Petition for review of the Merit Systems Protection Board in consolidated case nos. DC3330110367-I-1, DC4324110475-I-1, and DC3330110637-I-1.
NOTE: This opinion is nonprecedential.
Before NEWMAN, CLEVENGER, and MOORE, Circuit Judges.
Robert Donnell Donaldson ("Donaldson") seeks review of the final decision of the Merit Systems Protection Board ("Board") which sustained the decisions of an Administrative Judge in three individual appeals brought by Donaldson. In the appeals, Donaldson alleged violations of his rights under the Veterans Employment Opportunities Act of 1998 ("VEOA") and the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). The Administrative Judge denied Donaldson's claims of violation in each of the three appeals. The Board consolidated the three appeals for decision when Donaldson petitioned for review of the Administrative Judge's decisions, and sustained the rejection of Donaldson's alleged statutory violations. Donaldson v. Dep't of Homeland Security, Docket. Nos. DC-3330-11-0367-I-1, DC-4324-11-0475-I-1, DC-3330-11-0637-I-1 (March 30, 2012). We have jurisdiction under 28 U.S.C. 1295 (a)(9). We must affirm the Board's final decision unless we determine that it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). We affirm.
As the parties are familiar with the facts of this case, we need recite here only the facts necessary to frame and decide the issues Donaldson presents on appeal.
Donaldson is a 30% disabled veteran entitled to certain rights under VEOA and USERRA. He applied for the advertised position of Marine Transportation Specialist, GS 12/13, with the U.S. Coast Guard in Washington, D.C. The Department of Homeland Security ("agency") interviewed each of the best qualified applicants, including Donaldson. The agency determined that Donaldson lacked the technical expertise necessary to succeed at the position.
As a result of his veteran's preference, Donaldson was number one on the certificate of eligibles, but nevertheless the agency did not select him for the vacancy. Instead, the selecting official submitted a request to the agency's Human Resources Department to pass over Donaldson in favor of non-veteran applicant, on the ground that Donaldson was not qualified for the position. The Human Resources Department rejected the request, noting that a 30% disabled veteran need be only minimally qualified, and therefore must be selected over non-veterans. The Human Resources Department further advised the selecting official of an option: not to select Donaldson and request permission to re-advertise the opening. Consequently, the agency did not select Donaldson, cancelled the vacancy announcement to which Donaldson had replied, re-advertised the position, and selected a non-veteran for the vacancy.
On February 9, 2011, Donaldson filed two appeals with the Board. In one appeal, he argued that the agency violated his veterans' preference rights under VEOA by not selecting him for the Marine Transportation Specialist job. Because Donaldson had not exhausted his administrative remedies with the Department of Labor before filing his VEOA suit, the Board dismissed his VEOA suit for want of jurisdiction. On May 20, 2011, after exhausting his administrative remedies, Donaldson re-filed his VEOA suit with the Board. Donaldson's second action before the Board asserted that the agency failed to select him for the vacancy on the basis of his prior performance of military service, in violation of USERRA.
A hearing was conducted on Donaldson's USERRA complaint on June 23, 2011. To prevail on his USERRA suit, Donaldson was obligated to prove, by a preponderance of the evidence, that his military experiences were a substantial or motivating factor in the agency's decision not to select him. See 38 U.S.C. § 4311(a). At the hearing, agency officials testified that Donaldson was passed over for the job because he was not qualified, citing statements Donaldson made during his interview that he did not have the expertise for the job and their own independent assessments of his qualifications for the job. Donaldson however testified that he believed his former military service was a motivating factor in the agency's decision to pass him over. The administrative judge weighed the conflicting testimony and found the agency's testimony more credible and consistent with the record, which included notes taken during the Donaldson's interview. The Administrative Judge concluded that the record failed to show evidence that "the agency has either expressed hostility towards or engaged in a conspiracy against military members protected by USERRA" and "the credible evidence showed that, rather than his military status, the appellant's inexperience in commercial maritime matters along with his limited experience in drafting regulations and providing technical advice on issues related to the manning and training of personnel working on commercial vessels was his downfall." Consequently, the Administrative Judge ruled on July 22, 2011, that Donaldson failed to sustain his claim for relief under USERRA.
On July 29, 2011, the Administrative Judge ruled on Donaldson's re-filed VEOA case. Donaldson alleged that the agency's actions in passing him over violated his procedural rights under 5 U.S.C. § 3318 and his right to compete for the position under 5 U.S.C. § 3304(f)(1). As for his procedural rights, Donaldson argued that the agency erred in not giving him notice of its attempt to pass him over internally to select non-veterans for the job. The Administrative Judge rejected this argument because the relevant statute, 5 U.S.C. § 3318(b), provides for notice to the veteran applicant if the agency seeks permission from the Office of Personnel Management ("OPM") to pass over a veteran with preference, and here the agency never sought such permission from OPM. The Administrative Judge held that the right-to-compete statute did not include a right to win the competition, but instead guaranteed a right to be considered on the merits. Reasoning that the agency here afforded that right to Donaldson, the Administrative Judge rejected Donaldson's second VEOA claim. Donaldson sought review before the full Board.
The full Board minimally reviewed the decision of the Administrative Judge in the USERRA and VEOA cases. As for the USERRA appeal, the full Board agreed with the Administrative Judge that Donaldson failed to show that his military status was a substantial or motivating factor in the agency's decision not to select him for the job. Citing Abell v. Dep't of the Navy, 343 F.3d 1378 (Fed. Cir. 2003), the full Board held that so long as the agency ranked Donaldson on the certificate of eligibles and gave him the opportunity to compete for the position, its decision to cancel the vacancy announcement rather than offer him the position did not violate his VEOA rights. The full Board also rejected new arguments made by Donaldson regarding the re-advertising of the position and the selection of a non-veteran, Roger Henderson. The rejection was based on Donaldson's failure to raise the new arguments before the close of the record in the two cases, even though Donaldson was aware of the ...