UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
MORRIS ONYEWUCHI, DOCKET NUMBER Appellant, DA-3330-21-0036-I-4
v.
DEPARTMENT OF JUSTICE, DATE: August 6, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1 Morris Onyewuchi , Laguna Vista, Texas, pro se.
Patricia Washington , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his Veterans Employment Opportunities Act of 1998 (VEOA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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
interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s analysis that the appellant failed to prove that the agency violated regulations related to veterans’ preference rights, we AFFIRM the initial decision. ¶2 On review, the appellant argues, amongst other things, that the administrative judge failed to address his claim that the agency violated 5 C.F.R. §§ 302.202-.203 when it made ad hoc qualification requirements and disqualified him from competing for the Appellate Immigration Judge (AIJ) position. Petition for Review (PFR) File, Tab 4 at 9-16, 21-28. Specifically, he asserts that the agency unlawfully made experience as an EOIR Acting Deputy Director a qualification standard to select non-preference eligible individuals over him for the AIJ position. Id. at 11-14. Thus, according to the appellant, the agency disqualified him from further competing based on the ad hoc qualification standard. Id. We are not persuaded. ¶3 It appears that the appellant is conflating the agency’s evaluation of the qualified candidates’ experience with its qualification standards. Id. at 9-16, 21-28. The record reflects that the agency accepted the appellant’s application, found that he met its qualification standards, and included him on its certificate of qualified applicants. Onyewuchi v. Department of Justice, MSPB Docket No. DA-3330-21-0036-I-4, Appeal File (I-4 AF), Tab 5 at 203-08, Tab 11 at 31, 3
35-37, 48-55. Nonetheless, the agency did not select the appellant for an AIJ position. I-4 AF, Tab 5 at 160-61. Therefore, we interpret the appellant’s argument to be a challenge to the agency’s assessment of another candidate’s experience in comparison to his experience. PFR File, Tab 4 at 9-16. ¶4 VEOA does not empower the Board to reevaluate the merits of the agency’s ultimate determination that the preference-eligible appellant is not the best qualified candidate for the position. See Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 12 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016). How the agency weighs the appellant’s experiences is beyond the purview of the Board’s review in this VEOA appeal. Id., ¶ 9. To the extent that the administrative judge erred in failing to address the appellant’s claim that the agency violated regulations set forth at 5 C.F.R. §§ 302.202-.203, which he raised in the proceedings below, see I-4 AF, Tab 5 at 16-17, 77-93, Tab 13 at 22-29, her error did not prejudice the appellant’s substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). ¶5 Based on the foregoing, we affirm as modified the initial decision, still denying the appellant’s request for corrective action under VEOA.
NOTICE OF APPEAL RIGHTS 2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not
2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4
provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S.
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UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
MORRIS ONYEWUCHI, DOCKET NUMBER Appellant, DA-3330-21-0036-I-4
v.
DEPARTMENT OF JUSTICE, DATE: August 6, 2024 Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1 Morris Onyewuchi , Laguna Vista, Texas, pro se.
Patricia Washington , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his Veterans Employment Opportunities Act of 1998 (VEOA) appeal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly 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
interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s analysis that the appellant failed to prove that the agency violated regulations related to veterans’ preference rights, we AFFIRM the initial decision. ¶2 On review, the appellant argues, amongst other things, that the administrative judge failed to address his claim that the agency violated 5 C.F.R. §§ 302.202-.203 when it made ad hoc qualification requirements and disqualified him from competing for the Appellate Immigration Judge (AIJ) position. Petition for Review (PFR) File, Tab 4 at 9-16, 21-28. Specifically, he asserts that the agency unlawfully made experience as an EOIR Acting Deputy Director a qualification standard to select non-preference eligible individuals over him for the AIJ position. Id. at 11-14. Thus, according to the appellant, the agency disqualified him from further competing based on the ad hoc qualification standard. Id. We are not persuaded. ¶3 It appears that the appellant is conflating the agency’s evaluation of the qualified candidates’ experience with its qualification standards. Id. at 9-16, 21-28. The record reflects that the agency accepted the appellant’s application, found that he met its qualification standards, and included him on its certificate of qualified applicants. Onyewuchi v. Department of Justice, MSPB Docket No. DA-3330-21-0036-I-4, Appeal File (I-4 AF), Tab 5 at 203-08, Tab 11 at 31, 3
35-37, 48-55. Nonetheless, the agency did not select the appellant for an AIJ position. I-4 AF, Tab 5 at 160-61. Therefore, we interpret the appellant’s argument to be a challenge to the agency’s assessment of another candidate’s experience in comparison to his experience. PFR File, Tab 4 at 9-16. ¶4 VEOA does not empower the Board to reevaluate the merits of the agency’s ultimate determination that the preference-eligible appellant is not the best qualified candidate for the position. See Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 12 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016). How the agency weighs the appellant’s experiences is beyond the purview of the Board’s review in this VEOA appeal. Id., ¶ 9. To the extent that the administrative judge erred in failing to address the appellant’s claim that the agency violated regulations set forth at 5 C.F.R. §§ 302.202-.203, which he raised in the proceedings below, see I-4 AF, Tab 5 at 16-17, 77-93, Tab 13 at 22-29, her error did not prejudice the appellant’s substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). ¶5 Based on the foregoing, we affirm as modified the initial decision, still denying the appellant’s request for corrective action under VEOA.
NOTICE OF APPEAL RIGHTS 2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not
2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4
provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, 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 5
http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S.420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 6
and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 7
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, 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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.