Stewart v. DVA

• Court: Court of Appeals for the Federal Circuit
• Decided: October 9, 2024
• Docket: 24-1666
• Status: Unpublished

Opinion

Case: 24-1666 Document: 14 Page: 1 Filed: 10/09/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MARVIN L. STEWART, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2024-1666 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-3330-18-0074-I-1. ______________________

Decided: October 9, 2024 ______________________

MARVIN L. STEWART, Long Beach, CA, pro se.

NELSON KUAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. ______________________

Before LOURIE, BRYSON, and STARK, Circuit Judges. PER CURIAM. Case: 24-1666 Document: 14 Page: 2 Filed: 10/09/2024

Petitioner Marvin L. Stewart appeals from a final deci- sion of the Merit Systems Protection Board denying his ap- peal from the failure of the Department of Veterans Affairs (“DVA”) to select him for any of the three positions within the agency for which he had applied. We affirm. I Mr. Stewart, a preference-eligible veteran, was em- ployed by the DVA as a GS-7 Accounting Technician. In 2017, he applied for the positions of Patient Representa- tive, Budget Analyst, and Program Analyst within the DVA, all at the GS-11 level. Each position announcement required candidates to have served a minimum of 52 weeks in positions no more than two grades lower than the posi- tion to be filled, or to have one year of equivalent special- ized experience. Mr. Stewart was not selected for any of the three posi- tions. After Mr. Stewart submitted his applications, the DVA advised him that he was not qualified for the position of Patient Representative because he did not meet the spe- cialized experience required at the GS-11 level. Similarly, he was advised that he was not qualified for the Budget Analyst position at the GS-11 level because he lacked per- tinent experience at the GS-9 grade level. After posting the Program Analyst position and reviewing the applications, including Mr. Stewart’s, the DVA determined that none of the candidates had the necessary experience for that posi- tion, so the agency closed the announcement without mak- ing a selection. Mr. Stewart filed an appeal from the non-selection de- cisions with the Department of Labor, contending that his non-selection violated the Veterans Employment Opportu- nities Act of 1998 (“VEOA”). The Department of Labor de- nied his claim, after which he filed a petition for appeal to the Merit Systems Protection Board. A Board administrative judge denied Mr. Stewart’s pe- tition for appeal, holding that the DVA had not violated Mr. Case: 24-1666 Document: 14 Page: 3 Filed: 10/09/2024

STEWART v. DVA 3

Stewart’s rights under the VEOA when it failed to select him for any of the three positions. Stewart v. Dep’t of Vet- erans Affs., No. SF-3330-18-0074-I-1, 2018 WL 1243515 (Mar. 8, 2018), S. App. 9–28 (“Initial Decision”). In partic- ular, the administrative judge ruled that Mr. Stewart failed to meet his burden of showing that the agency had violated his rights under a statute or regulation relating to veterans’ preferences. Id., S. App. 17–20. The administra- tive judge found that the agency had lawfully chosen to fill the positions through the merit promotion process1 and that it was proper for the agency to determine that Mr. Stewart was not qualified for any of the positions for which he applied. Id., S. App. 18–19. The administrative judge also ruled that the Department of Labor had properly de- termined that Mr. Stewart was subject to the time-in-grade requirements set by Office of Personnel Management reg- ulations and that Mr. Stewart did not satisfy the applicable time-in-grade requirement for any of the three positions. Id., S. App. 18–19. Finally, the administrative judge deter- mined that the DVA had not overlooked or excluded any of Mr. Stewart’s experiences or work history in assessing his qualifications. Id., S. App. 19. Mr. Stewart petitioned for review by the full Board, which denied the petition and affirmed the initial decision of the administrative judge. Stewart v. Dep’t of Veterans Affs., No. SF-3330-18-0074-I-1, 2024 WL 1366493

1 The Patient Representative and Budget Analyst positions were open to “[c]urrent or former competitive ser- vice employees,” and to “current employees” of the DVA. S. App. 35, 43. The Program Analyst position was open to “[c]urrent or former competitive service employees” and “[v]eterans.” S. App. 52. The administrative judge found that the agency used the merit promotion process to fill these positions because the positions were “limited [to] ap- plicants with various eligibilities.” Initial Decision, S. App. 18. Case: 24-1666 Document: 14 Page: 4 Filed: 10/09/2024

(M.S.P.B. Mar. 29, 2024), S. App. 1–2 (“Final Decision”). The administrative judge’s decision thereby became the de- cision of the Board. II “We must affirm a Merit Systems Protection Board de- cision unless it is arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evi- dence.” Kerner v. Dep’t of the Interior, 778 F.3d 1336, 1337 (Fed. Cir. 2015); see also 5 U.S.C. § 7703(c). Mr. Stewart raises a variety of issues on which he contends that the Board erred in assessing his VEOA claim. Each argument fails. “Federal agencies generally use two types of selection to fill vacancies: (1) the open ‘competitive examination’ pro- cess and (2) the ‘merit promotion’ process.” Joseph v. Fed. Trade Comm’n, 505 F.3d 1380, 1381 (Fed. Cir. 2007); see also 5 C.F.R. §§ 332.101, 335.103. “The open competitive examination generally is used for employees seeking to join the competitive service and often is used for reviewing ap- plicants outside the agency.” Joseph, 505 F.3d at 1381. “The merit promotion process is used when the position is to be filled by an employee of the agency or by an applicant from outside the agency who has ‘status’ in the competitive service.” Id. at 1382. Under the competitive examination process, veterans are given special advantages, including the addition of points to their competitive scores and being ranked ahead of others with the same score. See 5 U.S.C. § 3309; 5 U.S.C. § 3313. Those point and ranking preferences, however, “do not apply in the merit promotion process.” Joseph, 505 F.3d at 1382. The VEOA provides that veterans “may not be denied the opportunity to compete for vacant posi- tions for which the agency making the announcement will accept applications from individuals outside its own work- force under merit promotion procedures.” 5 U.S.C. Case: 24-1666 Document: 14 Page: 5 Filed: 10/09/2024

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§ 3304(f)(1). This provision “guarantee[s] veterans only a right to apply and an opportunity to compete for such posi- tions,” and “[says] nothing about the basis upon which the agency could make its selection.” Joseph, 505 F.3d at 1383. The VEOA “is intended to assist veterans in gaining access to federal civil service employment, not to give veterans preference in merit promotions.” Kerner, 778 F.3d at 1338. It is undisputed that the vacancies in this case were subject to the merit promotion process. The Board was therefore correct to hold that Mr. Stewart was entitled to compete for the positions for which he applied, but was not entitled to point and ranking preferences. 1. As noted, each of the positions for which Mr. Stewart applied was subject to a “time-in-grade” requirement, providing that the applicant must have completed a mini- mum of 52 weeks in positions no more than two grades lower than the applied-for position or requiring one year of equivalent specialized experience. S. App. 38, 45, 55. The positions for which Mr. Stewart applied were GS-11 grade positions, and Mr. Stewart was at the time employed in a GS-7 position with the agency. Mr. Stewart therefore did not satisfy the time-in-grade requirement.2

2 The administrative judge cited 5 C.F.R. § 300.604(a) and held that Mr. Stewart was required to “have completed a minimum of 52 weeks in positions no more than one grade lower (or equivalent) than the position to be filled.” Initial Decision, S. App. 19. The vacancy an- nouncements in this case, however, required a minimum of 52 weeks in positions no more than two grades lower than the position to be filled. See S. App. 38, 45, 55. Neverthe- less, as the Board explained, the administrative judge’s er- ror “did not adversely affect the appellant’s substantive rights” since Mr. Stewart did not meet the time-in-grade requirement under either standard. Final Decision, S. App. 2 n.2. Case: 24-1666 Document: 14 Page: 6 Filed: 10/09/2024

In response, Mr. Stewart argues that the DVA should have used its special appointing authority under 38 U.S.C. § 4214 to override the time-in-grade requirement in his case. As the Board pointed out, however, the applicable regulations governing the use of the special appointing au- thority make it clear that the use of that authority is en- tirely discretionary with the agency. See 5 C.F.R. § 300.603(b) (“The following actions may be taken without regard to this subpart but must be consistent with all other applicable requirements, such as qualification stand- ards[.]”). The DVA in this case did not elect to use that authority, and Mr. Stewart has made no showing that the DVA abused its discretion in declining to do so. 3 2. Mr. Stewart argues in the alternative that the DVA improperly disregarded his legal training when it refused to appoint him to any of the positions for which he applied. Mr. Stewart notes that he holds a J.D. degree and a Bach- elor of Science in Laws degree from Taft Law School, an online law school in Santa Ana, California. He argues that his legal training, and in particular the online courses in Alternative Dispute Resolution and Health Care Law he took from the Taft Law School, constituted “one year of equivalent specialized experience” that qualified him for the positions for which he applied. Specialized experience, however, had to be related to the responsibilities of the po- sition—and to the extent that education could substitute for experience, the degree also had to be related. See S. App. 37–38, 45–46, 55–56. The administrative judge reasonably found that Mr. Stewart’s legal training was not

3 Mr. Stewart offers evidence that the special ap- pointing authority was used in the case of another DVA employee, Richard Mendoza. But the position to which Mr. Mendoza was appointed was not one of the positions at is- sue in this case, and the agency’s decision to use the discre- tionary special appointing authority in one instance does not bind it to use that authority in any other situation. Case: 24-1666 Document: 14 Page: 7 Filed: 10/09/2024

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in a field of study related to the work of the positions at issue.4 Mr. Stewart also contends that his service, on a volun- tary basis, as a Patient Advocate Liaison Specialist begin- ning in November 2015 served as a source of experience relevant to the position of Patient Representative. It was not unreasonable for the agency to conclude that such vol- untary service was not equivalent to the level of experience required to substitute for satisfying the time-in-grade re- quirement.

4 In his initial petition for appeal to the Board, Mr. Stewart argued only that he had “two law degrees” that could substitute for specialized experience. See MSPB Rec- ord 12–13. The administrative judge thus referred gener- ally to Mr. Stewart’s “higher level graduate education” and found it unrelated to the work of the positions at issue. S. App. 18. In this court, Mr. Stewart argues that two courses he took in particular—Alternative Dispute Resolu- tion and Health Care Law—support his assertion that he has specialized experience equivalent to a year in a position at least at the GS-9 level. Mr. Stewart also argues in his reply brief that the DVA “tampered with the Agency Files,” because the transcript for his Bachelor of Science in Laws degree program that lists those two courses “was removed” from the administrative record. Petitioner’s Reply Br. at 1. The MSPB record contains Mr. Stewart’s transcript for his J.D. degree program. That transcript incorporates all the courses he took for his Bachelor of Science in Laws pro- gram, but with the exception of the courses in Alternative Dispute Resolution and Health Care Law. Compare MSPB Record 142 with Petitioner’s Reply Br. App. 12. However, simply pointing to the titles of those two courses is plainly insufficient to show that taking those courses constitutes the “one year of equivalent specialized experience” re- quired for the positions to which Mr. Stewart was applying. Case: 24-1666 Document: 14 Page: 8 Filed: 10/09/2024

It was therefore not an error for the Board to hold that the DVA did not violate Mr. Stewart’s rights when it de- clined to appoint him to any of the three positions for which he applied in 2017. 3. In addition to his contentions on the merits, Mr. Stewart raises a procedural issue. He contends that the administrative record in this case did not include certain materials that he submitted to the DVA in connection with his employment applications. In particular, he complains that the cover letters he included with his applications, his resumes, and certain supporting documents were not in- cluded in the administrative record. Copies of Mr. Stewart’s resume and other documents that he has identified as submitted with his cover letters were in fact included in the administrative record. See MSPB Record 134–149, 192–199, 233–240. It is true that Mr. Stewart’s cover letters for the three applications were not included in the administrative file. However, based on the representative copy of the cover letters that Mr. Stew- art has provided in the appendix to his petition, the cover letters merely summarized information contained in the remaining application materials, which were made part of the administrative file. See Petitioner’s App. 2-1 to 2-2. Therefore, even if the cover letters should have been in- cluded in the administrative record, their omission could not have had a material effect on the availability of rele- vant information for the administrative judge’s considera- tion. Beyond that, Mr. Stewart had the opportunity to deter- mine whether the administrative record was complete and to supplement the record as needed while the case was pending before the administrative judge, when correction of any error would have been a simple matter. Yet he failed to raise the issue at any time before filing his opening brief Case: 24-1666 Document: 14 Page: 9 Filed: 10/09/2024

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in this case.5 His failure to address the record issue earlier in the proceedings effectively forfeited his right to object at this late stage of the proceedings. Finally, Mr. Stewart has had multiple opportunities to brief the facts and law in this case and has taken ad- vantage of those opportunities, including submitting two lengthy briefs to the administrative judge. He has pointed to nothing of material significance in any of the allegedly missing documents that was not covered in those briefs and thus was not before the administrative judge. Any error in the assembly of the administrative records in this case has therefore not been shown to have prejudiced Mr. Stewart. We have carefully reviewed all of Mr. Stewart’s other arguments, but conclude that they lack merit. The Board did not err in denying corrective action because the agency did not violate Mr. Stewart’s rights under the VEOA. AFFIRMED COSTS No costs.

5 Mr. Stewart concedes in his reply brief that “[w]hile this matter was before the Administrative Judge, and the MSPB Board, [he] did not review the Agency File for its completeness, . . . [and] had assumed the Agency’s File was accurate and complete.” Petitioner’s Reply Br. at 2. According to Mr. Stewart, he was “overwhelmed with this case, employment, and . . . his Post-Doctoral studies in a Master of Business” at the time. Id. Those assertions do not establish good cause for his failure to address record issues on a timely basis.