Comments of Robert B. Richardson, MBA

36 Chicory Lane, Lancaster, NY 14086

Re: Options for Proposed Amendments to MSPB Rules of Practice and Procedure

79 Fed. Reg. 64 (Apr. 3, 2014)

April 23, 2014

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street NW

Washington, DC 20419

mspb@mspb.gov

Dear Mr. Spencer:

I am a supervisory mission support specialist that has overseen workforce management for a

25,000-man federal agency. I write now in my personal capacity to express concern with the

Board's proposal to exclude VEOA, IRA, and DSERRA appeals from 5 C.F.R §1201.56, which

would definitively preclude recourse to "Affirmative Defenses of the Appellant" as granted by 5

D.S.C.7701(c)(2). My disagreement is limited to the extent that once jurisdiction for the

complaint is established, the proposal seems to dictate that all consideration of any affirmative

defense is prohibited from examination of the underlying merits. (I do not mean to suggest that

the Board must fully adjudicate/remedy other alleged "appeals," for which it does not have

original jurisdiction under the particular "complaint" raised, but only consider them to the extent

necessary to address the merits of the complaint under the "totality of the circumstances.")

Bluntly, the proposal's claim that "The following authorities stand for well-established principles

that are inconsistent with section 1201.56, thereby justifying Option B's limitation of section

1201.56's [and 5 D.S.C. 7701(c)(2)'s] coverage to appeals other than IRA appeals, VEOA

appeals, and DSERRA discrimination and retaliation appeals, as well as Option B' s creation of a

new regulation covering IRA appeals, VEOA appeals, and DSERRA discrimination and

retaliation appeals" seems to be vastly overstated. To the contrary, the instant proposal explicitly

acknowledges existence of an "anomaly" in the Board's own regulations that have yet to be fully

resolved, hence the Board's unilateral desire to do so now outside the judicial process. For

instance, cited authorities such as "Dale v. Department a/Veterans Affairs, 102 M.S.P.R. 646, ~
13 (2006) (the appellant bears the burden of proof on the merits in a VEOA appeal)" and

"Goldberg v. Department of Homeland Security, 99 M.S.P.R. 660, , 11 (2005) (in a VEOA

appeal, the Board lacks authority to adjudicate an appellant's affirmative defense under 5 U.S.C.

§ 7701 (c)(2))" do not necessarily support the propositions attributed to them once read in their

entirety. In Dale, the cited paragraph simply infers that no other allegations were applicable to

the grade level sought, and therefore, there was nothing left to adjudicate, including any

affirmative defenses. Moreover, the proposal's citation of Goldberg seems to be a complete

overreach. That is, , 11 does not cite § 7701 (c)(2)) at all. It merely establishes that VEOA

jurisdiction, once met, cannot be extended to other allegations for adjudication: "However, the

Board cannot obtain jurisdiction over the appellant's age discrimination and prohibited personnel

practice claims through USERRA or VEOA." It does not hold that once VEOA jurisdiction (i.e.

"who," "what," and case processing rules) is established, the principles of affirmative defenses

are inapplicable to the merits of the underlying VEOA claim itself.

In fact, the recent VEOA nonselection decision in Lazaro v. Dep't of Veterans Affairs, 666 F.3d

1316 (Fed. Cir. 2012) is instructive. Lazaro plainly refutes the proposed regulation's premise

that the "principles" of 5 U.S.c. 7701 (c)(2) do not apply to VEOA cases. The Court found:

"There is simply no way to analyze whether a veteran's preference rights were violated without

examining the grounds upon which the veteran's non-selection was predicated."

Further, in another VEOA nonselection case, Robinson v. Dep't of Housing and Urban

Development, MSBP Docket Number CH-3330-11-0845-I-1 (2012), the Board's final decision

clearly contemplates, in its last operative paragraph, that harmful error, 5 USC 7701(c)(2)(a),

applies to VEOA cases! In relevant part:

The [VEOA] appellant also contends that the agency violated its own procedural guidelines. PFR File, Tab

1 at 12-13; IAF, Tab 27, Subtabs 3c, 3d, 3h. The appellant has not specifically explained how any agency

error harmed him by showing that the error was likely to have caused the agency to reach a different

conclusion from the one that it would have reached in the absence or cure of the error. Thus, he has not

shown that his contention warrants reversing the initial decision. Cf Doe v. Department of Justice, 118

M.S.P.R. 434, ~ 31 (2012) (stating that an agency's procedural error does not warrant reversal of an

employee's removal unless the employee has shown that the error was harmful under 5 U.S.C. §

no 1(c)(2)(A)).

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Robinson, then, explicitly contradicts the proposed regulation's premise that § 7701(c)(2)(A)

does not have any legal relevance in VEOA cases-at the very least, this case suggests that such

proposition is not so obviously "well established" as the proposal alleges. Thus, denying VEOA

appellants appropriate recourse to the principles of Affirmative Defenses, now seemingly

guaranteed under the Board's current regulations via 5 C.F.R. 1208.3 "Application of 5 C.F.R.

part 1201 to VEOA Appeals," seems unconscionable for a Board whose primary purpose is to

safeguard merit system principles.

And, before stripping VEOA appellant's access to Affirmative Defenses, the Board should also

consider its analysis of the legislative history of the VEOA relative to merit system principles as

captured in Dean v. Dep't of Agriculture, 99 MSPR 533, (2005). There, the Board emphasized

Congress's explicit intent to give special consideration to covered veterans and specifically noted

its desire that "VEOA [broadly] address a variety of strategies recently used by agencies that

threaten veterans' preference, whether that is their intended effect or not. H.R. Rep. No.105-40

(1997)" ~18. How then does the Board now justify its proposal to remove access to the

principles of Affirmative Defenses, currently extended to VEOA cases via §120S.3, where the

appellant reasonably proves that the selection/nonselection involved prohibited personnel

practices, harmful errors, and/or was otherwise not in accordance with law vice providing bona

fide consideration?l

For similar reasons, I share the same concerns regarding the proposed changes to the extent they

relate to USERRA and IRA nonselection cases on the basis that selections must always be made

1 The Board has actually applied the principle of "harmful error" to find several VEOA cases in favor of appellant,

see Walker v. Dep 't of the Army, 2006 MSPB 337 (2006) (nons election as a result of Agency failure to process

veteran's self-nomination), Lazaro (nonselection resulting from Agency failure to credit military and volunteer

experience), Vassallo v. Dep't of Defense, 2014 MSPB 24 (2014) (nonselection resulted from Agency improperly

rejecting application because appellant included an SF-52 vice SF-50 which provides identical information), etc.

Similarly, and by defmition (perhaps to the proposal's underlying rationale), the principle "not in accordance with

law" applies to all VEOA cases to varying degrees. See for example, Endres v. Dep 't of Veterans Affairs, 2007

MSPB 301 (2007) (nonselection where selectee lacked any appointment authority even where the appellant was

otherwise considered) and Shapley v. Department of Homeland Security, 2008 MSPB 212 (Agency attempted to use

noncompetitive hiring authority to circumvent bona fide consideration of appellant). Further, as seemingly allowed

under Lazaro, prohibited personnel practices might also give rise to affirmative defenses in VEOA cases as being

argued now before the Board, see Docket # NY-3330-13-0128-I-l (uncontested preselection where the disputed

position was offered in writing to another outside candidate without any special hiring authority before the

armouncement was even published).

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"solely on individual merit" which must be "secured by every possible safeguard.T' In fact, the

Board has repeatedly held that remedial statutes such as the VEOA, USERRA and lRAs "should

be construed [broadly] to suppress the evil and advance the remedy." Endres v. Dep 't of

Veterans Affairs, 2007 MSPB 301, (2007), ~ 17, citing both Dean, ~ 19, and Williams v. Dep't of

the Navy, 90 M.S.P.R. 669, ~7, vacated on other grounds, 55 F. App'x 538 (Fed. Cir. 2002).

Moreover, in Metzenbaum v. Department of Justice, 89 M.S.P.R. 285 (2001) ~ 15, "The Board

has held that its authority with regard to IRA appellants does not extend beyond whistleblower

issues, does not allow for a decision on the merits of the underlying personnel action except to

the extent necessary to address the appellant's whistleblower claims ... Similarly, the Board

has held, and we reaffirm today, that its authority with regard to USERRA complaints or appeals

does not extend beyond the complained-of discrimination because of military status, does not

allow for a decision on the merits of the underlying matter except to the extent necessary to

address the appellant's military status discrimination claims" (emphasis added). See also,

Wright v. Department of Veterans Affairs, 73 M.S.P.R. 453, 456 n.* (1991), review dismissed,

173 F.3d 432 (Fed. Cir. 1998) (Table) (Board remanded appeal containing a USERRA claim,

directing AJ to consider appellant's evidence attacking merits of underlying action, not otherwise

appealable, only to the extent it was relevant to the USERRA claim); Botello v. Department of

Justice, 76 M.S.P.R. 117, 124 (1997) (where Board found jurisdiction over USERRA claim, AJ

was directed to consider the appellant's claim of reprisal for filing EEO complaints only if AJ

determined that the Board had jurisdiction to consider the underlying personnel action, a

negative suitability determination).

Consequently, artificially parsing the merit elements of these types of "complaints" to strict

rubrics without explicitly requiring a Lazaro Analysis and application of the principles

enumerated by 5 U.S.c. 7701(c)(2)'s Affirmative Defenses as currently required by the

aforementioned authorities, is inconsistent not only with the Board's primary purpose of

upholding merit principles, but it also goes against the explicit Congressional intent of these

remedial statutes. Certainly, this proposal, if enacted without adequate safeguards to these

2 See 5 USC 2301 and S. Rep. No. 576, 47th Congo (1882) as quoted in Dean, "The single, simple, fundamental,

pivotal idea oftbe whole bill is... appointment or promotion sball be given to the man who is best fitted to discharge

. the duties of the position ... The impartiality .. .is to be secured by every possible safeguard. They are to be open to all

who choose to present themselves."

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concerns (e.g. adding a Lazaro analysis requirement to the Board's new jurisdiction matrix3

under the VEOA "merit issues" portion, continuing to allow 5 D.S.C. 7701 (c)(2) application to

VEOA appeals per 5 C.F.R. 1208.3, etc.), will do nothing to advance merit system principles

which should be the overruling imperative.

Thank you for this opportunity to comment on the proposed regulations.

Respectfully submitted,

-~.~~~

3 Author notes that MSPB's current chart incorrectly refers to "5 use 3104(f)(l}" vice "3304(f)(1)" under the "Who

are You" VEDAjurisdictional element-a simple typo.

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