                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 47

                            Docket No. DC-3330-14-1058-I-1

                              Michael A. Murphy Boston,
                                       Appellant,
                                            v.
                               Department of the Army,
                                         Agency.
                                       July 28, 2015

           Michael A. Murphy Boston, Troy, Virginia, pro se.

           Michael E. Hokenson, Fort Belvoir, Virginia, 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 reasons set forth below, we DENY
     the petition for review and AFFIRM the initial decision. However, we MODIFY
     the initial decision to find that the agency was not required to apply Title 5
     veterans’ preference rights and the appellant was not entitled to veterans’
     preference under the agency’s regulations.
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                                       BACKGROUND
¶2         The appellant, a 10-point preference-eligible veteran, was previously
     employed by the agency’s U.S. Army Intelligence and Security Command,
     National Ground Intelligence Center (NGIC) as a GG-0132-13 Intelligence
     Specialist until he resigned, effective April 7, 2012. Initial Appeal File (IAF),
     Tab 6 at 13, 23. In June or July 2014, he applied for a GG-0132-13 excepted
     service Intelligence Specialist position with NGIC. IAF, Tab 1 at 16, Tab 6 at 15.
     The vacancy announcement for the position indicated that multiple vacancies
     were available and that applications would be accepted from both internal and
     external candidates. IAF, Tab 6 at 15-16. According to the agency, it generated
     three certificates of eligible candidates: (1) status candidates (individuals with
     prior Federal service); (2) nonstatus candidates (individuals with no prior Federal
     service and no veterans’ preference eligibility); and (3) veterans’ preference
     eligible candidates. IAF, Tab 6 at 5 & nn.2, 4; id. at 34-50. The appellant was
     placed on the status candidate list and referred to the selecting official, but was
     not selected for any of the positions. IAF, Tab 6 at 5, 35. The agency hired two
     other individuals from the status candidate list and one individual from the
     veterans’ preference list. Id. at 5, 35-36, 46.
¶3         After exhausting his administrative remedies before the U.S. Department of
     Labor (DOL), the appellant filed a Board appeal alleging that the agency’s
     decision not to select him violated his veterans’ preference rights. IAF, Tab 1
     at 5, 17. In response, the agency asserted that the appellant was not entitled to
     veterans’ preference and that it had properly placed him only on the status
     candidate list in accordance with Department of Defense Instruction (DoDI)
     1400.25, which states that veterans’ preference does not apply to prior Federal
     employees.    IAF, Tab 6 at 5; DoDI No. 1400.25, Volume 2005, Enclosure 2,
     ¶ 15b-c (Mar. 3, 2012), available at http://www.dtic.mil/whs/directives/corres/pdf
     /1400.25-V2005.pdf.     The agency further asserted that the Title 5 provisions
                                                                                           3

     relating to veterans’ preference rights did not apply because the positions were
     filled pursuant to 10 U.S.C. § 1601. IAF, Tab 6 at 7-8.
¶4         The administrative judge found that the Board has VEOA jurisdiction over
     the appeal, but that the appellant was not entitled to his requested hearing
     because, based on the written record, there were no genuine issues of material
     fact and the appellant failed to show that the agency violated his veterans’
     preference rights. IAF, Tab 8, Initial Decision (ID). In reaching his decision, the
     administrative judge found that, under DoDI 1400.25, the appellant, an applicant
     with prior Federal service, was properly placed on the status candidate list and
     was not entitled to veterans’ preference consideration.            ID at 4-5.      The
     administrative judge further found that the agency made selections from the
     status list and that the agency’s decision to fill the positions through merit
     promotion procedures rather than through the competitive process did not violate
     the appellant’s rights under VEOA because an individual is not entitled to
     veterans’ preference points under merit promotion procedures. ID at 5-6; Dean v.
     Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008).
¶5         The appellant has filed a petition for review 1 in which he asserts that the
     initial decision and DoDI 1400.25 are inconsistent with Title 5 and Title 10
     regulations, the agency improperly failed to respond to his discovery requests,
     and the administrative judge “permitted leniency on the part of the agency” by
     allowing the agency additional time to file its response. 2 Petition for Review




     1
       The appellant has filed additional copies of his petition for review. Petition for
     Review (PFR) File, Tab 3. For the sake of clarity, we cite only to the initially filed
     petition.
     2
       To the extent the appellant is alleging that the administrative judge was biased in
     favor of the agency, we find that he has failed to set forth any evidence or argument to
     overcome the presumption of honesty and integrity that accompanies administrative
     adjudicators. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 46 (2014).
                                                                                              4

     (PFR) File, Tab 1 at 3-4. The agency has filed a response in opposition, and the
     appellant has filed a reply. 3 PFR File, Tabs 2, 5.

                                           ANALYSIS
¶6          To establish jurisdiction over a VEOA appeal alleging a violation of
     veterans’ preference rights, an appellant must (1) show that he exhausted his
     remedy with DOL; and (2) make nonfrivolous allegations that:                  (i) he is a
     preference eligible within the meaning of VEOA, (ii) the action at issue took
     place on or after the date that VEOA was enacted, and (iii) the agency violated
     his rights under a statute or regulation relating to veterans’ preference. 5 U.S.C.
     § 3330a(a)(1)(A); Jarrard v. Social Security Administration, 115 M.S.P.R. 397,
     ¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed. Cir. 2012).           As applicable here, to be
     entitled to relief under VEOA, the appellant must prove by preponderant evidence
     that the agency violated one or more of his statutory or regulatory veterans’
     preference rights in its selection process.       Graves v. Department of Veterans
     Affairs, 114 M.S.P.R. 209, ¶ 10 (2010).
¶7          The Board has the authority to decide the merits of a VEOA appeal without
     a hearing if there is no genuine dispute of material fact and one party must
     prevail as a matter of law.            Haasz v. Department of Veterans Affairs,


     3
       After the record on review closed on April 5, 2014, the appellant filed an untimely
     reply on April 10, 2015, without showing that it was based on evidence that was not
     readily available prior to the close of the record on review. PFR File, Tabs 4-6; see
     5 C.F.R. § 1201.114(k). Notwithstanding this procedural defect, we find unavailing the
     appellant’s arguments therein that 10 U.S.C. § 1601 is inapplicable to the Intelligence
     Specialist positions and that the provisions of DoDI 1400.25 are contradictory and
     ambiguous. PFR File, Tab 5 at 4-6, 8. Further, under 5 C.F.R. § 1201.114(a)(4), a
     reply is limited to the factual and legal issues raised by another party in the response to
     the petition for review and may not raise new allegations of error. Thus, we decline to
     consider the appellant’s new argument that his veterans’ preference rights were violated
     because other current and former Defense Civilian Intelligence Personnel System
     employees were included on the veterans’ preference eligible list. PFR File, Tab 5
     at 7-8.
                                                                                          5

     108 M.S.P.R. 349, ¶ 9 (2008); see 5 C.F.R. § 1208.23(b).            In this case, the
     administrative judge properly found that there is no genuine dispute of material
     fact and that, although the appellant established jurisdiction over his appeal, the
     record showed that the agency did not violate his veterans’ preference rights. See
     ID. However, the administrative judge improperly found that the agency only
     made selections from the status list and applied Title 5 standards relating to
     veterans’ preference rights when the agency filled the positions pursuant to its
     Title 10 hiring authority, under which it was not required to follow Title 5
     veterans’ preference rules. 4   See ID at 5-6.     Therefore, we modify the initial
     decision to find that the agency was not required to apply Title 5 veterans’
     preference rights and that the appellant was not entitled to veterans’ preference
     rights under the agency’s regulations, which are reasonable and consistent with
     the requirement in 10 U.S.C. § 1601(a)(2) that it consider “the availability of
     preference eligibles for appointment.”
¶8         The Intelligence Specialist positions to which the appellant applied are in
     the Defense Civilian Intelligence Personnel System (DCIPS) and were filled
     under the agency’s Title 10 hiring authority.        See IAF, Tab 6 at 15; DoDI
     No. 1400.25, Volume 2005, Enclosure 1, Enclosure 2, ¶ 2. Pursuant to 10 U.S.C.
     § 1601, the Secretary of Defense may “establish, as positions in the excepted
     service, such defense intelligence positions in the Department of Defense as the
     Secretary determines necessary to carry out the intelligence functions of the
     Department” and “appoint individuals to those positions (after taking into
     consideration the availability of preference eligibles for appointment to those
     positions).”   10 U.S.C. § 1601(a)(1)-(2).     The Secretary’s authority to do so

     4
       Further, the administrative judge erred in finding that merit promotion procedures
     applied to the agency’s selections from the status list. These procedures generally are
     limited to selecting among internal candidates and thus would not apply here. See
     Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, ¶ 11 (2006), aff’d, 505 F.3d
     1380 (Fed. Cir. 2007).
                                                                                         6

      “applies without regard to the provisions of any other law relating to the
      appointment, number, classification, or compensation of employees.” 10 U.S.C.
      § 1601(b).
¶9          Because Title 10 appointments are made “without regard to the provisions
      of any other law relating to the appointment . . . of employees,” the Board has
      held that Title 5 veterans’ preference rules do not apply to positions filled
      pursuant to 10 U.S.C. § 1601. See Wilks v. Department of the Army, 91 M.S.P.R.
      70, ¶¶ 8-9 (2002); see also Montee v. Department of the Army, 110 M.S.P.R. 271,
      ¶ 13 (2008) (stating that 10 U.S.C. § 1601(b) arguably exempts military
      departments that are filling DCIPS positions from the requirements of 5 U.S.C.
      § 3304); Young v. Federal Mediation & Conciliation Service, 93 M.S.P.R. 99,
      ¶¶ 8-9 (2002) (appointments made “without regard to the provisions of the civil
      service laws” are not subject to the provisions of Title 5, including those relating
      to veterans’ preference), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Accordingly,
      we find that the agency was not required to apply Title 5 veterans’ preference
      rights during the selection process for the Intelligence Specialist positions.
¶10         Though not required to apply Title 5 veterans’ preference rights, the
      agency was required to consider the “availability of preference eligibles for
      appointment” to the positions under 10 U.S.C. § 1601(a)(2). The statute’s text
      and legislative history do not define or clarify what Congress meant by requiring
      appointments to be made “after taking into consideration the availability of
      preference eligibles.” National Defense Authorization Act for Fiscal Year 1997
      (NDAA), Pub. L. No. 104-201, § 1632, 110 Stat. 2422, 2746 (1996).                The
      relevant language was first proposed by the Senate. See NDAA, S. 1745, 104th
      Cong. § 1132 (1996). It was subsequently adopted into the corresponding bill
      from the U.S. House of Representatives in conference. 5              See H.R. Rep.

      5
        A prior version of the statute, which was repealed, did not contain a reference to
      veterans’ preference. See 10 U.S.C. § 1590 (1994) (providing the Secretary of Defense
                                                                                         7

      No. 104-724, at 825-26 (1996) (Conf. Rep.).       No reports from either the U.S.
      House of Representatives or the U.S. Senate discuss the meaning of the language.
      See H.R. Rep. No. 104-724, at 336, 825-26 (providing the text for, and generally
      discussing, amendments relating to the authority of the Secretary of Defense to
      manage civilian personnel in the Department of Defense intelligence community);
      H. Comm. on National Security, H.R. Rep. No. 104-563 (1996) (containing no
      discussion of the relevant language); S. Select Comm. on Intelligence, S. Rep.
      No. 104-278 (1996) (same); S. Rep. No. 104-267 (1996) (same).
¶11         Under 10 U.S.C. § 1613, Congress authorized the Secretary of Defense to
      prescribe regulations to carry out section 1601. DoDI 1400.25, issued pursuant to
      10 U.S.C. § 1613, addresses veterans’ preference rights and provides that the
      determination and application of veterans’ preference is not required when
      considering former DCIPS employees or candidates with prior Federal
      competitive or excepted service who have completed a probationary or trial
      period and have not been separated for cause. DoDI No. 1400.25, Volume 2005,
      ¶ 8, Enclosure 2, ¶ 15b-c.     DoDI 1400.25 further provides that, when filling
      positions with external applicants new to Federal service, preference-eligible
      veterans shall be granted preference in selection over nonpreference-eligible
      candidates with substantially equal qualifications. Id., Enclosure 2, ¶ 15a. We
      find that DoDI 1400.25 is reasonable and consistent with the statute to the extent
      it requires the application of veterans’ preference as a tie-breaker for DCIPS
      external new employee hiring. See Hawkins v. United States, 469 F.3d 993, 1000
      (Fed. Cir. 2006) (where a statute is silent or ambiguous on a specific issue, the
      Board must sustain the agency’s interpretation if it is “based on a permissible
      construction” of the statute) (citing Chevron, U.S.A., Inc. v. Natural Resources

      with the authority to appoint employees to carry out military department intelligence
      functions “without regard to the provisions of any other law relating to the number,
      classification, or compensation of employees”); NDAA, § 1633(a), 110 Stat. at 2571
      (repealing this section).
                                                                                      8

      Defense Council, Inc., 467 U.S. 837, 842-43 & n.9 (1984)). Thus, we agree with
      the administrative judge that, applying DoDI 1400.25, the appellant, a former
      DCIPS employee, was not entitled to veterans’ preference rights.
¶12         The appellant also argues on review that the “[r]esponse to interrogatories
      was never addressed.”    PFR File, Tab 1 at 3.      The record reflects that the
      appellant filed three pleadings below that could be construed as discovery
      requests. IAF, Tab 1 at 20-21, Tab 3 at 4, Tab 7 at 4-5. However, discovery
      requests and responses are not to be filed in the first instance with the Board.
      5 C.F.R. § 1201.71. The administrative judge properly advised the appellant of
      the Board’s regulations regarding discovery and notified him that, unless he was
      filing a motion to compel, he could not submit discovery requests and responses
      to the Board. IAF, Tab 2 at 4-5. Thus, to the extent that the appellant contends
      that the administrative judge committed any error as to his discovery requests, we
      disagree because the appellant failed to file a motion to compel below.       See
      Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005) (an
      appellant’s failure to file a motion to compel prior to the close of record below
      precludes him from raising a discovery dispute for the first time on petition for
      review), aff’d, 167 F. App’x 217 (2006); see also 5 C.F.R. § 1201.73(c)
      (indicating the requirements for a motion to compel). Even if the appellant had
      filed a motion to compel, he has not shown how the information he sought to
      discover would have changed the result in his appeal, and thus he does not state a
      basis for granting review.     See Russell v. Equal Employment Opportunity
      Commission, 110 M.S.P.R. 557, ¶ 15 (2009).

                                          ORDER
¶13         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).
                                                                                  9

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
         You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

         The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
                                                                               10

provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


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