Gary Davis v. Department of Defense
2022 MSPB 20
MSPB2022Background
- Gary K. Davis, a veteran and former DCMA Safety and Occupational Health Specialist, applied in June 2013 to a DCMA Safety and Occupational Health Specialist (Intern) vacancy but was not selected; he filed a VEOA complaint with DOL, then appealed to the MSPB after DOL found no violation.
- The DCMA job announcement identified the position as an "acquisition position" and stated the agency would use DOD’s expedited hiring authority to fill it.
- The administrative judge initially dismissed the appeal for failure to state a claim, concluding veterans’ preference statutes did not apply because the agency used 10 U.S.C. § 1705(f); alternatively, the judge denied corrective action on the merits.
- On review the Board modified the disposition (clarifying the dismissal standard) but affirmed the denial of corrective action, holding the agency properly invoked the expedited hiring authority and veterans’ preference statutes (5 U.S.C. §§ 3309–3318) did not apply.
- Key factual findings: the vacancy was publicly posted on USAJOBS with notice of expedited hiring; the Secretary of Defense’s authority under 10 U.S.C. § 1705 was properly delegated; DCMA treated the position as part of the acquisition workforce and documented a critical hiring need/shortage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of 10 U.S.C. § 1705(f) exempted the selection from veterans’ preference statutes | Davis: agency didn’t comply with § 3304(a)(3) requirements, so § 1705(f) could not displace veterans’ preference | Agency: position was publicly announced as an acquisition position, authority properly delegated, and § 1705(f) was properly invoked | Held: § 1705(f) properly invoked; expedited hiring authority displaced §§ 3309–3318 for this hire, so veterans’ preference statutes did not apply |
| Whether public notice/OPM determination under 5 U.S.C. § 3304(a)(3) was required and satisfied | Davis: agency gave insufficient public notice and OPM made no formal shortage/critical need determination | Agency: posting on USAJOBS plus announcement of expedited hiring constituted sufficient public notice; OPM determination not required given § 1705(f) framework | Held: USAJOBS posting and announcement constituted adequate public notice; Congress intended § 1705(f) to permit Secretary (and designees) to act without OPM making the § 3304(a)(3) determination |
| Whether the Safety and Occupational Health Specialist position is an acquisition-workforce position and the designation was properly delegated | Davis: position/series (0018) not properly part of acquisition workforce and designation/delegation improper | Agency: Secretary’s authority was delegated; position duties fall within acquisition categories (PQM/contract surveillance); internal guidance supports inclusion | Held: designation and delegation were proper and the position fits within acquisition workforce categories |
| Whether Davis proved agency violated veterans’ preference statutes (entitling him to corrective action) and whether a hearing was required | Davis: alleged failures under 5 U.S.C. §§ 3309, 3313, 3318 (points, certificate ordering, selection from top eligibles) and sought discovery/hearing | Agency: statutes inapplicable because of § 1705(f); administrative record sufficient to resolve the dispositive issue without a hearing | Held: Davis failed to prove by preponderant evidence a veterans’ preference violation; hearing not required because record was sufficiently developed |
Key Cases Cited
- Morton v. Mancari, 417 U.S. 535 (1974) (statutes capable of coexistence should be construed so each remains effective)
- Boston v. Department of the Army, 122 M.S.P.R. 577 (2015) (VEOA corrective-action standard; title 5 veterans’ preference may not apply where a different hiring authority is used)
- Isabella v. Department of State, 109 M.S.P.R. 453 (2008) (discussing statutory coexistence and application of Morton)
- Dean v. Department of Agriculture, 104 M.S.P.R. 1 (2006) (statutory timing and interplay considerations)
- Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349 (2008) (Board may dismiss VEOA claims on merits without hearing when record is fully developed)
- Williamson v. U.S. Postal Service, 106 M.S.P.R. 502 (2007) (procedural standards for dismissing or deciding VEOA claims without a hearing)
- Lazaro v. Department of Veterans Affairs, 666 F.3d 1316 (Fed. Cir. 2012) (jurisdictional elements for VEOA appeals)
- O'Connor v. United States, 308 F.3d 1233 (Fed. Cir. 2002) (historical reference to DCMA’s organizational alignment)