                     UNITED STATES OF AMERICA
                  MERIT SYSTEMS PROTECTION BOARD


PHILIP M. MODESTE,                              DOCKET NUMBER
              Appellant,                        AT-3330-13-0146-X-1

             v.

DEPARTMENT OF VETERANS                          DATE: May 14, 2015
  AFFAIRS,
            Agency.



           THIS FINAL O RDER IS NONPRECEDENTIAL *

      Philip M. Modeste, Minneola, Florida, pro se.

      Dana C. Heck, Esquire, Saint Petersburg, Florida, for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member


                                  FINAL ORDER

      This compliance proceeding was initiated by the appellant’s July 29, 2014
petition for enforcement of the Board’s June 19, 2014 order. On September 15,
2014, the administrative judge issued an initial decision recommending that the
Board find the agency not in compliance with the order, and the agency’s


*
   A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                 2

noncompliance was referred to the Board for consideration. See MSPB Docket
No. AT-3330-13-0146-C-1, Compliance File, Tab 7, Compliance Initial Decision
(CID).   After fully considering the filings in this appeal, and based on the
following points and authorities, we now find the agency in compliance with the
Board’s order.   Accordingly, we hereby DISMISS the appellant’s petition for
enforcement, based on our finding that the agency is in compliance. 5 C.F.R.
§ 1201.114(e), (g).
      In the September 15, 2014 initial decision, the administrative judge found
that the agency did not show that it engaged in a real reconstructed hiring process
because it did not show that it first removed the previous selectee from the
position prior to commencing the process.          CID 3-4.      As a result, the
administrative judge ordered the agency to remove the original selectee from the
position, initiate a new and real reconstructed hiring process, and provide a
narrative explanation of the steps it took to engage in the newly reconstructed
process. CID at 4.
      On October 24, 2014, the agency submitted its “Statement Regarding
Compliance” to the Board.       See MSPB Docket No. AT-3330-13-0146-X-1,
Compliance Referral File (CRF), Tab 2.           In its submission, the agency
demonstrated that it commenced a new reconstructed hiring process on
September 21, 2014.      See id. at 1.      The agency’s submission included
documentary evidence and affidavits showing that the agency first removed the
original selectee from the position, and then proceeded to engage in a new
reconstructed selection process for the position that included consideration of all
qualified applicants under the Veterans Employment Opportunities Act (VEOA)
who were not previously considered. CRF, Tab 2. The agency did not, however,
provide any evidence showing that the reconstructed hiring process was the same
process used as during the original hiring process.        Id.    Accordingly, on
January 22, 2015, the Board ordered the agency to submit additional evidence
detailing the original hiring process for the position, along with a narrative
                                                                                 3

explanation explaining any variance between the original hiring process and the
reconstructed hiring process. CRF, Tab 4 at 2.
      On February 10, 2015, the agency submitted its “Statement in Response to
Board’s Order.” CRF, Tab 5. In its statement, the agency admitted that during
the original hiring process, it did conduct interviews of the top six candidates,
and did not do so during the reconstructed process. See id. at 4-5. The agency
admitted the same as to reference checks. Id. But the agency explained that it
did not conduct new interviews or reference checks during the reconstructed
process because the appellant did not rank in the top six candidates during the
reconstructed process. Id. As a result, even though the agency did not conduct
new interviews, the appellant’s application was still considered and ranked along
with all other qualified applicants. CRF, Tab 2 at 1-3. Therefore, the agency has
now established that the appellant was allowed to compete for the position, as
required by VEOA. Accordingly, we hereby find the agency in compliance with
the Board’s June 19, 2014 order.
      Regarding the appellant’s request for damages based on his assertion that
the agency did not prove he was not the best qualified candidate for the position,
we DENY the request.      When the Board finds a violation of VEOA, if it is
uncertain whether the appellant would be selected for the position in a
reconstructed hiring process, the agency is not required to award the position to
the appellant.   See 5 U.S.C. § 3330c(a); see also Gingery v. Department of
Veterans Affairs, 480 F. App’x 588, 591-92 (Fed. Cir. 2012). It is only required
to reconstruct the hiring process in a manner that allows the appellant, along with
any other qualified veterans or preference eligibles, to properly compete for the
position. Id. Here, the agency met its burden by demonstrating that it properly
reconstructed the hiring process; it does not also need to prove that the appellant
was not most qualified for the position.
                                                                                  4



      Therefore, the Board finds that the agency is in compliance and
DISMISSES the petition for enforcement. This is the final decision of the Merit
Systems Protection Board in this compliance proceeding. Title 5 of the Code of
Federal Regulations, section 1201.183(b) (5 C.F.R. § 1201.183(b)).

                  NOTICE TO THE APPELLANT REGARDING
                        YOUR RIGHT TO REQUEST
                       ATTORNEY FEES AND COSTS
      You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.                          You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. 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
                                                                                  5

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
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.
