Winning the Case But Losing the Job

By on February 27, 2006 in Current Events with 0 Comments

It’s got to be disheartening to appeal to the Merit Systems Protection Board, win the case, but lose the remedy. That’s what happened in Patterson v. Office of Personnel Management, U.S.C.A.F.C. No. 05-3234 (non precedent), 2/15/06.

Mr. Patterson applied to OPM under both open competition and merit promotion for the position of Freedom of Information/Privacy Act Specialist. He claimed entitlement to merit promotion procedures because of his prior military service.

OPM did not let him compete under merit promotion procedures and he was not selected for the position. He appealed to the Merit Systems Protection Board, arguing that his rights under the Veterans Employment Opportunity Act of 1998 had been violated by not allowing him to compete under merit promotion. The Board detemined Mr. Patterson did have the right to compete under merit promotion procedures. It found that OPM had violated Mr. Patterson’s rights under VEOA and under the Uniformed Employment and Reemployment Rights Act of 1994. (Patterson v. Office of Pers. Mgmt. No. PH-3443-03-0223-I-2 (M.S.P.B. Dec. 4, 2003)

When coming up with a remedy for the violation, the Board noted that there was no evidence that Patterson’s entitlement to the position was in any way superior to those of the selected candidate. It therefore denied his request to order his retroactive promotion to the position with back pay. Instead, OPM was ordered to reconstruct the merit promotion process and consider Mr. Patterson a candidate. If the reconstruction showed that Patterson should be selected for the position, then he was to be retroactively selected with back pay.

When OPM did the reconstruction, his name was added to the list of candidates, along with three others, and referred to the selecting official. However, he was not selected.

He went back to the Board and petitioned for enforcement of its order. However, the Board denied the petition. As the AJ pointed out, “being on the promotion certificate entitles an individual to be considered for a job but does not guarantee selection.” He went on to state that there was no evidence that “the appellant’s entitlement is clearly superior to that of the individual who was appointed.” (Quoted in Court Opinion p. 4)

Mr. Patterson went to court and argued that the Board’s original remedy order was in error. The court did not agree. The VEOA violation found by the Board was failure by the agency to consider him for the position under merit promotion procedures. The Board’s remedy was to order that the promotion action be reconstructed and that he be considered. “The Board’s order addressed the harm that it had found.” (Opinion p. 4)

The appeals court, after review of the Board record, was also not persuaded by Mr. Patterson’s argument that the Board’s decision was not supported by substantial evidence. (p. 4)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.