veteran who was separated from the armed forces under
     honorable conditions after 3 years of active service. IAF, Tab 4 at 5-7. The
     appellant also has presented evidence that he has exhausted his remedy before
     DOL regarding his claim. IAF, Tab 6. It is undisputed that the agency filled a
     vacant position in the competitive service with an applicant from outside its
     workforce without advertising the vacancy and that the selection at issue took
     place in 2014, after the enactment of VEOA and the Veterans Benefits
     Improvement Act of 2004. IAF, Tab 8 at 7; PFR File, Tab 6 at 4. An agency may

     1
       At first, this redress right was available only to preference eligibles, but the Veterans
     Benefits Improvement Act of 2004 granted affected veterans the right to seek redress
     for violations of the right to compete under 5 U.S.C. § 3304(f)(1).                 Walker,
     104 M.S.P.R. 96, ¶ 14; see 5 U.S.C. § 3330a(a)(1)(B).
                                                                                       4

     violate section 3304(f)(1) when, for example, it deprives a preference eligible or
     covered veteran the right to apply by filling a position without required public
     notice. Dean v. Office of Personnel Management, 115 M.S.P.R. 157, ¶ 28 (2010).
     Regulations of the Office of Personnel Management (OPM) require that “[a]n
     agency must announce all vacancies it intends to fill from outside its permanent
     competitive service workforce.” 5 C.F.R. § 330.706(c); see 5 C.F.R. §§ 330.103,
     335.106. Based on the foregoing, we find that the Board has jurisdiction over the
     appellant’s    right-to-compete   claim   under   5 U.S.C.   § 3330a(a)(1)(A) 2 and
     (a)(1)(B).    See Styslinger v. Department of the Army, 105 M.S.P.R. 223, ¶ 31
     (2007).

     The appeal must be remanded because there are genuine issues of material fact
     that cannot be resolved on the current record.
¶6         As stated in the initial decision, agencies are permitted to fill vacancies by
     any authorized method. ID at 3; Shapley v. Department of Homeland Security,
     110 M.S.P.R. 31, ¶ 13 (2008). However, the Board will review the method used
     by an agency to fill a vacancy to determine if it is authorized when the use of an
     unauthorized method could have denied covered individuals the right to compete.
     See Dean, 115 M.S.P.R. 157, ¶ 28; see also Dean v. Department of Agriculture,
     104 M.S.P.R. 1, ¶¶ 17-21 (2006) (examining whether the agency was authorized
     to fill a vacancy using the Outstanding Scholar Program). We find that there is
     insufficient evidence in the record to determine if the agency denied the appellant
     the right to compete in filling the vacancy at issue in this appeal.
¶7         The agency argues that, because it filled the vacancy via a transfer pursuant
     to 5 C.F.R. § 315.501, “outside” of merit promotion procedures, it was not
     required to give covered individuals the right to compete pursuant to 5 U.S.C.



     2
       The Board has found that 5 U.S.C. § 3304(f)(1) is a statute relating to veterans’
     preference for which VEOA provides a remedy. Walker, 104 M.S.P.R. 96, ¶ 16.
                                                                                          5

     § 3304(f)(1). 3   IAF, Tab 8 at 5-6; PFR File, Tab 6 at 10-11.           However, in
     deference to OPM’s regulations and guidance, the Board has held that the right to
     compete under 5 U.S.C. § 3304(f)(1) is not limited merely to situations in which
     an agency elects to use merit promotion procedures, but rather is triggered when
     an agency accepts applications from individuals outside its own workforce.
     Dean, 115 M.S.P.R. 157, ¶ 28 & n.11; Brandt v. Department of the Air Force,
     103 M.S.P.R. 671, ¶¶ 10-15 (2006); see 5 C.F.R. § 335.106. The agency cites
     Villamarzo v. Environmental Protection Agency, 92 M.S.P.R. 159 (2002), in
     support of its theory that transferring a Federal employee without using merit
     promotion procedures does not implicate the right to compete in 5 U.S.C.
     § 3304(f)(1). PFR File, Tab 6 at 10. In Villamarzo, however, the agency filled a
     vacancy with an employee from within the agency’s own workforce. 92 M.S.P.R.
     159, ¶¶ 2, 6. Here, the agency filled the position with an applicant from outside
     its workforce, and based on the evidence and argument before us, it does not
     appear that the agency’s invocation of its transfer authority under 5 C.F.R.
     § 315.501 negates the statutory right of a preference eligible or covered veteran to
     compete under 5 U.S.C. § 3304(f)(1). See Dean, 115 M.S.P.R. 157, ¶ 28 & n.11;
     Brandt, 103 M.S.P.R. 671, ¶¶ 10-15.
¶8         The agency alternatively maintains that, even if the appellant had a right to
     compete under section 3304(f)(1), his right was not violated because it relied on
     an internal standard operating procedure to “share” a selection certificate for
     another advertised vacancy for an allegedly comparable position. PFR File, Tab 6
     at 5, 10-11.      Specifically, the agency asserts that it posted a vacancy

     3
       There are two types of selection procedures generally used to fill vacancies in the
     competitive service: (1) the open “competitive examination” process generally used for
     candidates seeking to join the competitive service; and (2) the “merit promotion”
     process used when a position is filled from within an agency’s workforce or by an
     applicant from outside the agency who has “status” in the competitive service such as a
     competitive service employee at another agency. Joseph v. Federal Trade Commission,
     505 F.3d 1380, 1381-82 (Fed. Cir. 2007).
                                                                                         6

      announcement     for   the position   of   Director,   Division   of   Learning   and
      Organizational Development, GS-1701-15, and that the appellant applied for that
      position but was not selected.     Id. at 11.   The agency claims that, using its
      Standard Operating Procedure on Shared Certificates, it determined that another
      individual who had applied for the Director position was highly qualified for the
      allegedly similar position of Supervisory Organizational Development Specialist,
      GS-1701-15.    Id.     The agency then transferred that individual from another
      Federal agency into the Supervisory Organizational Development Specialist
      position without specifically announcing that vacancy. Id.; IAF, Tab 8 at 7.
¶9          An agency’s internal policy may not override applicable statutes, including
      5 U.S.C. § 3304(f)(1). Gingery, 114 M.S.P.R. 175, ¶ 10; Boctor v. U.S. Postal
      Service, 110 M.S.P.R. 580, ¶ 9 (2009).      The record must be developed further
      regarding the agency’s use of its standard operating procedure to fill the vacancy
      at issue before a determination can be made as to whether the agency’s process
      afforded the appellant his right to compete.      The agency’s standard operating
      procedure states that shared certificates are appropriate to fill regularly recurring
      vacancies that “match” in job title, series, grade, geographical location,
      specialized experience requirements, job knowledge, skills, and abilities, as well
      as selective factors. PFR File, Tab 6 at 31-32. The agency’s standard operating
      procedure also requires that an open selection certificate be used within a 90-day
      period of when originally issued. Id. at 32.
¶10         However, the record must be developed regarding whether the agency
      appropriately followed its own procedures here. For instance, the record contains
      insufficient evidence concerning the Supervisory Organizational Development
      Specialist position to determine if it is a regularly recurring vacancy that
      “matched” the Director, Division of Learning and Organizational Development
      position in the ways specified by the standard operating procedure. There is also
      insufficient evidence to determine if the agency complied with other relevant
                                                                                         7

      provisions in its standard operating procedures, such as the time limit for using a
      shared certificate.
¶11         The record also must be fully developed regarding what consideration, if
      any, was given to candidates for the position other than the selectee.           The
      appellant was on the selection certificate for the Director, Division of Learning
      and Organizational Development position, but it is unclear what, if any,
      information about him was provided to the selecting official for this position. If,
      for instance, as the appellant alleges, the selectee was preselected and none of the
      other applicants for the Director, Division of Learning and Organizational
      Development position were considered for the Supervisory Organizational
      Development Specialist position, he may have been denied the right to compete.
      The Board has found that a veteran is denied his right to compete under 5 U.S.C.
      § 3304(f)(1) when an agency accepts his application and determines that he is
      qualified, but the selecting official does not give his application any further
      consideration.   See, e.g., Shapley, 110 M.S.P.R. 31, ¶¶ 9-17 (holding that the
      appellant was denied the right to compete when he was found qualified for a
      position and placed on the certificate of eligibles, but the certificate was not
      provided to the selecting official for consideration).

      The administrative judge erred in finding that the appellant was not qualified for
      the position.
¶12         The administrative judge further found that the appellant was not qualified
      for the GS-15 position at issue in this appeal because he was in a GS-13 position,
      classified in a different series, at the time of the selection.      ID at 4.    The
      appellant’s grade and the series of his position at the time of the selection are not
      dispositive as to whether he was qualified. See 5 C.F.R. §§ 300.604, 300.605.
      The agency determined that the appellant was qualified for the GS-15 Director,
      Division of Learning and Organizational Development position, and included him
      on the selection certificate for that position, which the agency claims to have used
      to make the selection for the Supervisory Organizational Development Specialist
                                                                                         8

      position. PFR File, Tab 6 at 4-5, 22-29. Thus, it appears the agency found the
      appellant qualified at the GS-15 level.       The appellant has filed additional
      evidence on review regarding his qualifications. PFR File, Tab 3. On remand,
      the administrative judge should reconsider her finding in light of this evidence,
      and any additional evidence introduced by the parties on this issue.

      The parties must be given an opportunity to further develop the record.
¶13         The Board may decide the merits of an appeal alleging the violation of
      rights under VEOA without holding a hearing where there is no genuine dispute
      of material fact and one party must prevail as a matter of law. Waters-Lindo v.
      Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). As discussed above, based
      on the current record, there remain genuine disputed issues of material fact.
      Therefore, issuing a decision without a hearing, if the appellant wished to have
      one, was not appropriate in this case. Additionally, because the administrative
      judge found that the Board had jurisdiction under VEOA, ID at 2, and declined to
      hold a hearing as she indicated she would in the acknowledgment order, IAF, Tab
      3 at 2, she was responsible for notifying the parties that there would be no
      hearing, for setting a date on which the record would close, and for affording the
      parties the opportunity to submit evidence regarding the merits of the appeal
      before the record closed, Jarrard v. Department of Justice, 113 M.S.P.R. 502,
      ¶ 11 (2010). The administrative judge did not give the parties such notice. This
      error was prejudicial to the appellant because there remain genuine disputes of
      material facts that cannot be resolved on the current record. Id. This appeal must
      be remanded for the record to be fully developed regarding the material facts. 4



      4
        The appellant also alleges that the administrative judge was biased in favor of the
      agency. PFR File, Tab 2 at 4. In making a claim of bias or prejudice against an
      administrative judge, a party must overcome the presumption of honesty and integrity
      that accompanies administrative adjudicators. Oliver v. Department of Transportation,
      1 M.S.P.R. 382, 386 (1980). Although we are remanding this appeal for further
                                                                                             9

      See, e.g., Phillips v. Department of the Navy, 110 M.S.P.R. 184, ¶ 12 (2008)
      (remanding, in part, because the evidentiary record was not sufficiently developed
      to determine whether a covered individual was given the right to compete).

                                             ORDER
¶14         For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.




      adjudication, we find nothing in the record to support the appellant’s assertion that the
      administrative judge was biased in her original adjudication.
