                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 18

                             Docket No. CH-3330-14-0733-I-1

                               Donald Kenneth Goodin,
                                        Appellant,
                                             v.
                               Department of the Army,
                                         Agency.
                                       May 2, 2016

           Michael W. Macomber, Esquire, Albany, New York, for the appellant.

           Katherine E. Griffis, Fort Campbell, Kentucky, 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.

                                     BACKGROUND
¶2         The appellant, a 10-point preference-eligible veteran, applied for a
     competitive service GS-12 Clinical Social Worker position with the Blanchfield
     Army Community Hospital at Fort Campbell, Kentucky.           Initial Appeal File
     (IAF), Tab 1. The vacancy announcement for the position provided that, “[i]f
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     selected, official college or university transcripts must be submitted,” and “[i]f
     selected, candidate must provide documents for credentialing.”             IAF, Tab 10
     at 24. The agency created a certificate of eligibles with the appellant placed at
     the top, selected him for the position, made a tentative job offer to him, and sent
     him a letter informing him to provide documentation for the credentialing process
     at the hospital. Id. at 28-33, 40.
¶3         The agency then determined that the appellant did not meet the
     credentialing requirements “to work in the fully independent role that is
     expected,” because he did not have “current work experience as a Social
     Worker,” and had not worked in the field “for the last five years and has not done
     the type of work that was advertised (performing diagnostic assessments or
     therapy as a primary therapist) for this position in 16 years.” Id. at 48, 50. The
     agency filed a passover request 1 with the Office of Personnel Management
     (OPM).    Id.   OPM notified the agency that it had failed to establish that the
     appellant did not meet the minimum qualification requirements for the position,
     and denied the agency’s passover request.          Id. at 51-52.    OPM informed the
     agency that it could challenge the negative passover decision or consider/select
     the preference-eligible appellant for the job. Id. at 52.
¶4         During its further consideration of the appellant for the position, the
     agency notified him that he had failed to provide the required documentation for

     1
       Generally, in filling a vacancy in the competitive service, an agency must select from
     among the three top-ranked candidates referred for consideration, and it may not “pass
     over” a preference eligible to select a candidate not entitled to preference. 5 U.S.C.
     § 3318(a).      Under 5 U.S.C. § 3318(c)(1), however, an agency may select a
     nonpreference eligible rather than a preference eligible if the agency files written
     reasons with OPM for passing over the preference eligible and obtains OPM’s approval.
     Further, if the preference eligible is a veteran who has a service-connected disability of
     30 percent or more, he is entitled to notice of the proposed passover and an opportunity
     to respond to OPM. 5 U.S.C. § 3318(c)(2); see, e.g., Endres v. Department of Veterans
     Affairs, 107 M.S.P.R. 455, ¶ 10 (2007) (citing 5 U.S.C. § 3318(b)(2), which formerly
     contained the cited provision).
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     the credentialing process pursuant to Army regulations.             Id. at 53-54.    The
     appellant did not provide the required documentation, and the agency ultimately
     withdrew the tentative job offer due to his failure to provide a complete package
     for credentialing. 2 IAF, Tab 6 at 4‑5.
¶5         The appellant filed a complaint with the Department of Labor (DOL)
     alleging that the agency had violated his veterans’ preference rights. On July 3,
     2014, DOL notified the appellant that it had completed its investigation and
     determined that there had been no violation. IAF, Tab 1 at 13-14. DOL also
     notified the appellant that he could request corrective action with the Board
     within 15 days of the date of its letter. Id. at 14. The appellant filed his request
     on July 9, 2014. IAF, Tab 1. He did not request a hearing. Id. at 2.
¶6         Based on the written record, the administrative judge denied corrective
     action, finding that the appellant failed to present preponderant evidence that the
     agency violated a statutory or regulatory provision related to veterans’
     preference. IAF, Tab 20, Initial Decision (ID) at 13. He found that the appellant
     properly was afforded his veterans’ preference and placed at the top of the highly
     qualified category of applicants for the position.        Id.   He further found that,
     following OPM’s rejection of the passover request, the agency initiated the
     onboarding process for placing the appellant in the position. Id. Additionally, he
     found that the job announcement stated that the selected applicant would be
     required to obtain and maintain Basic Life Support certification, as well as
     provide official college or university transcripts and all documents needed for



     2
       The agency response file index indicates that this letter is at Tab 10, Subtab 4q. IAF,
     Tab 10 at 6. Subtab 4q is missing from the response file. However, the appellant
     submitted a copy of the letter notifying him that the agency had withdrawn the tentative
     job offer. IAF, Tab 6 at 4-5. Although it is not material to the adjudication of this
     appeal, we note that the agency sent this letter to the appellant on August 4, 2014, after
     he had filed his Board appeal.
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     credentialing. ID at 2. He found that the appellant admittedly did not provide the
     agency with the required documentation. ID at 13 (citing IAF, Tab 14 at 11).
¶7         In his petition for review, the appellant contends that the administrative
     judge erred in finding that the appellant’s veterans’ preference rights were not
     violated. Petition for Review (PFR) File, Tab 3. The appellant relies on the fact
     that OPM considered the same information that he submitted with his application
     to find that he possessed the specialized experience required for the GS-12 Social
     Worker position set forth in the vacancy announcement. Id. The appellant also
     asserts that, because the agency issued a vacancy announcement for the same
     position and then withdrew its tentative job offer to the appellant, it was
     obligated to again file a passover request with OPM. Id.

                                         ANALYSIS
¶8         To establish Board jurisdiction over a veterans’ preference appeal brought
     pursuant to 5 U.S.C. § 3330a(a)(1)(A), 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(s) at issue
     took place on or after the 1998 enactment date of VEOA, and (iii) the agency
     violated his rights under a statute or regulation relating to veterans’ preference.
     Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
     Because, as the administrative judge properly found, the appellant here has
     satisfied the jurisdictional elements of VEOA, ID at 9-12, on the merits he must
     show by preponderant evidence that the agency violated his rights under a statute
     or   regulation   relating   to   veterans’   preference,   Lis   v.   U.S.   Postal
     Service, 113 M.S.P.R. 415, ¶ 11 (2010).
¶9         As noted, OPM found that the agency could not pass over the appellant.
     IAF, Tab 10 at 51-52.    However, OPM’s passover decision did not relieve the
     agency from requiring the appellant to provide the mandated documentation for
     the credentialing process pursuant to Army regulations because, as set forth in the
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      vacancy announcement, it was a requirement imposed on all selectees for the GS‑
      12 Clinical Social Worker position.          IAF, Tab 10 at 24, 51-52.        The record
      reflects that, after it received the certificate of applicants eligible for the position
      at issue, the agency instructed the appellant to provide the necessary credentialing
      documents, but he did not provide all of the required documents. 3 Id. at 40, 53,
      66-70. After OPM denied the agency’s passover request, the agency resumed the
      onboarding process for the appellant and asked him to provide the credentialing
      documents he had not submitted previously.           Id. at 53-54, 68.     The appellant
      admitted during discovery that he did not provide the required documents. IAF,
      Tab 14 at 11. Instead, he wrote the agency asserting that, because OPM denied
      the agency’s passover request, he is entitled to an exception to the agency’s usual
      preappointment process for the Clinical Social Worker position.              IAF, Tab 10
      at 55, 68.
¶10          Having met its obligation to offer the appellant in this matter the Clinical
      Social Worker position that he sought, we discern no reason that the agency
      may not subject him to the same preappointment process as other employees.
      Accordingly, the administrative judge correctly found that, by giving the
      appellant his 10-point preference, which placed him ahead of all other candidates
      on the highly qualified list, and offering him the GS-12 Clinical Worker position,
      the agency afforded him his veterans’ preference rights. Further, by applying the
      generally applicable preappointment process, the agency did not violate the
      appellant’s veterans’ preference rights.            See Gingery v. Department of
      Defense, 121 M.S.P.R. 423, ¶¶ 2-3, 8 (2014) (finding, in a compliance proceeding


      3
        The agency credentialing coordinator declared under penalty of perjury that the
      appellant’s 2012 packet failed to include numerous documents, including two letters of
      reference, state license(s), diploma(s), transcripts, Basic Life Support certification, and
      continuing education certificates for the past 2 years. IAF, Tab 10 at 66-67. The
      appellant does not challenge that assertion.
                                                                                        6

      following a VEOA corrective action order, that the agency may require a
      successful VEOA litigant to undergo the same preappointment security clearance
      process    as     all   other     individuals);   Dow      v.   General    Services
      Administration, 117 M.S.P.R. 616, ¶¶ 2, 14 (2012) (finding, in a compliance
      proceeding following a VEOA corrective action order, that the agency may
      require the successful VEOA litigant to undergo the same suitability investigation
      as all other employees); see also Sink v. Department of Energy, 110 M.S.P.R.
      153, ¶ 19 (2008) (stating that, when the Board orders the cancelation of an
      adverse action, the appellant is not entitled to be placed in a better position than
      he would have enjoyed had the action not occurred). When the appellant was
      unwilling or unable to provide the required documentation for the credentialing
      process pursuant to Army regulations, the agency could withdraw the tentative
      offer of employment without again requesting passover authority from OPM.

                                             ORDER
¶11         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 U.S.
      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
                                                                                    7

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 U.S. 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
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.
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