Alvern C. Weed v. Social Security Administration
2016 MSPB 45
| MSPB | 2016Background
- Appellant Alvern C. Weed, a 10‑point preference‑eligible veteran, alleged the Social Security Administration violated his veterans’ preference rights by filling four Kalispell, MT vacancies via FCIP without public notice or opportunity to compete; related VEOA, USERRA, and IRA appeals were joined.
- The Board found a VEOA violation and ordered reconstruction of the hiring process; the agency later conceded Weed would have been selected and offered him a position retroactive to September 5, 2006, but Weed had retired in 2008 and declined the offer on October 17, 2012.
- Weed sought damages: lost wages and benefits, retirement service credit, out‑of‑pocket expenses, and liquidated damages for willfulness.
- The administrative judge awarded lost wages from September 5, 2006 to October 17, 2012, denied retirement credit as premature, denied liquidated damages and consequential damages/front pay.
- On review the Board: affirmed the award of lost compensation but reversed the judge’s narrow reading of "loss of wages or benefits," holding Weed is entitled to compensation for both lost wages and lost benefits (including CSRS and Social Security credit); denied liquidated damages and nonstatutory remedies (consequential damages, front pay).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to liquidated damages for willful violation | Agency acted willfully by not reconstructing selection and delayed concession; HR incompetence shows reckless disregard | Agency offered placement within 30 days of Board order and reasonably believed reconstruction unnecessary | Denied: no evidence of knowing or reckless disregard; offer within 30 days and concession negate willfulness |
| Scope of "any loss of wages or benefits" under 5 U.S.C. § 3330c(a) | "Or" should be read inclusively; VEOA is remedial and entitles prevailing veterans to make‑whole relief (wages and benefits) | (Administrative judge had read "or" exclusively to permit either wages or benefits only) | Held for Weed: "any" requires compensation for both lost wages and lost benefits when both incurred; Williams footnote overruled to extent inconsistent |
| Awardability of retirement service credit and Social Security credit as "benefits" | Such credits are "benefits" and recoverable under VEOA | Agency/administrative judge required final OPM determination before award | Held for Weed: "benefits" construed like USERRA definition (includes pension rights); Weed entitled to CSRS and Social Security credit; OPM determination not prerequisite |
| Availability of consequential damages, out‑of‑pocket expenses, front pay | Expenses and front pay flow from the denial and are economic losses directly attributable to violation | VEOA’s remedy is limited to "loss of wages or benefits"; Board lacks authority to create additional remedies | Denied: Board not authorized to award consequential damages or front pay under VEOA |
Key Cases Cited
- Marshall v. Department of Health & Human Services, 587 F.3d 1310 (Fed. Cir. 2009) (reconstruction required only when it is unknown whether veteran would have been selected)
- Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984) (back pay principles applicable)
- United States v. Gonzales, 520 U.S. 1 (U.S. 1997) (the word "any" has expansive meaning)
- Tula‑Rubio v. Lynch, 787 F.3d 288 (5th Cir. 2015) ("any" construed to refer to all where Congress did not limit scope)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (VEOA’s remedial purpose and veteran‑protective construction)
- Willis v. United States, 719 F.2d 608 (2d Cir. 1983) ("or" can mean "and" depending on context)