UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRANDON M. GOINS,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-3330-21-0214-X-1

DATE: September 23, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Brandon M. Goins, APO, AP, pro se.

Chad H. Arnesen, Esquire and Harrison Spencer, APO, AP, for the agency.

BEFORE

Cathy A. Harris, Vice Chair

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 In a November 8, 2021 compliance initial decision, the administrative judge 

found the agency in noncompliance with the Board’s August 9, 2021 final 

decision, which ordered the agency to reconstruct the hiring process for a position 

for which it had denied the appellant the opportunity to compete in violation of 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

his veterans’ preference rights under the Veteran’s Employment Opportunities 

Act of 1998 (VEOA), 5 U.S.C. § 3304(f)(1). Goins v. Department of the Army, 

MSPB Docket No. SF-3330-21-0214-I-1, Initial Appeal File (IAF), Tab 15, Initial 

Decision; Goins v. Department of the Army, MSPB Docket No. SF-3330-21-0214-

C-1, Compliance File, Tab 11, Compliance Initial Decision (CID). For the 

reasons discussed below, we find the agency in compliance and DISMISS the 

petition for enforcement.

DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE

¶2 In the compliance initial decision, the administrative judge found that, 

although the agency attempted to reconstruct the hiring process, it did not provide 

evidence indicating precisely what steps it had taken to comply with the Board’s 

order, including whether it had removed the improperly appointed selectee from 

the subject position during the reconstruction, applied the same criteria to the 

appellant’s application that it applied to the other candidates, and/or engaged in 

more than a merely hypothetical reconstruction process. CID at 3. Accordingly, 

he granted the appellant’s petition for enforcement and again ordered the agency 

to reconstruct the selection process for the position, consistent with the 

requirements set forth at 5 U.S.C. § 3304(f)(1), to include taking the improperly 

appointed selectee out of the position during the reconstruction process. CID 

at 4.

¶3 The administrative judge informed the agency that, if it decided to take the 

ordered actions, it must submit to the Clerk of the Board a narrative statement and 

evidence establishing compliance. CID at 4-5. The administrative judge also 

informed the parties that they could file a petition for review if they disagreed 

with the compliance initial decision. CID at 5. Neither party filed any 

submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. 

§ 1201.114. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the 

administrative judge’s findings of noncompliance have become final, and the 
3

appellant’s petition for enforcement has been referred to the Board for a final 

decision on issues of compliance. Goins v. Department of the Army, MSPB 

Docket No. SF-3330-21-0214-X-1, Compliance Referral File (CRF), Tab 1.

¶4 On December 21, 2021, the Board issued an acknowledgment order 

directing the agency to submit evidence showing that it had complied with all 

actions identified in the compliance initial decision. CRF, Tab 1 at 3. In a 

January 4, 2022 response, the agency stated and provided evidence reflecting that

it reconstructed the hiring process a second time but again did not select the 

appellant for the position. CRF, Tab 2. The agency’s evidence included copies 

of the resumes of each candidate considered, the scoring matrix used by the 

reconstructed hiring board to rate the candidates, the agency’s position 

description, and a memorandum signed by the hiring official outlining the steps 

that were taken, including removal of the improperly appointed selectee from the 

position during the reconstruction. Id.

¶5 On January 10, 2022, the appellant responded to the agency’s submission. 

CRF, Tab 3. He alleged that the agency did not afford him an opportunity to 

compete in the second hiring reconstruction and that it was unclear whether the 

agency’s hiring process complied with Department of Defense Instruction (DODI) 

1400.25, Volume 1232, entitled, “DoD Civilian Personnel Management System: 

Employment of Family Members in Foreign Areas,” as no information was 

provided by the agency as to whether the improperly appointed selectee qualified 

for veterans’ preference, military spouse preference, or family member 

preference. Id. at 4. He also alleged that the agency had not provided any 

supporting documentation to show that he was ever placed on a missed 

consideration list, as the agency had previously indicated. Id.; IAF, Tab 5. The 

agency did not respond.

¶6 On March 11, 2022, the Board ordered the agency to respond to the 

appellant’s allegations of noncompliance, as well as attest to its compliance with 

the administrative judge’s orders to properly reconstruct its hiring process that 
4

violated the appellant’s veterans’ preference rights under VEOA. CRF, Tab 4. In 

an April 1, 2022 response, the agency averred, and provided evidence showing, 

that it reconstructed the hiring process a third time. CRF, Tab 6 at 6, 9, 45. The 

agency stated that, in this third reconstruction, it properly applied and considered 

the preference entitlements of each candidate, to include the appellant’s family 

member preference under DODI 1400.25, Volume 1232, and both the appellant’s 

and original selectee’s veterans’ preference rights. Id. Although the 

reconstruction did not result in the appellant’s selection, the agency stated that it 

had provided the appellant a lawful hiring process consistent with law and was 

now in compliance with the administrative judge’s orders. Id. at 8. The agency 

further averred that it had placed the appellant on a missed consideration list as of 

March 30, 2021, as an interim remedy2for the agency’s error in determining the 

appellant unqualified for the position at issue. Id. at 7-8, 61.

¶7 On April 7, 2022, the appellant responded to the agency’s submission, 

challenging various aspects of the hiring reconstruction and requesting lost wages 

and sanctions against the agency. CRF, Tab 7. The agency did not respond.

ANALYSIS

¶8 The Board has jurisdiction to consider an appellant’s claim of agency 

noncompliance with a Board decision. See Kerr v. National Endowment for the 

Arts, 726 F.2d 730, 733 (Fed.Cir.1984); Weed v. Social Security Administration, 

110 M.S.P.R. 468, ¶ 5 (2009). The Board’s authority to remedy noncompliance is 

broad and far-reaching and functions to ensure that employees or applicants for 

employment are returned to the status quo ante or the position that they would 

have been in had the unlawful agency action not occurred. Kerr, 726 F.2d at 733; 

Weed, 110 M.S.P.R. 468, ¶ 5. It is the agency's burden to prove by preponderant 

 

2

The Board did not order the appellant’s placement on the agency’s missed 

consideration list as an interim remedy. Instead, this action was both proposed, and 

initiated, by the agency. A copy the agency’s missed consideration log, dated March 

29, 2022, was provided with the agency’s April 1, 2022 response. CRF, Tab 6 at 61. 
5

evidence that it has fully complied with a final Board decision. Weed, 

110 M.S.P.R. 468, ¶ 5. Thus, in the instant case, the agency must show that it 

properly reconstructed the hiring process for the position at issue.

¶9 Under VEOA, an appellant whose veterans’ preference rights were violated 

with respect to a selection process is entitled to a selection process consistent 

with law. Weed, 110 M.S.P.R. 468, ¶ 6. To properly reconstruct a selection, an 

agency must conduct an actual selection process based on the same circumstances 

surrounding the original faulty selection. Washburn v. Department of the Air 

Force, 119 M.S.P.R. 265, ¶ 14 (2013). This includes taking the original selectee 

out of the position, conducting and evaluating an interview of the appellant that 

can be meaningfully compared with the original selectee’s interview, and filling 

the same number of vacancies as before. Id. 

¶10 Here, the agency argues that it has now properly reconstructed the hiring 

process and has provided evidence showing that it removed the original selectee 

from the position for the reconstruction, reinterviewed the appellant with a hiring 

board that included one of the same members of the original hiring board, and 

filled the same number of vacancies. CRF, Tab 6. In support, the agency 

provided: (1) a Certificate of Eligibles, dated October 7, 2021, containing the 

names and preference entitlements for each candidate, including the appellant and 

the original selectee, id. at 39; (2) a Candidate Scoring Matrix, containing the 

reconstructed hiring board’s ratings for each candidate and identifying the 

original selectee as its fourth overall pick and the appellant as its fifth overall 

pick, id. at 63; and (3) copies of the appellant’s and original selectee’s resumes, 

id. at 64-82. 

¶11 In addition, the agency provided the hiring official’s March 25, 2022 

affidavit in which he attested that “[u]pon completion of the reconstructed hiring 

process, [he] affirmed that [the original selectee] should be recommended for the 

[position at issue]” for the following reasons: (1) the original selectee’s 

pre-interview scores were higher than the appellant’s scores; (2) both the original 
6

selectee and the appellant were entitled to veterans’ preference; (3) upon 

comparison of their resumes, the original selectee’s prior work experience was a 

better fit for the position compared to the appellant’s “due to skill sets required to 

operate in Global Command Support System – Army programs and fulfilling 

related Property Book Office duties and responsibilities”; (4) the hiring board had 

determined that the original selectee was more qualified for the position; and 

(5) the original selectee hypothetically would have accepted the position at issue, 

as demonstrated by the fact that the original selectee accepted the position. Id.

at 45. Also attached to the hiring official’s affidavit were four “Memorandum 

[sic] for Record,” including three documenting his directives to the reconstructed 

hiring board and one signed by a member of the hiring board documenting the 

hiring board’s reconstructed interview of the appellant on March 22, 2022, and its 

unanimous post-interview recommendation that, based on its review of pre- and 

post-interview documentation and candidate scores, the hiring official should hire 

the original selectee. Id. at 47-50. 

¶12 In his response to the agency’s compliance submission, however, the 

appellant argues that the agency did not provide him a lawful selection process. 

For the reasons that follow, we find no merit to the appellant’s arguments.

¶13 First, the appellant argues that the agency did not provide him a lawful 

selection process because he was not asked the same interview questions as the 

original selectee during his reconstructed interview. CRF, Tab 7 at 5. Although 

the Board ordered the agency to submit evidence showing that the appellant was 

asked the same interview questions as the original selectee during his 

reconstructed interview, CRF, Tab 4 at 5, it is not necessary to a lawful 

reconstructed selection process as long as the agency can otherwise show that it 

conducted and evaluated an interview of the appellant that is meaningfully 

comparable with the original selectee’s interview. See Washburn, 119 M.S.P.R. 

265, ¶ 14. Here, the agency asserts that, although no record of the exact 

questions asked by the original board was retained, the hiring official directed the 
7

reconstructed hiring board to make all efforts to ask the appellant the same 

interview questions as the original selectee. CRF, Tab 6 at 43-44. To that end, 

the reconstructed hiring board member who served on the original hiring board 

advised the other members regarding the original hiring board’s interview 

practices, subject matter of interview questions asked, and the reasons for its 

decision to hire the original selectee. Id. at 12, 44, 50. The agency further 

asserts that the appellant was asked questions of the same subject matter and that 

his reconstructed interview lasted roughly the same duration of time as the 

selected candidate’s interview. Id. at 11. In light of these circumstances, we find 

that the agency satisfied its obligation to conduct and evaluate an interview of the 

appellant that was meaningfully comparable with the original selectee’s

interview, even though it was unable to ask the appellant identical questions to 

those asked during the original hiring process. 3See Washburn, 119 M.S.P.R. 265, 

¶ 14.

¶14 Next, the appellant argues that the reconstructed selection process was not 

lawful because his status as a preference eligible under VEOA and his family 

member preference should have placed him “at the top of the listing for 

consideration” by the agency. CRF, Tab 7 at 4. However, the appellant’s belief 

that he should have been ranked higher than the other applicants does not 

establish that the agency failed to provide him a lawful selection process. The 

agency has provided as evidence a copy of the full, ranked list of candidates that 

it considered during the reconstruction, accompanied by the candidates’ scores 

and preference entitlements. CRF, Tab 6 at 39, 43-44, 63. This evidence shows 

 

3

The appellant claims that the agency’s failure to maintain the original selectee’s 

interview questions is a violation of 29 C.F.R. § 1602.14, which requires employers to 

maintain personnel or employment records related to hiring for 1 year. CRF, Tab 7 

at 6. Assuming arguendo that 29 C.F.R. § 1602.14 is applicable here, the agency’s 

compliance (or lack thereof) with this records management provision does not affect the 

dispositive issue before us of whether the agency provided the appellant a lawful 

selection process. 
8

that both the appellant and the selected candidate are entitled to veterans’ 

preference, as they are both preference eligibles,

4

and that the agency considered 

the preference entitlements of each candidate during the reconstruction, including 

the appellant’s family member preference. CRF, Tab 6 at 6, 39, 45. Accordingly, 

we find that the agency properly applied and considered the appellant’s veterans’ 

preference and family member preference in reconstructing the hiring process. 

¶15 The appellant also appears to argue that the reconstructed hiring process 

was not lawful because the agency may not have considered his eligibility for 

Schedule A hiring or reinstatement under 5 C.F.R. § 315.401. CRF, Tab 7 at 4. 

However, Schedule A hiring may be used only in a noncompetitive hiring 

process; therefore, it was unavailable in the reconstructed hiring process here for 

a competitive service position. See 5 C.F.R. § 213.3102(u); CRF, Tab 6 at 27. In 

addition, while “an agency may appoint by reinstatement to a competitive service 

position a person who previously was employed under career or 

career-conditional appointment (or equivalent),” reinstatement eligibility is not a 

guarantee that an employee will be considered for a specific position or be 

appointed to it. See 5 C.F.R. § 315.401(a) (emphasis added); see also Hicks v. 

Department of the Navy, 33 M.S.P.R. 511 (1987) (the Board lacks jurisdiction 

over an agency’s decision not to reinstate an employee pursuant to 5 C.F.R. 

§ 315.401). Accordingly, the appellant’s arguments do not demonstrate any error 

in the reconstructed hiring process.

¶16 Finally, the appellant argues, without evidence, that it is his belief that the 

agency never conducted interviews of the candidates during the original hiring 

process. CRF, Tab 7 at 6. However, the agency’s evidence reflects otherwise. In 

particular, the agency provided a scoring matrix showing the dates that the 

 

4 As both the selected candidate and the appellant are preference eligibles under VEOA, 

the agency was not required to seek preapproval from the Office of Personnel 

Management before passing over the appellant, regardless of any compensable 

service-connected disability he may have. See 5 U.S.C. § 3318(c)(1)-(2).
9

original hiring board conducted these interviews and its interview remarks for 

each candidate. Id. at 62-63; CRF, Tab 2 at 9. The agency’s evidence also shows 

that one of the three members of the reconstructed hiring board served on the 

original hiring board and advised the other members regarding the original hiring 

board’s interview practices, subject matter of interview questions asked, and the 

reasons for its decision to hire the original selectee. 5 CRF, Tab 6 at 12, 44, 50. 

Therefore, we find that the agency’s evidence outweighs the appellant’s cursory 

and unsupported allegation and provides no basis to find that the agency did not 

conduct interviews during the original hiring process or otherwise provide him a 

lawful reconstructed selection process. 

¶17 We have considered the appellant’s myriad other challenges to the agency’s 

compliance and find them unpersuasive. 

¶18 In consideration of the agency’s evidence of compliance, and all arguments 

put forward by the appellant, we find that the agency’s reconstruction of its hiring 

process is consistent with law and provided the appellant an opportunity to 

compete for the position at issue, with his veterans’ preference rights and family 

member preference properly applied and considered. CRF, Tabs 6-7. 

Specifically, we find that the agency’s reconstruction was based on the same 

circumstances surrounding the original faulty selection and involved taking the 

original selectee out of the position, conducting and evaluating an interview of 

the appellant that was meaningfully comparable with the original selectee’s 

interview, and filling the same number of vacancies. See Washburn, 119 

M.S.P.R. 265, ¶ 14. As the lawful reconstructed hiring process demonstrated 

that, in the absence of a violation of the appellant’s veterans’ preference rights, 

the agency would not have selected him for the position because he was not the 

 

5 As one of the members of the original hiring board served on the reconstructed hiring 

board, only the appellant was required to be interviewed during the reconstruction. The 

agency was not required to re-interview the other candidates. See Phillips v. 

Department of the Navy, 114 M.S.P.R. 19, ¶ 18 (2010).
10

best candidate, he has not suffered any lost wages or benefits that would entitle 

him to an award under 5 U.S.C. § 3330c(a). See Lodge v. Department of the 

Treasury, 107 M.S.P.R. 22, ¶ 15 (2007). Accordingly, his requests to be issued 

such an award are denied.6

¶19 In light of the foregoing, we find that the agency is now in compliance and 

dismiss the appellant’s petition for enforcement. This is the final decision of the 

Merit Systems Protection Board in this compliance proceeding. Title 5 of the 

Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).

NOTICE OF APPEAL RIGHTS7

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

 

6 We additionally deny the appellant’s request for sanctions or other “follow-up 

action[s].” CRF, Tab 7 at 7. The Board’s ability to impose sanctions is a means to 

enforce compliance. Eikenberry v. Department of the Interior, 39 M.S.P.R. 119, 121 

(1988). Here, the agency has submitted evidence of compliance, and therefore, it would 

be inappropriate for the Board to impose sanctions at this time. Id. 

7

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
11

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 
12

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 
13

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.8 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

 

8

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
14

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W.

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board