Marvin L. Stewart v. Department of Veterans Affairs

N OTE : This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARVIN L. STEWART,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1666
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3330-18-0074-I-1.
______________________
Decided: October 9, 2024
______________________
MARVIN L. STEWART, Long Beach, CA, pro se.
NELSON KUAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by B RIAN M.
B OYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before L OURIE , BRYSON, and STARK, Circuit Judges.
P ER C URIAM .
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STEWART v. DVA 2
Petitioner Marvin L. Stewart appeals from a final deci-
sion of the Merit Systems Protection Board denying his ap-
peal from the failure of the Department of Veterans Affairs
(“DVA”) to select him for any of the three positions within
the agency for which he had applied. We affirm.
I
Mr. Stewart, a preference-eligible veteran, was em-
ployed by the DVA as a GS-7 Accounting Technician. In
2017, he applied for the positions of Patient Representa-
tive, Budget Analyst, and Program Analyst within the
DVA, all at the GS-11 level. Each position announcement
required candidates to have served a minimum of 52 weeks
in positions no more than two grades lower than the posi-
tion to be filled, or to have one year of equivalent special-
ized experience.
Mr. Stewart was not selected for any of the three posi-
tions. After Mr. Stewart submitted his applications, the
DVA advised him that he was not qualified for the position
of Patient Representative because he did not meet the spe-
cialized experience required at the GS-11 level. Similarly,
he was advised that he was not qualified for the Budget
Analyst position at the GS-11 level because he lacked per-
tinent experience at the GS-9 grade level. After posting the
Program Analyst position and reviewing the applications,
including Mr. Stewart’s, the DVA determined that none of
the candidates had the necessary experience for that posi-
tion, so the agency closed the announcement without mak-
ing a selection.
Mr. Stewart filed an appeal from the non-selection de-
cisions with the Department of Labor, contending that his
non-selection violated the Veterans Employment Opportu-
nities Act of 1998 (“VEOA”). The Department of Labor de-
nied his claim, after which he filed a petition for appeal to
the Merit Systems Protection Board.
A Board administrative judge denied Mr. Stewart’s pe-
tition for appeal, holding that the DVA had not violated Mr.
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STEWART v. DVA 3
Stewart’s rights under the VEOA when it failed to select
him for any of the three positions. Stewart v. Dep’t of Vet-
erans Affs., No. SF-3330-18-0074-I-1, 2018 WL 1243515
(Mar. 8, 2018), S. App. 9–28 (“Initial Decision”). In partic-
ular, the administrative judge ruled that Mr. Stewart
failed to meet his burden of showing that the agency had
violated his rights under a statute or regulation relating to
veterans’ preferences. Id., S. App. 17–20. The administra-
tive judge found that the agency had lawfully chosen to fill
the positions through the merit promotion process1 and
that it was proper for the agency to determine that Mr.
Stewart was not qualified for any of the positions for which
he applied. Id., S. App. 18–19. The administrative judge
also ruled that the Department of Labor had properly de-
termined that Mr. Stewart was subject to the time-in-grade
requirements set by Office of Personnel Management reg-
ulations and that Mr. Stewart did not satisfy the applicable
time-in-grade requirement for any of the three positions.
Id., S. App. 18–19. Finally, the administrative judge deter-
mined that the DVA had not overlooked or excluded any of
Mr. Stewart’s experiences or work history in assessing his
qualifications. Id., S. App. 19.
Mr. Stewart petitioned for review by the full Board,
which denied the petition and affirmed the initial decision
of the administrative judge. Stewart v. Dep’t of Veterans
Affs., No. SF-3330-18-0074-I-1, 2024 WL 1366493
1 The Patient Representative and Budget Analyst
positions were open to “[c]urrent or former competitive ser-
vice employees,” and to “current employees” of the DVA.
S. App. 35, 43. The Program Analyst position was open to
“[c]urrent or former competitive service employees” and
“[v]eterans.” S. App. 52. The administrative judge found
that the agency used the merit promotion process to fill
these positions because the positions were “limited [to] ap-
plicants with various eligibilities.” Initial Decision, S. App.
18.
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STEWART v. DVA 4
(M.S.P.B. Mar. 29, 2024), S. App. 1–2 (“Final Decision”).
The administrative judge’s decision thereby became the de-
cision of the Board.
II
“We must affirm a Merit Systems Protection Board de-
cision unless it is arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation
having been followed; or unsupported by substantial evi-
dence.” Kerner v. Dep’t of the Interior, 778 F.3d 1336, 1337
(Fed. Cir. 2015); see also 5 U.S.C. § 7703(c). Mr. Stewart
raises a variety of issues on which he contends that the
Board erred in assessing his VEOA claim. Each argument
fails.
“Federal agencies generally use two types of selection
to fill vacancies: (1) the open ‘competitive examination’ pro-
cess and (2) the ‘merit promotion’ process.” Joseph v. Fed.
Trade Comm’n, 505 F.3d 1380, 1381 (Fed. Cir. 2007); see
also 5 C.F.R. §§ 332.101, 335.103. “The open competitive
examination generally is used for employees seeking to join
the competitive service and often is used for reviewing ap-
plicants outside the agency.” Joseph, 505 F.3d at 1381.
“The merit promotion process is used when the position is
to be filled by an employee of the agency or by an applicant
from outside the agency who has ‘status’ in the competitive
service.” Id. at 1382.
Under the competitive examination process, veterans
are given special advantages, including the addition of
points to their competitive scores and being ranked ahead
of others with the same score. See 5 U.S.C. § 3309; 5 U.S.C.
§ 3313. Those point and ranking preferences, however, “do
not apply in the merit promotion process.” Joseph,
505 F.3d at 1382. The VEOA provides that veterans “may
not be denied the opportunity to compete for vacant posi-
tions for which the agency making the announcement will
accept applications from individuals outside its own work-
force under merit promotion procedures.” 5 U.S.C.
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STEWART v. DVA 5
§ 3304(f)(1). This provision “guarantee[s] veterans only a
right to apply and an opportunity to compete for such posi-
tions,” and “[says] nothing about the basis upon which the
agency could make its selection.” Joseph, 505 F.3d at 1383.
The VEOA “is intended to assist veterans in gaining access
to federal civil service employment, not to give veterans
preference in merit promotions.” Kerner, 778 F.3d at 1338.
It is undisputed that the vacancies in this case were
subject to the merit promotion process. The Board was
therefore correct to hold that Mr. Stewart was entitled to
compete for the positions for which he applied, but was not
entitled to point and ranking preferences.
1. As noted, each of the positions for which Mr. Stewart
applied was subject to a “time-in-grade” requirement,
providing that the applicant must have completed a mini-
mum of 52 weeks in positions no more than two grades
lower than the applied-for position or requiring one year of
equivalent specialized experience. S. App. 38, 45, 55. The
positions for which Mr. Stewart applied were GS-11 grade
positions, and Mr. Stewart was at the time employed in a
GS-7 position with the agency. Mr. Stewart therefore did
not satisfy the time-in-grade requirement.2
2 The administrative judge cited 5 C.F.R.
§ 300.604(a) and held that Mr. Stewart was required to
“have completed a minimum of 52 weeks in positions no
more than one grade lower (or equivalent) than the position
to be filled.” Initial Decision, S. App. 19. The vacancy an-
nouncements in this case, however, required a minimum of
52 weeks in positions no more than two grades lower than
the position to be filled. See S. App. 38, 45, 55. Neverthe-
less, as the Board explained, the administrative judge’s er-
ror “did not adversely affect the appellant’s substantive
rights” since Mr. Stewart did not meet the time-in-grade
requirement under either standard. Final Decision, S.
App. 2 n.2.
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STEWART v. DVA 6
In response, Mr. Stewart argues that the DVA should
have used its special appointing authority under 38 U.S.C.
§ 4214 to override the time-in-grade requirement in his
case. As the Board pointed out, however, the applicable
regulations governing the use of the special appointing au-
thority make it clear that the use of that authority is en-
tirely discretionary with the agency. See 5 C.F.R.
§ 300.603(b) (“The following actions may be taken without
regard to this subpart but must be consistent with all other
applicable requirements, such as qualification stand-
ards[.]”). The DVA in this case did not elect to use that
authority, and Mr. Stewart has made no showing that the
DVA abused its discretion in declining to do so.3
2. Mr. Stewart argues in the alternative that the DVA
improperly disregarded his legal training when it refused
to appoint him to any of the positions for which he applied.
Mr. Stewart notes that he holds a J.D. degree and a Bach-
elor of Science in Laws degree from Taft Law School, an
online law school in Santa Ana, California. He argues that
his legal training, and in particular the online courses in
Alternative Dispute Resolution and Health Care Law he
took from the Taft Law School, constituted “one year of
equivalent specialized experience” that qualified him for
the positions for which he applied. Specialized experience,
however, had to be related to the responsibilities of the po-
sition—and to the extent that education could substitute
for experience, the degree also had to be related. See
S. App. 37–38, 45–46, 55–56. The administrative judge
reasonably found that Mr. Stewart’s legal training was not
3 Mr. Stewart offers evidence that the special ap-
pointing authority was used in the case of another DVA
employee, Richard Mendoza. But the position to which Mr.
Mendoza was appointed was not one of the positions at is-
sue in this case, and the agency’s decision to use the discre-
tionary special appointing authority in one instance does
not bind it to use that authority in any other situation.
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STEWART v. DVA 7
in a field of study related to the work of the positions at
issue.4
Mr. Stewart also contends that his service, on a volun-
tary basis, as a Patient Advocate Liaison Specialist begin-
ning in November 2015 served as a source of experience
relevant to the position of Patient Representative. It was
not unreasonable for the agency to conclude that such vol-
untary service was not equivalent to the level of experience
required to substitute for satisfying the time-in-grade re-
quirement.
4 In his initial petition for appeal to the Board, Mr.
Stewart argued only that he had “two law degrees” that
could substitute for specialized experience. See MSPB Rec-
ord 12–13. The administrative judge thus referred gener-
ally to Mr. Stewart’s “higher level graduate education” and
found it unrelated to the work of the positions at issue.
S. App. 18. In this court, Mr. Stewart argues that two
courses he took in particular—Alternative Dispute Resolu-
tion and Health Care Law—support his assertion that he
has specialized experience equivalent to a year in a position
at least at the GS-9 level. Mr. Stewart also argues in his
reply brief that the DVA “tampered with the Agency Files,”
because the transcript for his Bachelor of Science in Laws
degree program that lists those two courses “was removed”
from the administrative record. Petitioner’s Reply Br. at 1.
The MSPB record contains Mr. Stewart’s transcript for his
J.D. degree program. That transcript incorporates all the
courses he took for his Bachelor of Science in Laws pro-
gram, but with the exception of the courses in Alternative
Dispute Resolution and Health Care Law. Compare MSPB
Record 142 with Petitioner’s Reply Br. App. 12. However,
simply pointing to the titles of those two courses is plainly
insufficient to show that taking those courses constitutes
the “one year of equivalent specialized experience” re-
quired for the positions to which Mr. Stewart was applying.
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STEWART v. DVA 8
It was therefore not an error for the Board to hold that
the DVA did not violate Mr. Stewart’s rights when it de-
clined to appoint him to any of the three positions for which
he applied in 2017.
3. In addition to his contentions on the merits, Mr.
Stewart raises a procedural issue. He contends that the
administrative record in this case did not include certain
materials that he submitted to the DVA in connection with
his employment applications. In particular, he complains
that the cover letters he included with his applications, his
resumes, and certain supporting documents were not in-
cluded in the administrative record.
Copies of Mr. Stewart’s resume and other documents
that he has identified as submitted with his cover letters
were in fact included in the administrative record. See
MSPB Record 134–149, 192–199, 233–240. It is true that
Mr. Stewart’s cover letters for the three applications were
not included in the administrative file. However, based on
the representative copy of the cover letters that Mr. Stew-
art has provided in the appendix to his petition, the cover
letters merely summarized information contained in the
remaining application materials, which were made part of
the administrative file. See Petitioner’s App. 2-1 to 2-2.
Therefore, even if the cover letters should have been in-
cluded in the administrative record, their omission could
not have had a material effect on the availability of rele-
vant information for the administrative judge’s considera-
tion.
Beyond that, Mr. Stewart had the opportunity to deter-
mine whether the administrative record was complete and
to supplement the record as needed while the case was
pending before the administrative judge, when correction
of any error would have been a simple matter. Yet he failed
to raise the issue at any time before filing his opening brief
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STEWART v. DVA 9
in this case.5 His failure to address the record issue earlier
in the proceedings effectively forfeited his right to object at
this late stage of the proceedings.
Finally, Mr. Stewart has had multiple opportunities to
brief the facts and law in this case and has taken ad-
vantage of those opportunities, including submitting two
lengthy briefs to the administrative judge. He has pointed
to nothing of material significance in any of the allegedly
missing documents that was not covered in those briefs and
thus was not before the administrative judge. Any error in
the assembly of the administrative records in this case has
therefore not been shown to have prejudiced Mr. Stewart.
We have carefully reviewed all of Mr. Stewart’s other
arguments, but conclude that they lack merit. The Board
did not err in denying corrective action because the agency
did not violate Mr. Stewart’s rights under the VEOA.
AFFIRMED
C OSTS
No costs.
5 Mr. Stewart concedes in his reply brief that
“[w]hile this matter was before the Administrative Judge,
and the MSPB Board, [he] did not review the Agency File
for its completeness, . . . [and] had assumed the Agency’s
File was accurate and complete.” Petitioner’s Reply Br. at
2. According to Mr. Stewart, he was “overwhelmed with
this case, employment, and . . . his Post-Doctoral studies in
a Master of Business” at the time. Id. Those assertions do
not establish good cause for his failure to address record
issues on a timely basis.
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