Barry v. Department of Defense
702 F. App'x 991
| Fed. Cir. | 2017Background
- In early 2016 Barry, a preference-eligible veteran, applied for a Program Analyst vacancy at the Defense Logistics Agency posted as a merit promotion announcement.
- The announcement used a questionnaire scoring system; 60 applicants scored 100 and at least 16 (including Barry) scored 98.
- Pursuant to a Master Labor Agreement the Agency set a cut-off score of 100 and did not consider candidates who scored below that; Barry was notified he was not eligible.
- Barry appealed to the Merit Systems Protection Board (Board) asserting a VEOA claim (violation of veterans’ preference) and a USERRA claim (discrimination based on military service).
- The Administrative Judge denied both claims: VEOA failed because Barry was not qualified under the merit promotion process and thus had no entitlement to additional preference points; USERRA was dismissed for lack of jurisdiction because Barry did not nonfrivolously allege his military service was a substantial or motivating factor.
- The Board’s decision became final; Barry appealed to the Federal Circuit, which affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VEOA entitles Barry to additional consideration/points under a merit promotion with a cut-off score | Barry: Agency’s automated coding and scoring denied him meaningful opportunity; Agency should have considered more factors | Agency: Merit promotion only guarantees right to apply and compete; cut-off score lawfully applied to all applicants | Court: VEOA does not entitle Barry to selection or extra points under merit promotion; Board’s finding supported by substantial evidence |
| Whether the Board had jurisdiction over Barry’s USERRA discrimination claim | Barry: Military service was a factor in non-selection; entitled to consideration/hearing | Agency/Board: Barry failed to make nonfrivolous allegation that military service was a substantial or motivating factor | Court: Dismissal for lack of jurisdiction affirmed; no nonfrivolous factual allegation shown |
| Whether failure to advise Barry of USERRA jurisdictional requirements in acknowledgement order prejudiced him | Barry: Procedural error deprived him of ability to plead jurisdiction | Agency: Agency’s motion on jurisdiction informed him before his proof of jurisdiction; no prejudice | Court: No prejudicial error; dismissal stands |
| Whether Barry was entitled to a hearing on USERRA claim despite jurisdictional dismissal (Kirkendall) | Barry: Kirkendall entitles USERRA claimants to a hearing | Agency/Board: Kirkendall requires a hearing only for claims within the Board’s jurisdiction | Court: Kirkendall does not require a hearing where Board lacks jurisdiction; no hearing required |
Key Cases Cited
- Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (VEOA does not allow consideration for positions for which veteran is not qualified)
- Dean v. Consumer Prod. Safety Comm’n, 548 F.3d 1370 (Fed. Cir. 2008) (under merit promotion, veterans get the right to apply and compete but not a right to selection)
- Kitlinski v. Merit Sys. Prot. Bd., 857 F.3d 1374 (Fed. Cir. 2017) (jurisdictional standard: must nonfrivolously allege military service was a substantial or motivating factor under USERRA)
- Kirkendall v. Department of the Army, 479 F.3d 830 (Fed. Cir. 2007) (USERRA claimants have right to a hearing on the merits when claim is within Board jurisdiction)