                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                        2015 MSPB 12

                                Docket No. DE-3330-14-0057-I-1

                                      Troy S. Piirainen,
                                         Appellant,
                                              v.
                                  Department of the Army,
                                           Agency.
                                       February 11, 2015

           Troy S. Piirainen, Colorado Springs, Colorado, pro se.

           Benjamin J. Kinsley, Esquire, and Sarah L. Ahn, Fort Carson, Colorado, for
             the agency.

                                          BEFORE

                                Susan Tsui Grundmann, Chairman
                                Anne M. Wagner, Vice 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.
                                                                                      2

                                     BACKGROUND
¶2         The appellant is a GS-09 Training Instructor (TADSS) 1 for the agency’s
     Training Support Center at Fort Carson, Colorado.       Initial Appeal File (IAF),
     Tab 5 at 15.     He is a 10-point preference-eligible veteran with a 30%
     service-connected disability. IAF, Tab 1 at 5, Tab 5 at 15.
¶3         The appellant’s supervisors determined that the Training and Support
     Center would benefit from having a senior training instructor on staff. Hearing
     Compact Disc (HCD) (testimony of the appellant’s first- and second-line
     supervisors). The appellant’s second-line supervisor worked with the Fort Carson
     Civilian Personnel Advisory Center (CPAC) to develop a position description for
     the Senior TADSS Instructor job and to submit a request to the agency’s
     Installation Management Command (IMCOM) to hire for the position internally.
     IAF, Tab 5 at 18-22, Tab 22 at 10, 17, 23-28; HCD (testimony of Human
     Resources Specialist and the appellant’s second-line supervisor).
¶4         On August 30, 2012, while approval from IMCOM was still pending, the
     appellant’s second-line supervisor emailed both the appellant and his coworker,
     another 10-point preference-eligible 30% disabled GS-09 Training Instructor,
     informing them that the Senior TADSS Instructor vacancy was about to be
     announced and advising them to get their résumés in order. IAF, Tab 22 at 16,
     20-22; HCD (testimony of the appellant’s coworker). On September 6, 2012, the
     appellant emailed his second-line supervisor, stating that he was confused as to
     why he should get his résumé in order because he understood that the position
     would go to his coworker.     IAF, Tab 22 at 15-16. The supervisor responded,
     stating that the appellant was qualified for the position as well and that “we need
     to ensure you both have the opportunity to apply and advance.” Id. at 15.


     1
       We take official notice that “TADSS” is an acronym for “Training Aids, Devices,
     Simulators, and Simulations.” Fort Carson Training Support Center Homepage,
     http://www.carson.army.mil/tsc/index.html.
                                                                                           3

¶5         On September 11, 2012, the appellant’s coworker submitted his résumé and
     application to the second-line supervisor.       Id. at 17; HCD (testimony of the
     appellant’s coworker).     That same day, the appellant’s second-line supervisor
     forwarded the coworker’s materials to CPAC “[f]or the selection of the Sr
     TADSS Instructor.”      See IAF, Tab 22 at 17; see also HCD (testimony of the
     appellant’s second-line supervisor). The appellant never submitted his résumé,
     but instead sent his second-line supervisor emails on October 9 and 11, 2012,
     seeking advice on how to proceed. IAF, Tab 22 at 14-15; HCD (testimony of the
     appellant).   The agency did not respond to either of these inquiries.           In the
     meantime, IMCOM approved the position description and the internal hiring
     authority, and the agency extended a job offer to the appellant’s coworker via
     Veterans’ Readjustment Act (VRA) “name request,” which he accepted effective
     October 21, 2012. IAF, Tab 5 at 23-27, Tab 22 at 10-12; HCD (testimony of the
     appellant’s coworker and second-line supervisor).         On October 26, 2012, the
     appellant again emailed his second-line supervisor inquiring about the status of
     the Senior TADSS Instructor vacancy announcement. IAF, Tab 22 at 14. The
     second-line supervisor responded, stating that “[a]fter not getting any response
     from you for over one month, I presumed you were not interested. By the time
     you responded this action was locked in another direction.” Id.
¶6         The appellant filed a veterans’ preference complaint with the Department
     of Labor (DOL). IAF, Tab 1 at 7. After DOL notified him of its determination
     that there was no veterans’ preference violation, the appellant filed the instant
     Board appeal. 2 IAF, Tab 1. The administrative judge found that the appellant



     2
       As the administrative judge noted, the appellant’s September 11, 2013 DOL complaint
     was filed outside the 60-day statutory window for challenging the alleged October 2012
     veterans’ preference violation. IAF, Tab 1 at 7; IAF, Tab 29, Initial Decision (ID) at 4
     n.3; see 5 U.S.C. § 3330a(a)(2)(A). Nevertheless, because DOL found the complaint
     timely, the administrative judge correctly proceeded to the merits of the appellant’s
                                                                                       4

     established jurisdiction over the appeal, but after conducting a hearing, he denied
     his request for corrective action on the merits. ID at 1-2, 5, 8. Specifically, the
     administrative judge found that, when making an appointment under the VRA, an
     agency must consider all eligible candidates who are “on file,” who are qualified,
     and who reasonably could expect to be considered. ID at 6. He found that the
     appellant was not “on file” because he had not submitted his job application and
     that the agency therefore did not violate his veterans’ preference rights by failing
     to consider him. ID at 7.
¶7         The appellant has filed a petition for review, disputing the administrative
     judge’s finding that he was not “on file” with the agency. Petition for Review
     (PFR) File, Tab 1 at 4-6.      He also challenges the validity of the Office of
     Personnel Management’s (OPM) VRA rules, and argues that the agency
     committed disability discrimination by failing to accommodate his memory loss
     when it failed to remind him of the vacancy. Id. at 5-6. The agency has not filed
     a response.

                                        ANALYSIS
¶8         We find that the appellant’s claim arises under 5 U.S.C. § 3330a(a)(1)(A)
     rather than 5 U.S.C. § 3330a(a)(1)(B). The former section pertains to alleged
     violations of statutes and regulations relating to veterans’ preference, and the
     latter refers to alleged denials of the right to compete for a position
     under 5 U.S.C. § 3304(f)(1). Section 3304(f)(1) applies only where the agency
     has accepted applications from outside its own workforce, see Washburn v.
     Department of the Air Force, 119 M.S.P.R. 265, ¶ 6 (2013), and it is undisputed
     that the agency in this case did not do so.     In fact, the agency did not even
     advertise the position through a vacancy announcement.         HCD (testimony of


     claim. IAF, Tab 1 at 7; ID at 4 n.3; see Gingery v. Office of Personnel Management,
     119 M.S.P.R. 43, ¶ 19 (2012).
                                                                                    5

     Human Resources Specialist). Therefore, the appellant’s only possible avenue of
     redress is to prove that the agency violated a law or regulation relating to
     veterans’ preference.   See Isabella v. Department of State, 106 M.S.P.R. 333,
     ¶ 22 (2007) (to prevail on the merits of a VEOA claim under 5 U.S.C.
     § 3330a(a)(1)(A), an appellant must prove by preponderant evidence that the
     agency violated one or more of his statutory or regulatory veterans’ preference
     rights), aff’d on req. for recons., 109 M.S.P.R. 453 (2008). The gravamen of the
     appellant’s claim is that the agency should have applied competitive-examining
     procedures because both he and his coworker were preference-eligible veterans
     competing for the position. PFR File, Tab 1 at 5; IAF, Tab 20 at 4-5. The Board
     has found that laws governing the competitive-examining process relate to
     veterans’ preference for purposes of VEOA.             Dean v. Department of
     Agriculture, 99 M.S.P.R. 533, ¶¶ 16-19 (2005), aff’d on req. for recons., 104
     M.S.P.R. 1 (2006). We find that this is a viable claim and that the appellant
     would be entitled to relief if he established that the agency was required, but
     failed, to apply these procedures.
¶9         Nevertheless, we agree with the administrative judge that the agency was
     not required to apply competitive-examining procedures because the appellant
     was not “on file” with the agency for the Senior TADSS Instructor position. ID
     at 6-7.   Specifically, the agency chose to fill this position through its VRA
     appointing authority, as was its right.     See Phillips v. Department of the
     Navy, 110 M.S.P.R. 184, ¶ 6 (2008) (an agency has the discretion to fill a vacant
     position by any authorized method); see also 5 C.F.R. § 330.102 (same). OPM’s
     guidance provides as follows:
           Ordinarily, an agency may simply appoint any VRA eligible who
           meets the basic qualifications requirements for the position to be
           filled without having to announce the job or rate and rank applicants.
           However, as noted, Veterans’ preference applies in making
           appointments under the VRA authority. This means that if an agency
           has 2 or more VRA candidates and 1 or more is a preference eligible,
           the agency must apply Veterans’ preference. Furthermore, an agency
                                                                                      6

      must consider all VRA candidates on file who are qualified for the
      position and could reasonably expect to be considered for the
      opportunity; it cannot place VRA candidates in separate groups or
      consider them as separate sources in order to avoid applying
      preference or to reach a favored candidate. 3
U.S. Office of Personnel Management, Vet Guide, 4 http://www.opm.gov/policy-
data-oversight/veterans-services/vet-guide/.      With respect to being “on file,”
OPM’s guidance provides that:
      A 10-point preference eligible may file a job application with an
      agency at any time. If the applicant is qualified for positions filled
      from a register, the agency must add the candidate to the register,
      even if the register is closed to other applicants. If the applicant is
      qualified for positions filled through case examining, the agency will
      ensure that the applicant is referred on a certificate as soon as
      possible. If there is no immediate opening, the agency must retain
      the application in a special file for referral on certificates for future
      vacancies for up to three years.
Id. We agree with the administrative judge that a 10-point preference eligible’s
application is “on file” if he has submitted it for retention in this “special file” for
referral on certificates for future vacancies. ID at 7. Because the appellant did
not file his application with the agency, he was not “on file” for purposes of the
VRA, and the agency was not required to refer him for consideration for the
appointment.    Rather, it was entitled to appoint the appellant’s coworker by
“name request,” i.e., by simply appointing him without announcing the job or
rating and ranking applicants.




3
 It is undisputed that, as disabled veterans, both the appellant and his coworker were
VRA-eligible. See 38 U.S.C. §§ 4212(a)(3)(A)(i), 4214(a)(2)(B).
4
  While not entitled to the deference accorded to regulations, the Board has found the
Vet Guide to be entitled to some weight where it does not conflict with statute. See
Vassallo v. Department of Defense, 2015 MSPB 8, ¶ 4 (2015); see also Modeste v.
Department of Veterans Affairs, 121 M.S.P.R. 254, ¶ 11 (2014); Graves v. Department
of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 13-15 (2010).
                                                                                       7

¶10         The appellant disagrees with the administrative judge’s analysis based on
      the following provision of OPM’s guidance: “if an agency has 2 or more VRA
      candidates and 1 or more is a preference eligible, the agency must apply
      Veterans’ preference.”   PFR File, Tab 1 at 4.      He argues that he became a
      “candidate” for the position when the agency reached out to him to solicit his
      application and that he was “on file” with the agency as a disabled veteran as
      evidenced by the fact that management was aware that he was a disabled veteran.
      Id. We disagree because, as explained above, the term “on file” has a specific
      meaning, which requires that an individual actually file a job application with the
      agency. Under the appellant’s interpretation, the agency would be required to
      consider every qualified VRA-eligible on its employment rolls in every hiring
      action regardless of whether they had submitted applications.       This is not a
      reasonable interpretation of the provisions at issue. We find that an individual is
      only a “candidate” if he has taken the affirmative step to seek a position with the
      agency by filing an application.
¶11         Regarding the appellant’s argument that the Vet Guide provisions at issue
      are invalid because they require the agency to commit a prohibited personnel
      practice, we find that the appellant did not raise this argument below, and that he
      has not established a basis for us to consider it for the first time on review. PFR
      File, Tab 1 at 5; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271
      (1980) (the Board generally will not consider an argument raised for the first time
      in a petition for review absent a showing that it is based on new and material
      evidence not previously available despite the party’s due diligence).       In any
      event, the appellant’s argument appears to proceed from the premise that he was a
      candidate on file for the Senior TADSS Instructor position, which, as explained
      above, is not the case. PFR File, Tab 1 at 5-6.
¶12         Regarding the appellant’s argument that the agency committed disability
      discrimination by failing to accommodate his memory loss, the Board’s
      jurisdiction in a VEOA appeal is limited to determining whether the agency
                                                                                       8

      violated the appellant’s veterans’ preference rights. It does not extend to claims
      of discrimination. Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12
      (2001).   Accordingly, the Board lacks jurisdiction to consider the appellant’s
      disability discrimination claim in the context of this appeal.    See Lis v. U.S.
      Postal Service, 113 M.S.P.R. 415, ¶ 9 n.4 (2010).
¶13         Even assuming that the agency had given the appellant’s coworker a better
      opportunity or clearer instructions on how and when to file his application than it
      gave the appellant, such action would not constitute a veterans’ preference
      violation because the agency was not required to solicit the appellant’s
      application at all for this VRA appointment, but instead was permitted by law to
      bypass the competitive-examining process and select the appellant’s coworker
      without competition.     See 38 U.S.C. § 4214(b); see also Executive Order
      No. 11,521 § 1(a), 35 Fed. Reg. 5,311 (Mar. 26, 1970); 5 C.F.R. §§ 307.101,
      307.103; U.S. Office of Personnel Management, Vet Guide.

                                            ORDER
¶14         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)).

                        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.
                                                                                  9

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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services 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.
