Federal Register / Vol. 79, No. 64 / Thursday, April 3, 2014

______________________________________________________________

To the

MERIT SYSTEMS PROTECTION BOARD

_______________________

COMMENTS ON THE BOARD PROPOSED RULES

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Provided by Rakhmatulla Asatov

A stakeholder in the Board proceedings

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courtesy copies are submitted to

COMMITTEES ON VETERANS' AFFAIRS OF

U.S. SENATE AND HOUSE OF REPRESENTATIVES

_________________

Point of Contact:

rakhmatulla.asatov@gmail.com

_________________

May 5, 2014

________________________________________________________

Page 1
I. TABLE OF CONTENTS.

Name page

Title Page........................................................................... 1.

I. Table of Contents............................................................... 2.

II. Table of Authorities............................................................ 3­4.

III. Synopsis........................................................................ 5­6.

IV. Statement of Issues Presented for Review................................. 6­7.

V. Summary of Argument......................................................... 7­9.

VI. Argument....................................................................... 9­31.

1. The Board Lacked Authority to Deny Evidentiary Hearings............ 9­11.

2. Title 5 Section 7701 Applies To VEOA Appeals........................ 11­14.

3. The Board Lacked Authority to Overrule 5 CFR 1201.56.............. 14­15.

4. The Board’s Regulations at 1208.13 & 23 and at 1201.57 Are Invalid 15­16.

5. The Board Must Examine Personnel Actions in Every VEOA Appeal 16­21.

6. The Board Is Responsible For Protecting Constitutional Rights 21­23.

7. The Board Denied Veterans Due Process of Law........................ 23­31.

8. The Board Denied Veterans Equal Protection of Law................... 31­38.

9. The Board’s Hearing Process is Inadequately Fair....................... 38­39.

VII. Recommendations............................................................ 39­40.

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II. TABLE AUTHORITIES.

1. Due Process Clause of the Fifth Amendment to U.S. Constitution.

2. Statutes: a. 5 U.S.C. 1302, b. 5 U.S.C. 2301 & 2302, c. subchapter I of chapter

33 of title 5, d. 5 U.S.C. 1201 & 1204, e. 5 U.S.C. 7701 & 7703.

3. Congressional Records: a. Senate Report 95­969, 1978, b. H.R. 105­340, 1997,

c. H.R. 105­675, 1996, d. Senate Hearing 111­452, 2009, e. Senate Hearing

112­527, 2012.

4. Judicial Opinions.

a. Marbury v. Madison, 1 Cranch 137, 163 (1803)

b. Morton v. Mancari, 417 US 535 ­ Supreme Court, 1974.

c. Connecticut Nat. Bank v. Germain, 503 US 249, 253 ­ Supreme Court, 1992.

d. United States v. Fausto, 484 US 444 ­ Supreme Court, 1988.

e. Free Ent. Fund v. P.C.A.O.B, 130 S. Ct. 3138 ­ Supreme Court, 2010.

f. Board of Regents of St. Col. v. Roth, 408 US 564 ­ Supreme Court, 1972.

g. In re winship, 397 US 358, 384 ­ Supreme Court 1970.

h. Davis v. Passman, 442 US 228, 234 ­ Supreme Court, 1979.

i. Andrus v. Glover Constr. Co., 446 US 608 ­ Supreme Court, 1980.

j. Hilton v. Sullivan, 334 US 323 ­ Supreme Court, 1948.

k. Larson v. Dom. & For. Com. Corp., 337 US 682 ­ Supreme Court, 1949.

l. South Corp. v. U.S. 690 F.2d 1368 ­ Federal Circuit, 1982.

m. Noble v. Tennessee Valley Authority, 892 F. 2d 1013 ­ Federal Circuit, 1989.

n. Kirkendall v. Department of Army, 479 F.3d 830 ­ Federal Circuit, 2007.

o. Crispin v. Dept. of Commerce, 732 F. 2d 919 ­ Federal Circuit, 1984.

p. Tunik v. Merit Systems Protection Bd., 407 F. 3d 1326 ­ Federal Circuit, 2005.

q. Ruggieri v. MSPB, 454 F. 3d 1323 ­ Federal Circuit, 2006.

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r. Gingery v. Department of Defense, 550 F. 3d 1347 ­ Federal Circuit, 2008.

s. Spruill v. Merit Systems Protection Board, 978 F.2d 679 (Fed. Cir. 1992).

t. Stringer v. United States, 90 F. Supp. 375, 380­ Court of Claims, 1950.

u. Casman v. United States, 181 F. Supp. 404, 408 Court of Claims, 1958.

v. Fitzgerald v. Hampton, 467 F. 2d 755 ­ District of Columbia, 1972.

w. Unit. Tech., Inc. v. Brown.­Fer. Ind., Inc., 33 F. 3d 96 ­ 1st Circuit, 1994.

x. US v. Scott, 450 F. 3d 863 ­ 9th Circuit, 2006.

y. US v. Lynch, 162 F. 3d 732 ­ 2nd Circuit, 1998.

z. Carver v. Lehman, 550 F. 3d 883 ­ 9th Circuit, 2008.

(1). Evans v. OPM, 276 F. Supp. 2d 34 ­ Dist. Court, Dist. of Columbia, 2003.

5. Regulations: (a) 5 CFR 1201.24(d) , .56 & .183(a), (b) 5 CFR 315.611

6. MSPB Opinions.

a. Dean v. Department of Agriculture, 99 M.S.P.R. 533, 2005.

b. Isabella v. Department Of State, 109 M.S.P.R. 453, 2008.

c. Carew v. Office of Personnel Management, 34 M.S.P.R. 527, 1987.

d. Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, 2005.

e. Von Zemenszky v. DVA, 80 M.S.P.R. 663, 1999.

f. Sanford v. Connecticut National Guard, 50 M.S.P.R. 120, 1991.

g. OSC ex. el. Paul Hardy v. HHS, 117 M.S.P.R. 174 , 2011

h. Lowe v. Department of Agriculture, MSPB, 1984 (NP).

7. Other documents.

a. DETAILED INFORMATION ON THE MERIT SYSTEM COMPLIANCE ASSESSMENT,

b. DOE/IG Report 0895, 2013.

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III. SYNOPSIS.

a. On April 3, 2014, the Merit Systems Protection Board proposed to change

its legislative rules by adding the following:

“Section 1201.57 Establishing Jurisdiction in Appeals Not Covered by Section 1201.56;

Burden and Degree of Proof; Scope of Review This proposed regulation, which the Board proposes to

insert in place of existing section 1201.57, would make clear that, in contrast to an appeal governed by

section 1201.56, in IRA appeals, VEOA appeals, USERRA discrimination and retaliation appeals, and

denial of restoration appeals, the appellant is not required to establish all jurisdictional elements by

preponderant evidence and bears the burden of proof on the merits.” Emphasis added. See Federal

Register, Doc. # 2014­07443, p. 18660.

b. However, a close reading of this section reveals that, in addition to

jurisdictional elements mentioned above, the Board is also proposing to eliminate

the “Burden and degree of proof” regarding the merits of those appeals:

“ (a) Applicability. This section applies to the following types of appeals: (1) An individual right

of action (IRA) appeal under the Whistleblower Protection Act, 5 U.S.C. 1221; (2) A request for

corrective action under the Veterans Employment Opportunities Act (VEOA), 5 U.S.C. 3330a(d); ...

(d) Scope of the appeal. Appeals covered by this section are limited in scope. With the exception of

denial of restoration appeals, the Board will not consider matters described at 5 U.S.C. 7701(c)(2) in

an appeal covered by this section.” Emphasis added, ibid.

c. The proposed rule at 5 CFR 1201.57 if implemented, “will come as a great

shock to our military veterans. For generations veterans have relied on their

preference eligibility for government employment, retention, and rehiring, which has

been sanctified by one Congress after another. Under the CSRA, enforcement of

those rights can only be had by the MSPB. The concern of the citizens of the

1

1 Except for those instances provided by 5 U.S.C. 3330b, but not mentioned in the Board decisions.

Page 5
United States for veteran's preference, guaranteed by law in both private and public

employment, has been a solid cornerstone of American public policy.” Cf. Noble

v. Tennessee Valley Authority, 892 F. 2d 1013, 1017 ­ Federal Circuit, 1989.

IV. STATEMENT OF ISSUES PRESENTED FOR REVIEW.

The regulations that need to be revised, instead, are 5 CFR 1208.13(b) &

23(b) and 5 CFR 1201.51(d) & 118, because they raise “some embarrassing

questions”:

2

1. Did the Board not mean when it said that it was bound to follow its

“reviewing court’s precedential decision”, which currently holds that (a) ”the

3

Board does not have available to it a summary judgment proceeding” (b)

4

“Kirkendall is entitled to a hearing on his USERRA claim” (c) “the Board lacked

5

authority to overrule section 1201... by adjudication” because its current

6

regulations 5 CFR 1208.13(b) & 23(b) and the Board law are inconsistent with

those decisions?

2. Did the Congress not mean when it said that a violation of any veterans

preference requirement is a prohibited personnel practice, subject to both “catchall” sections of 5 U.S.C. 2302 and 7701, because the Board, in proposed 5 CFR

7

2 Ibid.

3 See Latham v. U.S. Postal Service, 117 M.S.P.R. 400, ¶ 10 n.9 (2012).

4 See Crispin v. Dept. of Commerce, 732 F. 2d 919, 922 ­ Federal Circuit, 1984. See also Garcia v.

Department of Homeland Security, 437 F. 3d 1322, 1353 ­ Federal Circuit, 2006

5 See Kirkendall v. Department of Army, 479 F.3d 830, 834 ­ Federal Circuit, 2007(en banc).

6 See Tunik v. Merit Systems Protection Bd., 407 F. 3d 1326, 1346 ­ Federal Circuit, 2005.

7 See Kirkendall, ibid.

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1201.56 and .57, is effectively nullifying these congressional policies?

8

3. Is the Board otherwise trying to reduce the scope of veterans employment

rights to an opportunity to compete for Title 5 positions, because “an agency’s

failure to comply with 5 U.S.C. § 3304(f) does not amount to a personnel practice

prohibited by 5 U.S.C. § 2302(b)(11)”, a prospective relief of which violation may

9

bring a flood of VEOA appeals and damage the federal government’s reputation?

10

4. “It is provided by statute and regulation, ... that those who are fired for

unsatisfactory performance can get a hearing before the MSPB, as can those fired

for the efficiency of the service because of misconduct. Is it reasonable then to

11

hold that the law bars a hearing to a faithful ... holder of a veteran's preference and

who seeks to assert his reemployment rights ahead of a nonveteran?

[5.] Has Congress now provided that the incompetent and dishonest are to

be accorded MSPB hearings while heroes who have preserved our liberties are

barred? Is the foregoing according to considered congressional intent and legislative

history?”

12

V. SUMMARY OF ARGUMENT.

a. The Board in proposing and promulgating those rules, as well as

8 See the Register at p. 18658.

9 See Walker v.Department of the Army, 104 M.S.P.R. 96 ¶ 10 , 2006.

10 According to OPM’s last published review of employment certificates, the agencies have violated

veterans preference laws in every fourth of them, which ”is a serious violation and can constitute a

prohibited personnel practice punishable by adverse action, debarment from Federal service, and/or

civil penalty”. See Assessment, infra.

11 See e.g. Perez v. Department of the Air Force, p. 1, 1988 (NP). See also 5 CFR 1201.24(d).

12 See Noble, ibid.

Page 7
adjudicating the following appeals “definitely answers these questions in the

affirmative. It does not even admit the result is unfortunate. Indeed the result is

hypertechnical, whimsical, bizarre and misreads the mind of the President, and the

minds of 531 Members of Congress in 1978 when the CSRA became law.”

13

b. The direct and comparative analyses provided below show that the Board

and its reviewing Court have long undermined the Congressional policies embodied

in the Veterans Preference Act of 1944, continued in USERRA of 1994 and

enforced in the VEOA of 1998, that is to provide the veterans assistance in

obtaining a government employment and protecting their constitutional rights. As a

result, in the fifteen years following the VEOA enactment, neither one of them

published an order directing an agency to appoint a pro se veteran seeking an

appointment to the position that he was certified to be the best qualified for by the

agencies themselves.

c. Instead, the Board and its reviewing Court continuously aided federal

agencies’ efforts to devise “variety of strategies recently used by agencies that

threaten veterans preference” by reducing the scope of veterans preference rights

14

to competition for Title 5 positions in direct contravention of the legislation.

15 16

Even in those instances where agencies refused to allow veterans to compete for

Title 5 positions by misapplying OPM rules the Board would overrule its own

13 See Noble, ibid.

14 See H.R. 105­675, 1996. See Dean v. Department of Agriculture, 99 M.S.P.R. 533 ¶ 18, 2005.

15 See e.g. Scarnati v. Department of Veterans Affairs, 344 F. 3d 1246, 1248 ­ Federal Circuit,

2003, with a couple pinpointed exceptions in Isabella v. Department of State, 102 M.S.P.R. 259 ¶

10, 2006 and Graves v. Department of Veterans Affairs, 114 M.S.P.R. 209 ¶ 6, 2010.

16 See e.g. 5 U.S.C. 1302, Historical and Revisions Notes.

Page 8
standards on reversing their decisions. The proposed regulation is another step of

17

the Board’s concerted effort to relieve itself from its mandatory duties on affording

veterans due process of law.

d. The Board’s continuous refusal to adjudicate veterans appeals based on

the current legislation “by attaching strings strategically... and gradually eroding

constitutional protections” amounts to usurpation of the Article I functions of

18

Congress. Moreover, by overruling its legislative rules through adjudication it

created an appearance of injustice that cannot be tolerated by a legal system that

strives to resolve cases in a reliable, consistent and objective manner. The

arbitrariness of a power that allowed the Board and its reviewing Court to acquit

otherwise liable employing agencies if and when they see fit to do so simply cannot

be reconciled with the Supreme Court's admonition that "to perform its high

function in the best way justice must satisfy the appearance of justice."

19

VI. ARGUMENT.

1. The Board Lacked A Delegated Authority To Deny Evidentiary

Hearings.

a. The Board regulations at 5 CFR 1208.23(b) states that a “hearing may be

provided to the appellant once the Board's jurisdiction over the appeal is

established and it has been determined that the appeal is timely”. The Board

17 See e.g. Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 13, 2006. The author can

cite two dozen cases to support this conclusion, however, for the purpose of brevity he will stop on

those instances described below.

18 Cf. US v. Scott, 450 F. 3d 863, 866 ­ 9th Circuit, 2006.

19 Cf. US v. Lynch, 162 F. 3d 732, 747 ­ 2nd Circuit, 1998.

Page 9
interpreted this regulations as a way of disposing “of a claim in favor of a defending

party, without an evidentiary hearing, and based on matters beyond the claimant's

allegations is a summary judgment”.

20

b. “However, the Board does not have available to it a summary judgment

proceeding. 5 U.S.C. § 7701(a)(1), which covers appeals to the MSPB from

agency actions, provides that: An appellant shall have the right to a hearing for

which a transcript will be kept. The conference committee report which

accompanied the Civil Service Reform Act of 1978 makes clear that this provision

was meant to bar summary judgment proceedings.” See Crispin, ibid.

c. Although the Court agreed that the presiding official had an interest in the

orderly administration of her docket, it did not agree that this entitled her “to act in

contravention of the law and deny petitioner the hearing she is legally entitled to

receive.” See id at 924.

d. Therefore, by holding that “both the Board and its reviewing court have

held that ... the Board has the discretion to decide the case without a full evidentiary

hearing”, the Board has contravened what both of them and the legislation once

21

actually said. See Carew v. Office of Personnel Management, 34 M.S.P.R. 527 p. 3,

1987.

e. Since the Board in proposing its current rules apparently reviewed

Garcia’s en banc opinion implicitly affirming its Crispin decision, the Board in

22

20 See Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 8 (2008). See also Jarrard

Social Security Administration, 115 M.S.P.R. 397, ¶ 8, ( 2010).

21 See Wible v. Department of the Army, 2013 MSPB 87, ¶ 8, 2013 relying on on other case, which

cited Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 1984).

22 See the Register at p. 18659.

Page 10
Wible, supra, could not have meant what its opinion stated. Say it ain't so, Board

members.

23

2. Title 5 Section 7701 Applies To VEOA Appeals.

a. In Kirkendall, 479 F.3d 830, 834, ­ Federal Circuit, 2009 (en banc), the

Court also affirmed its panel’s opinion that veterans are entitled to a hearing

provided by 5 U.S.C. 7701. However, it did not address the applicability of Section

7701 to the petitioner’s VEOA claim. Some of its judges, like Judge Bryson, even

argued against applying Section 7701 to USERRA appeals: “The USERRA statute

does not refer to the proceeding before the Board as an "appeal," and it does not

refer to section 7701 as providing the procedures for adjudicating USERRA

complaints before the Board. Therefore, section 7701 does not confer an absolute

right to a hearing before the Board in USERRA cases. Such a right, if conferred by

statute, must be found in the USERRA statute itself.” Id at 865.

b. The question is whether VEOA refers to the proceeding before the Board

as an "appeal" and to section 7701 as providing the procedures for adjudicating

VEOA complaints before the Board ? In addition to the majority’s opinion

expressed in Kirkendall, supra the following legislation and authorities answer that

question in the affirmative.

(1). In Stringer v. United States, 90 F. Supp. 375, 380 (1950) a Court of

Claims, relying on the Civil Service Commission’s rules, held that "procedural

24

23 Cf. Carver v. Lehman, 550 F. 3d 883, 897­ Court of Appeals, 9th Circuit, 2008.

24 “Decisions of the Court of Claims are part of the governing body of precedent cf the U.S. Court of

Appeals for the Federal Circuit, ...and are therefore controlling authority on the Board, ” See Sanford v.

Connecticut National Guard, 50 M.S.P.R. 120 ¶ n. 3, August 28, 1991.

Page 11
requirements of section 14 of the Veterans' Preference Act on which Part 22 of the

Commission’s regulations is based, established fixed rights, and there is no

25

provision in the section as to waiver.".. The requirements of Section 14 are specific

and mandatory. Neither this court, nor the Commission, nor the [agency] can

disregard them. Strict compliance is required.” Emphasis added.

(2) In Lowe v. Department of Agriculture, p. 6, MSPB, 1984 (NP), the Board

held that “Section 18 provided that the act shall not be construed to take away any

rights granted to preference eligibles under any existing law, executive order,

civil­service rule or regulation. Section 19 stated that the Commission had the duty

and authority, with respect to the classified service, to make and enforce

"appropriate rules and regulations to carry into full effect the provisions, intent, and

purpose of this act . . . ."

(3). “A leading purpose of the CSRA was to replace the haphazard

arrangements for administrative and judicial review of personnel action, part of the

"outdated patchwork of statutes and rules built up over almost a century" that was

the civil service system, S. Rep. No. 95­969, p. 3 (1978). Under that pre­existing

system, only veterans enjoyed a statutory right to appeal adverse personnel action

to the Civil Service Commission (CSC), the predecessor of the MSPB. 5 U.S.C. §

7701 (1976 ed.).” See United States v. Fausto, 484 US 444 ­ Supreme Court, 1988.

(4). The VEOA, in turn, is the general run of administrative statutes, which

26

gives the Board authority to "adjudicate” veterans claims it had previously

dismissed. “Where there is no clear intention otherwise, a specific statute will not

27

25 See 5 CFR 1201.Subpart B.

26 Cf. Kirkendall, 479 F.3d 830 supra, at 865. Emphasis added.

27 See e.g. Noble, supra at 1015.

Page 12
be controlled or nullified by a general one, regardless of the priority of enactment”.

See Morton v. Mancari, 417 US 535, 551 ­ Supreme Court, 1974.

28

(5). Moreover, ”VEOA strengthened and broadened the applicability of

veterans’ preference, Government­wide, in order to improve redress for preference

eligibles. S. Rep. No. 105­340, at 14­18 (1998). Subsection 2302(b)(11) reinforces

the Government’s commitment to protecting and preserving the rights of veterans

by making it a PPP [Prohibited Personnel Practice] to knowingly violate certain

veterans’ preference laws, rules, and regulations”.

29

(6) It did not limit those rights to an opportunity “to be considered alongside

internal candidates under merit promotion procedures.” See e.g. Joseph v. Federal

Trade Commission, 103 M.S.P.R. 684, ¶10, 2006.

(7). Furthermore, there is nothing in the legislative history of VEOA, supra,

that indicates affirmatively any congressional intent to repeal the VPA. “Indeed, as

explained above, there is ample independent evidence that the legislative intent was

to the contrary. This is a prototypical case where an adjudication of repeal by

implication is not appropriate.

[8.] The preference is a longstanding, important component of the

Government's [veterans’ assistance] program. In the absence of some affirmative

showing of an intention to repeal, the only permissible justification for a repeal by

implication is when the earlier and later statutes are irreconcilable”.

30

(9). The rules of statutory construction that the Board is “quite familiar with”

28 See also Isabella v. Department Of State, 109 M.S.P.R. 453 ¶ 13, 2008.

29 See PPP # 11 at http://www.mspb.gov/ppp/ppp.htm.

30 Cf. Morton and Isabella 109 M.S.P.R. 453, ibid.

Page 13
would not allow it to choose between giving effect on the one hand to 5 U.S.C. §

31

2302(e)(1) and on the other to 5 U.S.C. 3330a, “for the statutes do not pose an

either­or proposition”. The former statute apply to veterans preference

requirements, while the latter applies to their enforcement. Cf. Connecticut Nat.

Bank v. Germain, 503 US 249, 253 ­ Supreme Court, 1992.

(10). Finally, Section 2302(e)(1)(A) enumerates Section 7701 as a “veterans

preference requirement”, which violation constitutes a prohibited personnel action.

Section 7701(c)(2), in turn, incorporates Section 2302, as a basis to overturn the

agency decisions. Therefore, Board’s failure to comply with Section 7701

requirements is prohibited by both VEOA and CSRA, see 5 U.S.C. 7703(c).

c. As far as the Board’s reliance on its decision in Goldberg v. Department

of Homeland Security, 99 M.S.P.R. 660, ¶ 11 (2005) concern, that reliance was

misplaced, because the Board dismissed the VEOA part of that appeal for lack of

jurisdiction. See Id at 10. Thus, the decision does not stand for the proposition that

in a valid “VEOA appeal, the Board lacks authority to adjudicate an appellant's

affirmative defense under 5 U.S.C. 7701(c)(2)”, as the Board so apparently

suggested. See the Register at p. 18659.

3. The Board Lacked A Delegated Authority to Overrule 5 CFR

1201.56 rules in VEOA appeals.

a. “5 CFR 1201.56 currently provides ...that the appellant will prevail if he or

she can establish a successful affirmative defense under 5 U.S.C. 7701(c)(2)

(specifically, that the agency action was based on a harmful procedural error,

31 See Chairman Grundmann testimony, infra.

Page 14
constituted a prohibited personnel practice, or was not in accordance with law)”.

32

The Board has not applied this regulation in any VEOA appeal. In fact, it found its

application to VEOA, USERRA and IRA appeals to be “anomaly”. Hence is the

33

reason why it piecemealed all of Mr. Donaldson's appeals.

34

b. In anyway, “the Board lacked authority to overrule section 1201.[56] by

adjudication. That conclusion does not foreclose the Board from repealing the rule

in accordance with section 553(b). However, for purposes of the present case, the

Board must adhere to its legislative rule.”

c. “So long as this [1201] regulation remains in force the Executive Branch is

bound by it, and indeed the United States as the sovereign composed of the three

branches is bound to respect and to enforce it”. Cf. Tunik, supra at 1341.

d. Therefore, by “attempting to overturn its regulation through adjudication”

in Mr. Donaldson and other appeals the Board had contravened what its “reviewing

court’s precedential decision” held in Tunik, ibid. Surely, the Board could not have

meant what its opinions stated. Say it ain't so, Board members.

35

4. The Board Current Regulations at 5 CFR 1208.13(b) & 23(b) and

Proposed Regulations 1201.56 and .57 Are Invalid.

a. The second clause of 5 U.S.C. 2302(e)(1)(H) effectively states that a

“regulation that implements a provision of law referred to in any of the preceding

subparagraphs” is a “veterans preference requirement.” Since 5 CFR 1201.56

32 See Federal Register, Doc. # 2014­07443, supra,at 18659.

33 Ibid.

34 See Donaldson v. Department of Homeland Security, 2012­3106, Part III, B, Federal Circuit, 2012.

35 Cf. Carver, ibid.

Page 15
implements provisions of 5 U.S.C. 7701, which is listed in 5 U.S.C. 2302(e)(1)(A),

it is also a “veterans preference requirement.”

b. Because “it is now A PROHIBITED PERSONNEL PRACTICE TO

TAKE ANY ACTION THAT WOULD VIOLATE VETERANS PREFERENCE",

and because the Board current regulations at 5 CFR 1208.13(b) and 23(b) and

36

proposed ones at 1201.56 and .57 provide “lesser protections ... Congress

guaranteed these veterans” in 5 U.S.C. 7701, those regulations are invalid. Cf.

Gingery v. Department of Defense, 550 F. 3d 1347, 1354 ­ Federal Circuit, 2008.

c. “This conclusion is buttressed by the legislative history of the Veterans

Preference Act, which clearly demonstrates that Congress intended to limit the

power of the executive branch to regulate in this area if such regulations resulted in

the derogation of the rights and protections afforded to preference eligibles in

federal employment.” See Lowe v. Department of Agriculture, p. 9, MSPB, 1984

(NP).

5. The Board Must Examine All Personnel Actions Giving Rise To

Prohibited Personnel Practices.

a. Article II vests "[t]he executive Power ... in a President of the United

States of America," who must "take Care that the Laws be faithfully executed." In

light of "[t]he impossibility that one man should be able to perform all the great

business of the State," the Constitution provides for executive officers to "assist the

supreme Magistrate in discharging the duties of his trust." See Free Ent. Fund v.

PCAOB, 130 S. Ct. 3138, 3146 ­ Supreme Court, 2010. Internal citations omitted.

b. The Board members are executive officers under 5 U.S.C. 1201 and

36 See Abell v. Department of Navy, 343 F. 3d 1378, 1381 ­ Federal Circuit, 2003.

Page 16
therefore they have that constitutional duty to “take Care that the Laws be faithfully

executed”. In addition to that, they have contractual duties to (a) “discharge ...

responsibilities with integrity and in accordance with law, rule, and regulation.. in

particular, (b) “do everything that is necessary to come to a full understanding of

the elements of causes of action and claims that arise under each of those statutes,

[c] engage in extensive research and analysis with regard to those claims” and (d)

37

ensure that people “know what the law says and how it applies to men and women

who are leaving their jobs with the Federal Government and going to serve their

country”.

38

c. In carrying out those duties, “the Board must examine personnel actions”,

which includes “an appointment” under 5 U.S.C. § 2302(a)(2)(A)(i). The statute

39

further provides that “any employee who is authorized to take or approve personnel

actions shall not ...knowingly take, recommend, or approve any personnel action if

the taking of such action would violate a veterans’ preference requirement; or (B)

knowingly fail to take, recommend, or approve any personnel action if the failure to

take such action would violate a veterans’ preference requirement”. Id. §

2302(b)(11). Thus, the statute covers the "failure" to make an "appointment" in the

federal service when that action would violate any veterans preference requirement.

Cf. Ruggieri v. Merit Systems Protection Bd., 454 F. 3d 1323, 1326 ­ Federal

Circuit, 2006.

d. (1) Mr. Donaldson’s argument, for example, was similar to that of Mr.

Ruggieri. He essentially contended that when he was not selected for the advertised

37 See Vice­Chairman Wagner’s testimony at the Senate Hearing 111­452 at p. 6.

38 See Member Robbins’ testimony at Senate Hearing 112­527, p. 9, on March 66, 2012.

39 See Chairman Grundmann testimony, ibid.

Page 17
position under the first vacancy announcement, the action of not selecting him

constituted the failure “to take . . . a personnel action," 5 U.S.C. § 2302(b)(11), to

wit, an "appointment," id at § 2302(a)(2), within the meaning of the VEOA. Cf.

Ruggieri, ibid.

(2) He therefore contended that the Board improperly dismissed his VEOA

appeal “on jurisdictional grounds and instead should have addressed the merits of

his claim that the agency took that action for prohibited reasons.” Ibid.

40

(3) The government apparently took the position that even though he “was

not selected under the first vacancy announcement, there was not a failure to

appoint him, because the vacancy announcement was canceled and no one was

appointed to the position. In the government's view, an agency does not fail to

appoint an applicant when it cancels the vacancy announcement under which the

applicant applied.” Ibid.

(4) The government apparently argued “that the failure to appoint occurs only

when the agency appoints someone else to the position sought by the applicant.

Although the Board has addressed this issue on several occasions...” Ibid.

(5) “The Board's decisions characterize "nonselection for a position" as a

qualifying "fail[ure] to take . . . a personnel action" within the meaning of the ...Act

but they define nonselection narrowly, recognizing such a claim only if the position

in question is ultimately filled by someone other than the complainant.” Ibid.

(6) “The Board's position on this issue reflects an unduly narrow

construction of the statutory language "fail to take . . . a personnel action." The

[VEOA] does not state that the failure to select an applicant for employment cannot

be actionable unless someone else is selected for the position in the applicant's

40 See Mr. Donaldson’s petition at p. 8.

Page 18
place.” Ibid.

(7) “If the statute defined a failure to make an appointment as the act of hiring

another applicant in place of the complainant, the Board's construction would have

force. But it does not. It provides that an appointment is a personnel action and that

a failure to make an appointment is a trigger for” VEOA appeal.” Ibid.

(8) “To endorse the Board's interpretation of the statute would immunize an

agency's decision not to hire a [veteran], so long as the agency was willing simply

not to fill the position for which the [veteran] had applied, even if the agency's

conduct was plainly motivated” by the petitioner’s protected status. Ibid.

41

(9) “This case illustrates the potential mischief that could be caused by the

Board's interpretation. For purposes of the jurisdiction..., the administrative judge”

should have accepted his allegations that the agency declined to hire him because of

his status protected by section 2308(b)(11). Ibid.

(10) The Board's position, however, is that he is entitled to no relief under the

VEOA “because the agency, even though it rejected his application and did not

appoint him, did so by canceling the vacancy announcement rather than appointing

a different applicant to the position.” Ibid.

42

(11) “Thus, under the Board's interpretation of the Act, the agency could

lawfully refuse to hire an applicant because of” his veterans’ status, as long as it did

not hire a different applicant under the particular vacancy announcement in which

the veteran applied. Ibid.

(12) “Nothing in the statutory language or the underlying purpose of the Act

41 See Donaldson v. Department of Homeland Security, 2012­3106, Part III,A, Federal Circuit, 2012,

where the court conceded that the agency blatantly passed over the petitioner in favor of non­veterans.

42 See Donaldson v. Department of Homeland Security, p. 3, MSPB, March 30, 2012 (NP).

Page 19
suggests that Congress intended to endorse such a formalistic restriction on the

type of agency action that would trigger the ...Act. This is not to say that any delay

in making an employment decision would qualify as a failure to take a personnel

action within the meaning of the Act.” Ibid.

(13) It is “often more difficult to determine when an agency has failed to take

a personnel action than when it has taken a personnel action. For that reason, the

Board has stated in an analogous setting that the failure to make an appointment

must manifest itself as a "concrete matter that can be taken or done by an agency

and reviewed (and undone) by the Board." Ibid.

(14) However, “with the Board's suggestion in this case that the only way to

define nonselection as a concrete matter failing within the scope of the Act is by

restricting it to cases in which an agency has hired someone other than the

complainant for an announced vacancy.” Ibid.

(15) “Instead, the agency must take some identifiable step that constitutes a

decision not to hire the complainant. That step may be the hiring of another person

in the applicant's stead, but it need not be. In this case, the agency plainly took such

a step, as it decided to terminate the hiring process that it had put into effect, by

canceling the vacancy announcement.” Ibid.

(16) “The agency's conduct in this case is sufficient, under the plain language

of the statute, to constitute a "fail[ure] to take . . . a personnel action." Ibid.

Including such conduct within the reach of VEOA is consistent with Congress's

purpose to protect veterans from a wide variety of actions taken against them,

43

such as a “Manipulation of the Category Rating Process”.

44

43 See e.g H.R. 105­675, 1996, supra.

44 See “Review of Allegations Regarding Prohibited Personnel Practices at the Bonneville Power

Page 20
(17) In the light of VEOA’s congressional purpose reflected in the broad

statutory language, as well as H.R. 105­675, 1996, supra, the Board should have

concluded that his evidence regarding his nonselection for the position is sufficient

to satisfy the requirement that an appellant in such case make a nonfrivolous

allegation that the agency has failed to take a personnel action under 5 U.S.C. 2302.

Ibid.

e. Therefore, by agreeing that “the Board does not have jurisdiction to

consider the merits of the underlying action” in Mr. Donaldson’s VEOA appeal,

supra, p.4, the Board has contravened what its ”reviewing court’s precedential

decision” in Lazaro v. Department of Veterans Affairs 666 F. 3d 1316, 1320 ­

Court of Appeals, Federal Circuit 2012, a month before held: “If the position urged

by the Government, and accepted by the AJ and the Board, was correct, a veteran

could never assert a claim within the jurisdiction of the Board because the only way

to determine whether the agency violated the veteran's preference rights would be to

analyze whether the agency properly took the veteran's preference rights into

account when making its personnel decision, i.e., examining the merits of the

agency's decision. There is simply no way to analyze whether a veteran's preference

rights were violated without examining the grounds upon which the veteran's

non­selection was predicated.” Surely, the Board could not have meant what it

stated in its decision. Say it ain’t so, Board members.

6. The Board Is Responsible For Protecting Veterans Constitutional

Rights.

a. “The Pendleton Act of 1883 replaced the political patronage system that

Administration”, DOE/IG Report 0895 at p.11.

Page 21
had existed until that time with a merit­based system for filling most civil service

positions. The drafters of the Civil Service Reform Act of 1978 believed that this

merit­based system had broken down over the ensuing century. Thus, they

codified the merit principles and created a new agency, the Merit Systems

Protection Board, as the "vigorous protector of the merit system." One of the merit

system principles states that “[a]ll employees and applicants for employment should

receive fair and equitable treatment in all aspects of personnel management ... with

proper regard for their privacy and constitutional rights.”

45

b. In a case of “a former government employee claiming that he is entitled to

due process of law in hearing procedures wherein he is contesting his non­selection

[t]here is no claim ... of an abstract right to a government position. [It] is under

legislative protection. The vehicle is the Veterans' Preference Act. See Fitzgerald v.

Hampton, 467 F. 2d 755, 762 ­ District of Columbia, 1972.

c. In the case of a veteran seeking initial employment, who “has the highest

numerical rating on the list, the agency must appoint that individual, unless the

agency seeks and receives from the Office of Personnel Management ("OPM")

written authority to appoint someone ranking below the veteran. 5 U.S.C. §

3318(b); see Scharein v. Dep't of Army, 91 M.S.P.R. 329, 334 (2002).”

46

d. “It may be argued that to provide procedural due process to all public

employees or prospective employees would place an intolerable burden on the

machinery of government. The short answer to that argument is that it is not

burdensome to give reasons when reasons exist. Where there are numerous

applicants for jobs, it is likely that few will choose to demand reasons for not being

45 See 5 U.S.C. 2301(b)(2).

46 See Joseph v. FTC, 505 F. 3d 1380, 1382 ­ Federal Circuit, 2007. Emphasis supplied.

Page 22
hired. But, if the demand for reasons is exceptionally great, summary procedures

can be devised that would provide fair and adequate information to all persons. As

long as the government has a good reason for its actions it need not fear disclosure.

It is only where the government acts improperly that procedural due process is truly

burdensome. And that is precisely when it is most necessary.

[e] It might also be argued that to require a hearing and a statement of

reasons is to require a useless act, because a government bent on denying

employment to one or more persons will do so regardless of the procedural hurdles

that are placed in its path. Perhaps this is so, but a requirement of procedural

regularity at least renders arbitrary action more difficult. Moreover, proper

procedures will surely eliminate some of the arbitrariness that results, not from

malice, but from innocent error. "Experience teaches . . . that the affording of

procedural safeguards, which by their nature serve to illuminate the underlying facts,

in itself often operates to prevent erroneous decisions on the merits from

occurring." When the government knows it may have to justify its decisions with

sound reasons, its conduct is likely to be more cautious, careful, and correct.”

47

Needless to say that it is the Board’s responsibility to ensure that such justification

is forthcoming. See 5 CFR 1201.56.

7. The Board and its Reviewing Court Have Been Consistently

Denying Veterans the Due Process of Law.

a.(1) “Our Constitution provides that no person shall be "deprived of life,

liberty, or property, without due process of law." The four words—due process of

47 See Board of Regents of State Colleges v. Roth, 408 US 564, 591 ­ Supreme Court, 1972. Internal

citations omitted.

Page 23
law—have been the center of substantial legal debate over the years. See Chambers

v. Florida, 309 U. S. 227, 235­236, and n. 8 (1940).

[2] Some might think that the words themselves are vague. But any possible

ambiguity disappears when the phrase is viewed in the light of history and the

accepted meaning of those words prior to and at the time our Constitution was

written.

[3] "Due process of law" was originally used as a shorthand expression for

governmental proceedings according to the "law of the land" as it existed at the

time of those proceedings. Both phrases are derived from the laws of England and

have traditionally been regarded as meaning the same thing...

[4] Our ancestors' ancestors had known the tyranny of the kings and the rule

of man and it was, ... in order to insure against such actions that the Founders

wrote into our own Magna Carta the fundamental principle of the rule of law, as

expressed in the historically meaningful phrase "due process of law”. See In re

winship, 397 US 358, 384 ­ Supreme Court 1970. Emphasis added.

b. (1) When a tribunal assumes for itself the power to deprive a petitioner of

a federal right “our Nation ceases to be governed according to the "law of the land"

and instead becomes one governed ultimately by the "law of the judges." Ibid.

(2) When the tribunal chooses to do so without following its established

precedents it also deprives the petitioner and “the public of the stability and

predictability essential to the effort of a free society to live under a rule of law.”

48

(3). Indeed, "[t]he very essence of civil liberty," wrote Mr. Chief Justice

Marshall in Marbury v. Madison, 1 Cranch 137, 163 (1803), "certainly consists in

the right of every individual to claim the protection of the laws, whenever he

48 See South Corp. v. U.S. 690 F.2d 1368, 1371 ­ Federal Circuit, 1982.

Page 24
receives an injury. One of the first duties of government is to afford that

protection".

c. In its Senate Report 95­969, p.30, the Congress stated that : “PARAGRAPH

(1) OF THE SUBSECTION AUTHORIZES THE BOARD TO HEAR AND ADJUDICATE ALL

MATTERS WITHIN THE JURISDICTION OF THE BOARD, INCLUDING MATTERS

FALLING UNDER THIS TITLE, UNDER SECTION 2023 OF TITLE 38 (RELATING TO

VETERANS' REEMPLOYMENT RIGHTS), AND UNDER ANY OTHER LAW, RULE, OR

REGULATION..”

(1) In Noble, supra at 1017, the Court “agreed with the thrust of the

subsequent MSPB report that .... all employees in government are subject to the

rights of preference eligibles. See 5 U.S.C. § 1302 (1988); 5 C.F.R. § 1201.3(a)(13).

The order concedes this. [It] held that it was error by MSPB not to consider

Noble's claim on the merits under the VPA, the applicable statutes, and regulations.

[I] simply remanded with direction that it do so.”

The en banc Court, however, affirmed the Board’s decision denying

“jurisdiction over Noble's VPA reemployment rights”. Id at 1015. In this case the

Board and the en banc Court had demonstrated their refusal to fulfill their

constitutional duties on protecting veterans rights that Chief Justice Marshall spoke

about in Marbury, supra. The Congress’ response to those decisions was

enactment of VEOA in 1998. See 5 U.S.C. 3330a.

(2 ) In Campion v. MSPB, 326 F. 3d 1210 ­ Federal Circuit, 2003, the Court

had affirmed the Board’s decision (a) “dismissing his appeal from his nonselection

for certain Senior Executive Service ("SES") positions for lack of jurisdiction”,

(b) although the legislative history of VEOA, that the petitioner relied upon,

clearly shows “that Congress intended to extend § 3330a's right of appeal to both

Page 25
groups of veterans described in § 3304(f)(1)” : “Any preference eligible or other

49

individual described in section 3304(f)(1) who alleges that an agency has violated

such individual's rights under any statute or regulation relating to veterans'

preference, or any right afforded such individual by section 3304(f), may file a

complaint with the Secretary of Labor.” See H.R. 105­240, Section 4, (1997).

(c) In response to those decisions, Congress corrected its technical error in

Pub. L. 108–454 by adding subparagraph (b) to 5 U.S.C. 3330a(a)(1), see Id,

Amendments.

(3)(a) In 5 U.S.C. 1302(b), Congress directed the OPM to “prescribe and

enforce regulations for the administration of the provisions of this title, and

Executive orders issued in furtherance thereof, that implement the Congressional

policy that preference shall be given to preference eligibles in certification for

appointment, and in appointment, reinstatement, reemployment, and retention, in

the competitive service in Executive agencies, permanent or temporary, and in the

government of the District of Columbia.” Emphasis added.

(b) In Joseph v. FTC, 505 F. 3d 1380, 1381 ­ Federal Circuit, 2007, the

Board had (i) nevertheless rejected the veterans contention “that the agency's

procedure in filling the vacancy denied him his veterans' preference rights”, as the

Court did.

(ii) The Court further noted that “[t]he 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.

(iii) The Court then concluded that “Veterans' point preferences under the

competitive appointment process do not apply in the merit promotion process.

49 See Campion, supra at 1214.

Page 26
Perkins, 100 M.S.P.R. at 51. Congress has provided, however, that "for all merit

promotion announcements . . . veterans . . . are eligible to apply." 5 U.S.C. §§

3304(f)(3)­(4). Veterans "may not be denied the opportunity to compete for vacant

positions for which the agency making the announcement will accept applications

from individuals outside its own workforce under merit promotion procedures." 5

U.S.C. § 3304(f)(1). Congress further provided, however, that the latter provision

does not "confer an entitlement to veterans' preference that is not otherwise

required by law." 5 U.S.C. § 3304(f)(3).” Ibid.

(c) As initial matter, it would be worth noting that (i) a statutory interpretation

is a question of law that the Court was supposed to review de novo. Indeed, a

“court does not fulfill its duty to "say what the law is" by merely agreeing to an

agency's interpretation of the statutory provision at issue if it is "reasonable." See

Pitsker v. Office of Personnel Management, 234 F. 3d 1378, 1381 ­ Federal Circuit,

2000.

ii. It “must first carefully investigate the matter to determine whether

Congress's purpose and intent on the question at issue is judicially ascertainable."

"If a court, employing traditional tools of statutory construction, ascertains that

Congress had an intention on the precise question at issue, that intention is the law

and must be given effect." Ibid.

iii. “All statutes must be construed in the light of their purpose." "To discern

Congress' intent [the Court must] examine the explicit statutory language and the

structure and purpose of the statute." Ibid.

iv. Thus, it must "find that interpretation which can most fairly be said to be

imbedded in the statute, in the sense of being most harmonious with its scheme and

with the general purposes that Congress manifested." Ibid.

Page 27
v. It must “look not only to the particular statutory language, but to the

design of the statute as a whole and to its object and policy." Ibid.

(d) Thus, if the Court did “carefully investigate the matter to determine

whether Congress's purpose and intent on the question at issue is judicially

ascertainable”, it would have found the following matters:

(i) the word “Promotion means a change of an employee, while serving

continuously within the same agency”, see 5 CFR 210.102(b)(11),

(ii) the Board’s application of OPM regulation regarding “the merit

promotion process” to the petitioner’s case was not justified, “because he was a

Board” and not “the same agency” employee, Joseph, ibid,

(iii) the legislative history of 5 U.S.C. 3304(f)(1) stating that “No preference

eligible, and no individual (other than a preference eligible) ...shall be denied the

opportunity to compete for an announced vacant position within an agency, in the

competitive service or the excepted service, by reason of ­ (A) not having acquired

competitive status; or (B) not being an employee of such agency”, see H.R.

105­240, ibid,

(iv) provision of 5 U.S.C. 3304(f)(1) to be inapplicable to this case, because

the petitioner was a federal employee “who has "status" in the competitive service”

and who would be eligible for a “Career or Career­Conditional Employment

50

From Registers” or “...By Transfer” even in the absence of that statute,

51 52

(v) the legislative history of 5 U.S.C. 3304(f)(3) stating that “Nothing in this

subsection shall prevent an agency from filling a vacant position (whether by

50 See Joseph, ibid.

51 See 5 CFR 315.301.

52 See Id at 315.501 (1995).

Page 28
appointment or otherwise) solely from individuals on a priority placement list

consisting of individuals who have been separated from the agency due to a

reduction in force and surplus employees (as defined under regulations prescribed

by the Office)”,

53

(vi) provision of 5 U.S.C. 3304(f)(3) was inapplicable to the petitioner’s case

as well, because the “agency elected to choose a candidate from the merit

promotion certificate, and conducted interviews with the candidates listed on the

certificate, including the appellant selecting official ultimately chose Ms. Thomas, an

internal candidate” and there was indication that she was entitled for a priority

54

consideration or a surplus employee,

(vii) the plain language of 5 U.S.C. 3304(f)(3), when read in conjunction with

(f)(1) meant that it was not conferring an entitlement to veterans' preference to a

non­preference eligible veteran, such as the one described in Campion, supra at

1214,

(viii) provision of 5 U.S.C. 3304(f)(3) was also inapplicable to the

petitioner’s case, because he was entitled for a 10 point preference under 5 U.S.C.

3309(1) and to the appointment under 5 U.S.C. 3318(a) that the Court had cited,

(ix) to the extent that the Board relied on 5 U.S.C. § 3304(f) to describe the

intersection of that statute with 5 U.S.C 3309­3318, “its views are entitled to no

particular deference”, because all of those statutes fall outside of the Board’s area

55

of expertise and fall squarely within the OPM’s express authority,

56

53 See H.R. 105­240, ibid.

54 See Joseph v. Federal Trade Commission, 103 M.S.P.R. 684 ¶ 4, 2006.

55 Cf. James v. Von Zemenszky, 284 F. 3d 1310, 1320 ­ Federal Circuit, 2002.

56 See Patterson v. Department of Interior, 424 F. 3d 1151, 1156 ­ Federal Circuit, 2005.

Page 29
(x) the relevant OPM regulation did not interpret provision of 5 U.S.C.

3304(f) to mean that “Veterans' point preferences under the competitive

appointment process do not apply in the merit promotion process”, see 5 CFR

315.611 (2000),

(e) The Court had finally concluded that (i) “statutory and regulatory

provisions defining veterans' rights in seeking and obtaining federal employment

require rejection of” petitioner’s contention” without actually pointing to those

provisions, (ii) the “addition of points to a veteran's score because of his status

applie[d] only in the open competition examination process and not in the merit

appointment process”, which is nowhere to be found in neither the legislation nor

OPM regulations (iii) the agency to hire the non­veteran in a direct contravention of

5 U.S.C. 3309(1) and 3318(a) statutory requirements.

(f) To the extent that both the Board and the Court had relied on each other’s

decisions in Perkins, supra and Brown v. Department of Veterans Affairs, 247 F

3d. 1222 ­ Federal Circuit, 2001, that reliance was misplaced: “Brown involved

internal applicants for promotions, and the court stated broadly “that veterans are

not accorded any preference under the VPA [Veterans Preference Act] when

seeking promotion or intra­agency transfers.” Emphasis added. See Perkins, supra

¶ 17. It did not involve an external applicants’ right for a veterans preference under

the merit promotion announcement, however. Cf. Perkins, supra at ¶ 19.

(g) Therefore, by holding that (i) an external and disabled applicant “was

57

given an opportunity to compete for the position, he was properly afforded the

veterans’ preference rights to which he was entitled and was, therefore, not entitled

to corrective action” in Keith Madore v. Department of the Air Force, p.3, 2013

57 See Feds Data Center, 2012.

Page 30
(NP), Member Robbins, who had previously served as an OPM General Counsel,

58

contravened his previous opinion to the effect that:

(ii) “Agencies are required to fill vacancies by appointing to the position one

of the highest three eligibles on the certificate produced by OPM. See 5 U.S.C. §

3318(a).

[iii] Veterans are considered "preference eligibles," see 5 U.S.C. § 2108, and

an appointing authority may not pass over a preference eligible on a certificate to

select an individual who is not a preference eligible without the approval of OPM. 5

U.S.C. § 3318(b)(1).” See Evans v. US Office of Personnel Management, 276 F.

Supp. 2d 34, n.1 ­ Dist. Court, Dist. of Columbia, 2003.

v. Surely, he could not have meant to agree with the rest of Board members

in this case. Say it ain’t so, Member Robbins.

8. The Board and Its Reviewing Court Have Been Consistently Denying

Veterans an Equal Protection of Law As Well.

“The Fifth Amendment provides that "[n]o person shall be... deprived of life,

liberty, or property, without due process of law... " In numerous decisions,

[Supreme] Court "has held that the Due Process Clause of the Fifth Amendment

forbids the Federal Government to deny equal protection of the laws.”

59

a. “THE COMMITTEE INCLUDED A PROVISION (IN SUBPARAGRAPH (B) OF THIS

SUBSECTION) MAKING EXPLICIT THE BOARD'S ENFORCEMENT AUTHORITY. THE

BOARD IS AUTHORIZED TO ORDER ANY FEDERAL AGENCY OR EMPLOYEE TO

COMPLY WITH ANY ORDER OR DECISION ISSUED BY THE BOARD PURSUANT TO

58 See http://www.mspb.gov/About/members.htm.

59 See e.g. Davis v. Passman, 442 US 228, 234 ­ Supreme Court, 1979.

Page 31
ANY MATTER WITHIN ITS JURISDICTION, AND TO TAKE APPROPRIATE STEPS TO

ENFORCE COMPLIANCE WITH ITS ORDER.” See Senate Report 95­969, ibid.

(1) In its one paragraph analysis of another veteran’s appeal for a corrective

action in Melendez v. Puerto Rico National Guard, 70 M.S.P.R. 252, p.2, 1996, the

Board had nevertheless held that:

(a) “the Puerto Rico National Guard is not a federal entity and because the

adjutant general is not a federal employee, the Board has no authority to enforce its

decision in this case”,

60

(b) although it previous precedent held that “National Guard technicians are

employees of an agency in the executive branch” and therefore, subject to the

Board’s compliance orders,

61

(c) although it did not determine the names of either the appropriate agency

that took or failed to take the disputed personnel action or the official responsible

for compliance with its orders. It simply presumed all the facts in this case.

(d) However, in its lengthy opinion regarding what appears to be non­veteran

employees’ appeals in Washington v. Department of the Navy, 115 M.S.P.R. 599 ¶

16, 2011 and Raymond v. Department of the Navy, 116 M.S.P.R. 223 ¶ 29, 2011,

the Board took diametrically opposite steps:

(e) it independently found that “Capt. Thomas Luscher is the Executive

Officer of the Naval Air Station Joint Reserve Base where the appellant works.

Accordingly, we find that Capt. Luscher is the agency’s official responsible for

compliance with the Board’s order. See 5 C.F.R. § 1201.183(a)(2)“, ibid,

(f) although, as an Executive Officer, he could not have been the highest

60 See Melendez v. Puerto Rico National Guard, 70 M.S.P.R. 252, p.2, 1996. Emphasis added.

61 See Sanford v. Connecticut National Guard, 50 M.S.P.R. 120, pp. 4 & 7 , 1991.

Page 32
ranking appropriate agency official, as the highlighted Board regulation requires it,

because that title belonged to his Commanding Officer,

62

(g) it also warned to “impose sanctions for the agency's noncompliance in

this case. 5 C.F.R. § 1201.183(b)”, although Captain Luscher “was a member of

63

the uniformed services and thus explicitly excluded from the definition of

“employee” in section 2105(a)(1)".

64

(h) Thus, the Board went above and beyond the reach of law to protect the

two agency employees’ rights by (i) identifying an other than highest ranking agency

official to be responsible for compliance with its orders (ii) in other the respondent

agency in the case and (iii) threatening to impose fiscal sanctions on an other than a

federal employee.

(2) In a restoration claim of another previously discharged agency employee

the Board in Tubesing v. Department of Health and Human Services, 115 M.S.P.R.

327 ¶ 34, 2010, the had stated that:

(a) “[a]t no point before the Board has the agency identified the official

responsible for full compliance. We determined that Daniel Sosin, Acting Director

of the Office of Public Health Preparedness and Response, is the agency official

responsible for compliance. 5 C.F.R. § 1201.183(a)(2)”,

62 See http://www.cnic.navy.mil/jrborleans/About/Command/Biographies/index.html.

63 “The Board's authority to impose sanctions includes the authority to order that the responsible agency

official “shall not be entitled to receive payment for service as an employee during any period that the

order has not been complied with.” 5 U.S.C. § 1204(e)(2)(A).” See Raymond, ibid.

64 See e.g. OSC ex. el. Paul Hardy v. Department of Health and Human Services, 117 M.S.P.R. 174

at 7, 2011, where the Board dismissed another ex­service member’s appeal.

Page 33
(b) although, as in Melendez, ibid, it could have equally concluded that since

“Department of Health and Human Services” was a respondent agency in this case

and since its Secretary, as Board members, was appointed by the President by and

with the advice and consent of the Senate, the Board had no authority to enforce its

decision in this case,

65

(d) The comparative analysis of these three cases shows that the Board

would do little to nothing to afford the protection of law to a veteran, although it

was "obligated to follow precedent, and if it chooses to change, it must explain

why”. At the same time the Board would go above and beyond to protect the

66

rights of “employees who have been discharged for misconduct”. Cf Kirkendall,

ibid.

b. In another apparently non­veteran’s appeal for corrective action the Board

in Von Zemenszky v. Department of Veterans Affairs, 80 M.S.P.R. 663 ¶ 7, 1999,

af ’d, James v. Von Zemenszky, 284 F. 3d 1310 ­ Federal Circuit, 2002 the Board

determined that:

(1) “The Title 38 statutory provisions governing employees of the agency's

Veterans Health Administration do not foreclose the Board's exercise of RIF

jurisdiction over this appeal” under provisions of the Veterans Preference Act of

1944.

(2) However, in reviewing a veteran’s appeal in Scarnati v. Department of

Veterans Affairs, 344 F. 3d 1246, 1248 ­ Federal Circuit, 2003, the Board, through

its administrative judge, held a diametrically opposite position:

65 See 5 U.S.C. 1204(e)(2)(a).

66 "See Schucker v. FDIC, 401 F. 3d 1347, 1354 ­ Federal Circuit, 2005.

Page 34
(a) “that appointments to the VHA made under 38 U.S.C. § 7401(1),

including the appointments of physicians, are not subject to Title 5 of the United

States Code. Therefore, the AJ determined, the provisions of the VEOA, which is a

part of Title 5, do not apply to non­selections for positions listed in § 7401(1).

Accordingly, Dr. Scarnati had no right of appeal to the Board under the VEOA.”

(b) The Court having found “conclusive support” in 38 U.S.C. 7425 titled

“Employees: laws not applicable”, emphasis added, agreed with the Board and held

“that any requirements under Title 5 relating to the civil service appointment process

that are different from the Title 38 appointment requirements, including the redress

procedures in 5 U.S.C. § 3330a, would be by definition "inconsistent" with the Title

38 appointment process”.

(c ) In Casman v. United States, 181 F. Supp. 404, 408 Court of Claims ,

1958, the Court’s predecessor had already provided the “short answer to this

contention is that plaintiff was not [an agency] employee. What could happen if and

when plaintiff [was appointed] is entirely another question and one [the court was]

not called upon to answer here.”

(d) The longer answer to that justification is that (a) none of the enumerated

Title 5 subchapters under 38 U.S.C. 7425(a)(1) lists the subchapter I of chapter 33

of title 5 that governs the disputed issues of the veterans substantive and appellate

rights. “Where Congress explicitly enumerates certain exceptions to a general

prohibition, additional exceptions are not to be implied, in the absence of evidence

of a contrary legislative intent.” See Andrus v. Glover Constr. Co., 446 US 608,

617 ­ Supreme Court, 1980.

67

(e) Moreover, none of the Title 38 Chapter 74 provisions, upon which the

67 See also Aguzie v. Office of Personnel Management, 116 M.S.P.R. 64, ¶ 12, 2011.

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Court relied, deals with the disputed “selection from certificates” for the position

Dr. Scarnati sought under 5 U.S.C. 3318(a). They rather deal with applicants

“qualifications” for the same. See e.g. 38 U.S.C. 7401(a)(1).

(f) Therefore, Morton rules have force in this case more than they did in

Morton itself: “The courts are not at liberty to pick and choose among

congressional enactments, and when two statutes are capable of co­existence, it is

the duty of the courts, absent a clearly expressed congressional intention to the

contrary, to regard each as effective. "When there are two acts upon the same

subject, the rule is to give effect to both if possible . . . . The intention of the

legislature to repeal `must be clear and manifest.” Emphasis added. See Morton,

ibid.

(g) Furthermore, according to “OPM own guidance, to which the Board has

deferred”: “Unlike other laws, rules and regulations governing Federal human

68

resource management, veterans' preference requirements apply to all executive

agencies, including those not covered by Title 5 or that operate alternative personnel

systems”, which is consistent with the Board’s own prior position on this issue

69

expressed in “MSPB report .... all employees in government are subject to the

rights of preference eligibles”, Noble, supra at 1017.

(h) Thus, the Court had neither (i) explained why and by what “definition” the

two system “would be inconsistent” (ii) nor deferred to OPM guidance (iii) nor

referred to its prior case in Noble, supra at 1017 (iv) nor pointed to an evidence of

a legislative intent to support its conclusion.

(i) Furthermore, according to the Court’s own precedent, the Board "had

68 See Dean v. OPM, 115 M.S.P.R. 157, n. 11, 2010.

69 See DETAILED INFORMATION ON THE MERIT SYSTEM COMPLIANCE ASSESSMENT.

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jurisdiction to hear the matter in the first instance—that is, subject­matter

jurisdiction existed—as long as the petitioner asserted nonfrivolous claims”. Cf.

Spruill v. Merit Systems Protection Board, 978 F.2d 679, 687 (Fed. Cir. 1992).

(j) However, the Court did not hold that petitioner failed to non­frivolously

allege the Board’s jurisdiction under 5 U.S.C. 3330a. It did not “show a clearly

expressed congressional intent contrary to the text of the statute” either. See

Campion, supra at 1214.

(k) Furthermore, the provision of 38 U.S.C. § 7403(a)(1), which the Court

had also relied upon, expressly states that “[i]n using the authority provided by this

subsection, the Secretary shall apply the principles of preference for the hiring of

veterans and other persons established in subchapter I of chapter 33 of title 5.” See

Id at (g)(1).

(l) “Since courts must strive to give effect to each subsection contained in a

statute, indeed, to give effect to each word and phrase”, the Court had to refuse to

follow a course that ineluctably produces judicial nullification of an entire

subsection. See United Technologies, Inc. v. Browning­Ferris Industries, Inc., 33

F. 3d 96, 101­1st Circuit, 1994.

(m) Thus, the Court’s decision in Scarnati violated the separation of powers,

for "so long as Congress acts within its constitutional power in enacting a .. statute,

[courts] must give effect to Congress' expressed intention concerning the scope of

conduct prohibited." See US v. Lynch, supra, ibid.

(n) As far as the Court’s reliance on Khan v. United States, 201 F.3d 1375,

Federal Circuit 2000 concern, that reliance was misplaced, because the court’s

decision in Khan was based on Mr. Fausto’s removal appeal, who was “a

non­preference eligible in the excepted service...Like the appellant in Fausto, Dr.

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Khan falls within a special category of employee that has been specifically excluded

from the procedures and protections set forth in chapter 75 of the CSRA”.

Emphasis added. Id at 1381.

(o) By contrast, Dr. Scarnati’s case was inapposite to that of Dr. Khan’s,

because the former was (a) a “preference eligible” veteran (b) appealing his

non­selection for (c) a competitive (i.e. non­excepted service) position, which

process was specifically authorized by the appointment statute.

(p) Finally, Congress saw no inconsistency when it (i) extended the

application of “ preference eligible requirements to: (1) the General Accounting

Office; and (2) positions within the staff of the President, Vice President, and

Domestic Policy Staff and Office of Administration”. See CRS Summary of S.

1021.

(ii) It also provided the “procedure for consideration of alleged violations” to

its GAO Personnel Appeals Board. See Senate Report 105­340, Section 115(c)(3).

(iii) It would be completely inconceivable to conclude that the same

Congress had an opposite view with respect to executive agencies, such as DVA

and the MSPB.

(iv) Therefore, by holding that “the appellant did not have the right to file an

appeal under VEOA” in Dowd v. Department of Veterans Affairs, p.2, 2011 (NP),

the Board’s Vice Chairman, who “served “a five­year statutory term as a Member

of the GAO Personnel Appeals Board” and pledged “to engage in extensive

70

research and analysis with regard to those claims”, could not have meant to agree

71

with the Board’s decision in this case. Say it ain’t so Vice Chairman Vagner.

70 See http://www.mspb.gov/About/members.htm.

71 See Vice­Chairman Wagner’s testimony at the Senate Hearing 111­452 at p. 6.

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9. The Board Hearing Process Is Inadequately Fair.

a. The Board regulation at 5 CFR 1201.51(d) states that it “has established

certain approved hearing locations, which are listed on the Board’s public website

(www.mspb.gov). The judge will advise parties of these hearing sites as

appropriate. Parties, for good cause, may file motions requesting a different hearing

location. Rulings on those motions will be based on a showing that a different

location will be more advantageous to all parties and to the Board.” The latter

option, of course, depends on the agencies ability to find an alternate location, if its

office that took the disputed personnel action is outside an appellant’s town or even

state.

b. However, it does not mean that agencies will be able to do so. Thus, if an

agency is unable to find a location near the appellant’s residence, he/she will have to

travel thousand miles to the Board’s hearing location if he resides outside of

continental states. This inflexibility creates certain inconvenience and extra cost for

both parties, such as work absences, their own and witness travel expenses, per

diem allowances etc.

c. The resultant issues will have a bearing on (a) the appellant’s ability to

attend a hearing, when it is granted “in such a way as to say, "Oh, well, if we must

listen to you, pay your own expenses, come up to Washington and we'll hear you;

but see how far you get" (b) the quantity of witnesses he may have during the

72

hearing, which in turn, will adversely affect the quality of justice he/she will later

receive.

72 See Stringer, ibid.

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VI. RECOMMENDATIONS FOR EXECUTIVE ACTION.

1. The proposed regulations at 5 C.F.R. § 1201.56 and .57 as well as current

5 CFR 1208. 13(b) and 23(b) establish lesser protections the Congress guaranteed

the veterans in 5 U.S.C. 7701. Since Congress had already addressed precisely this

issue and the regulations conflict with the statute itself, the Board should not

implement the former and repeal the latter.

2. In order to ensure that “a public interest in a civil service free of

prohibited personnel practices is being adequately protected” the Board should

73

revise 5 CFR 120.118 to reflect the following change: “If the Board or appellant

establishes that such decision is (a) based on or overlooked a prohibited

personnel practice, (b) violated his/her due process rights or (c) was otherwise

unconstitutional, in which cases the strict requirements of this regulation would

not apply.”

3. In order to accord “veterans the full rights that they are provided under

each of those statutes” the Board should reopen all USERRA and VEOA cases it

74

has adjudicated “to determine if they are consistent with law and merit principles

and to provide meaningful redress when violations occur[ed]”.

75

4. In order to facilitate an effective and efficient resolution of cases at a lower

or no cost to anyone the Board should modify its 5 CFR 1201.51(d) to reflect the

following change: “An appellant or respondent may request participation by other

suitable means involving mass media technology, such as Skype. Any proposed

73 See Chairman Grundmann testimony, ibid.

74 See Vice­Chairman Wagner’s testimony, ibid.

75 See Chairman Grundmann testimony, ibid.

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alternative must be reviewed in advance to ensure that it is consistent with the

goals of a fair and equitable process.”

76

5. To do otherwise would render the Board’s (a) report to the President and

the Congress ­ misleading (b) regulations ­ invalid (c) hearing process ­ unfair (c)

decisions ­ ultra vires its authority and (d) “therefore may be made the object of

specific relief”, because of the Board’s lack of delegated power “to overrule the

congressional policy” and disregard its specific and mandatory requirements. “A

77

claim of error in the exercise of that power” would not be sufficient.”

78

76 See e.g. “Procedures for Resolution of Complaints Against Students”, at the Swarthmore College.

77 See e.g. Hilton v. Sullivan, 334 US 323, 339 ­ Supreme Court, 1948.

78 See Larson v. Domestic and Foreign Commerce Corp., 337 US 682, 689 ­ Supreme Court, 1949.

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