shaw bransford & roth case law update

MSPB: Veterans Preference No Exemption from Preappointment Process

Despite a negative passover decision from OPM, the Merit Systems Protection Board found that the Agency’s subsequent withdrawal of a job offer from a veteran with a 10-point preference was not improper.

A 10-point preference-eligible veteran applied for a position at a Department of the Army community hospital as a Clinical Social Worker. After creating a certificate of eligibles, the agency placed the applicant at the top, made a tentative job offer to him, and sent him a letter requesting documentation in order to be credentialed at the hospital. Subsequently, the agency decided that the applicant did not meet the credentialing requirements, and filed a passover request to the Office of Personnel Management. Although generally, an agency may not “pass over” a preference eligible veteran to select a candidate not entitled to preference, an agency may file a passover request with OPM, giving the agency’s reasons for passing over a preference eligible veteran in order to select a candidate not entitled to preference. OPM denied the agency’s request in this case, and so the agency contacted the applicant, and notified him that he had failed to provide the required documentation for the credentialing process. When the applicant did not provide the documentation, the agency withdrew the offer “due to his failure to provide a complete package for credentialing.” The applicant filed a request for corrective action with the Merit Systems Protection Board thereafter, but an MSPB administrative judge denied his request for corrective action. The applicant appealed the decision to the full Board. On May 2, 2016, the Board affirmed the administrative judge’s initial decision, and denied the applicant’s petition for review.

The Board found that OPM’s negative passover decision “did not relieve the agency from requiring the [applicant] to provide the mandated documentation for the credentialing process pursuant to Army regulations,” as that was a requirement imposed on all selectees for the Clinical Social Worker position. The Board found that the agency resumed the onboarding process after getting the negative passover decision from OPM, and asked the applicant to provide the remainder of his outstanding credentialing documents. The Board observed that in discovery, the applicant wrote to the agency asserting that due to OPM’s denial of the agency’s attempt to pass him over, he was “entitled to an exception to the agency’s usual preappointment process for the Clinical Social Worker position.”

The Board disagreed, finding that after the agency met its obligation to offer the employee the position he sought, the agency was free to subject him to the same preappointment process as other employees. The Board found that the applicant’s veterans’ preference rights were therefore not violated by applying the generally applicable preappointment process, and that when the applicant was “unwilling or unable to provide the required documentation for the credentialing process,” the agency “could withdraw the tentative offer of employment without again requesting passover authority from OPM.”

For the above stated reasons, the Merit Systems Protection Board denied the applicant’s petition for review of the administrative judge’s initial decision.

Read the full case: Goodin v. Department of the Army


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: OPM, Army, MSPB, Merit Systems Protection Board, case law update, conor d dirks, conor dirks



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