[00:00:00] Speaker 02:
3105 Basan versus Army.

[00:00:49] Speaker 02:
Mr. President, please proceed.

[00:01:20] Speaker 03:
Good morning, Your Honor.

[00:01:24] Speaker 03:
May it please the Court, I'm John Bazan, petitioner pro se and attorney member of this Court.

[00:01:29] Speaker 03:
The petitioner in this appeal was a Veterans preference eligible candidate who applied for an open position of Deputy District Counsel in charge of contract claim and general litigation with the agency.

[00:01:42] Speaker 03:
The position was announced as Deputy

[00:01:48] Speaker 03:
Deputy District Council in charge of contract claim and litigation, and this is at the record at A051.

[00:01:57] Speaker 03:
The parties prior to the hearing stipulated to this, and that's at the record at A031.

[00:02:05] Speaker 00:
Even if we agree that there was misapplication of the preference eligibility standards, the most we could do would be to remand, correct?

[00:02:18] Speaker 03:
No, Your Honor.

[00:02:19] Speaker 03:
I believe that the court could rule that the petitioner was better qualified.

[00:02:29] Speaker 00:
Wasn't there a second candidate that was also a preference eligible veteran?

[00:02:34] Speaker 03:
No, Your Honor.

[00:02:35] Speaker 03:
Mr. Large was not preference eligible, and that was part of his testimony before the administrative judge.

[00:02:43] Speaker 03:
That was also part of the argument that I made as well, that

[00:02:48] Speaker 03:
the selecting official didn't follow the procedures of determining who was a veterans eligible veteran.

[00:02:55] Speaker 03:
And in doing and not doing that, he made the error of considering Mr. Large veterans preference eligible.

[00:03:02] Speaker 03:
But Mr. Large's testimony was that he is not and he was not.

[00:03:08] Speaker 00:
But there would still have to be an opportunity for a comparison between

[00:03:14] Speaker 00:
your qualifications and Mr. Larges' qualifications, even if we were to agree that that yours were better than the chosen candidate?

[00:03:21] Speaker 03:
Well, Your Honor, I think in the record, I believe the qualifications approval memorandum and it's quite possible that because of redactions to the record and rulings of the administrative judge that the records not developed enough to

[00:03:42] Speaker 03:
determine mister large but he did testify and i believe based on his testimony uh... his testimony was that he was not as qualified as a petition so i i believe that in the record uh... there is the the the evidence available where is that in the record that he says he's not as qualified uh... well it would be in his testimony uh... your honor in the record uh... exactly yes please that's why i'm asking

[00:04:13] Speaker 03:
Your Honor, I don't have that tabbed.

[00:04:15] Speaker 03:
I couldn't get to that for you.

[00:04:17] Speaker 00:
I don't remember seeing that in his testimony.

[00:04:20] Speaker 00:
That's why I'm concerned about this.

[00:04:23] Speaker 00:
Because that's an important concession.

[00:04:28] Speaker 03:
Well, I didn't tab it.

[00:04:31] Speaker 03:
And to the extent, I believe that in his testimony, he indicates my qualifications.

[00:04:39] Speaker 03:
And I believe that he also indicates that

[00:04:42] Speaker 03:
He was not a type three litigation attorney, as the Army Corps of Engineers indicates.

[00:04:48] Speaker 03:
And perhaps that's what I'm referring to.

[00:04:52] Speaker 03:
But again, Your Honor, I did not tab that.

[00:04:56] Speaker 04:
Well, they take into account, I mean, do you disagree that they take into account your status as a veteran?

[00:05:02] Speaker 04:
I mean, they say they're aware that you're a lieutenant colonel on the reserve.

[00:05:06] Speaker 04:
And they say that they know your supervisory responsibilities as an LTC.

[00:05:13] Speaker 04:
So there's evidence that they're taking into account.

[00:05:18] Speaker 03:
Actually, and I did tab this, the agency indicated that I was not entitled to veterans preference.

[00:05:26] Speaker 03:
And the selecting official, if I may, if you look at it's A149 starting at... I'm looking at 150 right now, so let me...

[00:05:51] Speaker 03:
Your Honor, you can see that there's discussion of the type TP.

[00:05:57] Speaker 03:
That's a CPAC.

[00:05:59] Speaker 03:
That's our human resources.

[00:06:00] Speaker 03:
That's a CPAC reference.

[00:06:02] Speaker 03:
And what he's indicating is he didn't follow any of the procedures, which I would also argue it goes to under Patterson versus Department of Interior.

[00:06:14] Speaker 03:
He was not following as far as administratively feasible the requirements of

[00:06:20] Speaker 03:
determining who was veterans preference eligible.

[00:06:24] Speaker 03:
That was also a violation of DODI 1442.

[00:06:32] Speaker 03:
So that's one of the reasons why he made the mistake of believing Mr. Large was veterans preference eligible.

[00:06:40] Speaker 03:
He didn't know and nor did he take any time to do what the regulations required in determining.

[00:06:48] Speaker 03:
So the answer to the courts

[00:06:50] Speaker 03:
Yes, I am alleging that he did not consider my veteran's preference eligible status because he did not follow the procedures.

[00:07:02] Speaker 03:
And of course, the agency takes the position that I wasn't even eligible.

[00:07:06] Speaker 03:
So I don't believe, in real time, during the review of these applications, and also I think you can see from my testimony, I state I was told by the selecting official

[00:07:20] Speaker 03:
I did not consider your veterans preference.

[00:07:24] Speaker 03:
So yes, I am alleging that it was not considered.

[00:07:28] Speaker 02:
But we can't review that factual determination.

[00:07:32] Speaker 02:
And on page 149 of the record, which you just pointed to, the deciding official said, and his service overseas was a positive factor also.

[00:07:42] Speaker 02:
He says, whether it's true or not, that he considered your veteran status to be a positive factor

[00:07:50] Speaker 02:
the selection process.

[00:07:53] Speaker 03:
Another argument that I make, and the board, I believe this was an error, they come up with this generally positive factor and then they allowed testimony that, you know, these various things, that he considered my service overseas, but he didn't follow the requirements of

[00:08:20] Speaker 03:
you know, of the Department of Defense in DODI 1442.

[00:08:27] Speaker 03:
He didn't do the things that were required to... Why specifically didn't he do that you think he needed to do?

[00:08:39] Speaker 02:
The DOD initiative that you just spoke of.

[00:08:42] Speaker 02:
Right.

[00:08:42] Speaker 02:
What is it that he didn't do?

[00:08:43] Speaker 03:
Well, what he didn't do is he didn't establish

[00:08:48] Speaker 03:
who was Vetcham's preference eligible at any particular stage.

[00:08:52] Speaker 03:
And so that was a violation of DOD 1442.

[00:09:00] Speaker 03:
Also DOD 1442, and it's in my papers, but required that he hire the best qualified

[00:09:16] Speaker 03:
And if all things being equal, if it was a veterans preference eligible, it should have been a veterans preference eligible individual.

[00:09:24] Speaker 03:
Also an argument that I'm making.

[00:09:27] Speaker 04:
But the argument they make is all things are not equal.

[00:09:31] Speaker 03:
Well, Your Honor, all things are not equal because the board would not look at the violations of the selecting official's duties under the prohibited practice

[00:09:46] Speaker 03:
prohibited personal practices under what I believe it's five USC.

[00:09:52] Speaker 00:
Yeah that's actually an important question because even if we again believe that he didn't properly weigh preference eligibility because he simply said well we noted that he had it on his resume so that was generally positive.

[00:10:06] Speaker 00:
If that's not enough what do we do about the fact that the preferred

[00:10:13] Speaker 00:
background for this position included substantial knowledge of environmental laws?

[00:10:20] Speaker 03:
Well, Your Honor, that's a great point because it doesn't.

[00:10:26] Speaker 03:
And that's testimony of Mr. Large with the position was because if the administrative law, the administrative judge did not allow me to look at the job descriptions of the outgoing deputy and so

[00:10:43] Speaker 03:
I think if you look at the approval qualifications memorandum, and you'll see the seven factors for the position.

[00:10:52] Speaker 03:
And also, as I mentioned in the start, I believe I got that far, this was deputy district counsel in charge of claims and litigation, which has no general civil litigation requirement.

[00:11:08] Speaker 03:
I'd also point to the board to

[00:11:10] Speaker 03:
a chart at A260 which indicates that our district was not a civil works district as the government states.

[00:11:26] Speaker 02:
I guess I don't even understand the nature of this particular argument because we're not in the business of reviewing

[00:11:33] Speaker 02:
the posting and deciding whether the government has accurately reflected what it needs in the position.

[00:11:41] Speaker 02:
I mean, that would be a very strange thing for an appellate court to start getting into the business of doing.

[00:11:47] Speaker 02:
The government decides what the qualifications are that it needs for a person in a given position, and they post those qualifications.

[00:11:55] Speaker 02:
And at most, what subsequent judicial forums can do is make certain that they followed veterans' preferences in doing it,

[00:12:02] Speaker 02:
which may mean you might be right and the government might be wrong that if it's close and you're in second place and all things were equal, you should have been the one to get the job, not them.

[00:12:14] Speaker 02:
And maybe there is some avenue for requiring judicial officials to review whether or not it was in fact a tie and you should have gotten the knot and look into the qualifications.

[00:12:25] Speaker 02:
But I didn't understand your

[00:12:28] Speaker 02:
objections, your request for discovery, your objections and your appeal of those issues to the extent that what you were asking for was Ms.

[00:12:36] Speaker 02:
Moriarty's job descriptions from her prior jobs and things like that.

[00:12:40] Speaker 02:
I don't see what relevance that has to whether she is appropriate for the current position.

[00:12:46] Speaker 03:
Your Honor, I guess first I believe it's appropriate for an appellate court to review de novo errors by the Board

[00:12:55] Speaker 03:
that are questions of law.

[00:12:59] Speaker 03:
And I believe that the statutes that I have cited to you in my papers indicate why I'm asking the court to look at these facts.

[00:13:12] Speaker 03:
So I believe that answers the question.

[00:13:14] Speaker 02:
Your very sentence was confusing.

[00:13:16] Speaker 02:
The sentence you just uttered.

[00:13:18] Speaker 02:
The court has to review questions of law.

[00:13:19] Speaker 02:
I believe it's clear from my paper why I'm asking you to look at these facts.

[00:13:23] Speaker 02:
Do you see the problem?

[00:13:24] Speaker 02:
These aren't, we don't look at facts.

[00:13:26] Speaker 02:
These are questions of law.

[00:13:28] Speaker 02:
And so what is the question of law?

[00:13:32] Speaker 02:
You may have some traction with me on your larger point, which is that they should have reviewed the individual qualifications and that maybe the board below was incorrect to the extent that it repeatedly said we don't review the qualifications and assess whether two candidates are equally

[00:13:51] Speaker 02:
entitled or qualified for the job.

[00:13:53] Speaker 02:
I mean, that's a legal point, it seems to me, because it's interpreting the DOD directive that says when there are two people equally qualified, you've got to give the job to a veteran.

[00:14:02] Speaker 02:
And so that's a legal point.

[00:14:03] Speaker 02:
But the question about the nature of what she did in her prior work or what her prior job descriptions were, and those are the things about which you're asking for discovery.

[00:14:13] Speaker 02:
I don't see how those relate to the legal question.

[00:14:18] Speaker 03:
Yes, Your Honor.

[00:14:19] Speaker 03:
And in that case, then,

[00:14:21] Speaker 03:
I would have to concede that those would be something that would be not reviewed de novo and there would be abusive discussion review.

[00:14:28] Speaker 03:
And I believe that if the approval qualification memorandum was looked at, it would become, it should indicate that petition was better qualified.

[00:14:43] Speaker 03:
I'm well past

[00:14:44] Speaker 03:
or well into my rebuttal.

[00:14:46] Speaker 02:
It's OK.

[00:14:46] Speaker 02:
I'll restore a little bit of your rebuttal time.

[00:14:47] Speaker 02:
But one other question I have for you is one of the other things you sought in discovery was you actually wanted Ms.

[00:14:52] Speaker 02:
Moriarty's performance evaluations.

[00:14:55] Speaker 02:
And so what I'm trying to wrap my head around is if you are right on the legal point that you had a right to have a judicial body or MSPB board review your qualifications, suppose you were second place.

[00:15:09] Speaker 02:
So we take out Mr. Burke entirely.

[00:15:11] Speaker 02:
So there's no question.

[00:15:12] Speaker 02:
Suppose you were the second place candidate.

[00:15:14] Speaker 02:
And the MSPB should have looked at Mrs. Moriarty's qualifications and your qualifications and decided whether or not you were equally qualified, in which case you should have gotten the position over her.

[00:15:24] Speaker 02:
If that's a legal standard that we were to endorse, I'm a little nervous about how far that opens the door to discovery because, you know, you understand you're very well qualified and well spoken and all of that, but a lot of times we get these appeals from many, many different people.

[00:15:42] Speaker 02:
I don't think that we should open up the doors of discovery and let them see all of their competitors job evaluations, job performance, performance reviews.

[00:15:51] Speaker 02:
I mean, you know, the confidentiality has to be really important in those scenarios.

[00:15:57] Speaker 02:
It would be a strange door to open to give you access to all of Mrs. Moriarty's personal employment reviews and all of the jobs she's had.

[00:16:06] Speaker 02:
So can you help me in any way feel better about, since that's one of the things you asked for in discovery, is you wanted access to her job performance reviews.

[00:16:17] Speaker 02:
Do you see the problem?

[00:16:18] Speaker 02:
The problem isn't giving you hers.

[00:16:19] Speaker 02:
The problem is if I say, yes, you're entitled to those, am I saying every single employee who didn't get a job he thought he was entitled to is now entitled to see the personal confidential employment records of all of his competitors?

[00:16:33] Speaker 02:
That's the problem I'm having.

[00:16:34] Speaker 03:
Perhaps the performance records was a bit of an overreach on my part.

[00:16:39] Speaker 03:
What I really wanted was the job descriptions.

[00:16:41] Speaker 03:
And I wasn't looking for any personal information of the selected individual.

[00:16:49] Speaker 03:
In how we do our performance evaluations, there's certain information that indicates the jobs are performing.

[00:16:57] Speaker 03:
And that's all I was looking for.

[00:16:59] Speaker 02:
OK, her experience.

[00:17:01] Speaker 02:
Her experience.

[00:17:01] Speaker 02:
OK, I understand.

[00:17:02] Speaker 02:
I'll restore some of your rebuttal time.

[00:17:04] Speaker 02:
Let's hear from the government.

[00:17:20] Speaker 01:
May it please the court.

[00:17:22] Speaker 01:
Mr. Bazin's veterans preference rights were not violated by his non-selection for the position of Principal Assistant Deputy

[00:17:28] Speaker 01:
because the Army followed the law and its own regulations in selecting the most qualified individual for the position.

[00:17:34] Speaker 02:
Do you think that this election official understood what it meant to have veterans preference rights and to follow those procedures versus what it simply means to serve in a military capacity?

[00:17:46] Speaker 02:
Because I think you probably understand well that those are two very different things.

[00:17:49] Speaker 02:
Not every person who has passed military service is entitled to veterans preferences, correct?

[00:17:54] Speaker 02:
Yes, Your Honor, that is correct.

[00:17:56] Speaker 02:
And do you think this selecting official understood that?

[00:17:59] Speaker 01:
I do believe so, and I also believe that the selecting... Well, let's look at his testimony on page 164.

[00:18:03] Speaker 02:
Grab your appendix.

[00:18:06] Speaker 02:
Yes, Your Honor.

[00:18:08] Speaker 02:
And here's what he says at page 164 in the middle of the page.

[00:18:11] Speaker 02:
And what is it that indicates whether somebody is preference eligible?

[00:18:15] Speaker 02:
This is the question put to the selecting official.

[00:18:17] Speaker 02:
I can't say exactly what you mean by that, but obviously it's service in the United States Armed Forces, honorable discharge.

[00:18:24] Speaker 02:
And would that explain why maybe he thought Mr. Burke was also somewhat entitled to veterans' preferences?

[00:18:29] Speaker 02:
Because he viewed a veterans' preference as being an entitlement to any person who has prior military service, as opposed to understanding the proper employment procedures set out by the US government for assessing veterans' preferences and giving those people the appropriate entitlement.

[00:18:45] Speaker 01:
Well, later on in the page, Your Honor, Mr. Minch also discusses that the point system is explained on page 11 of the instruction and discusses

[00:18:54] Speaker 01:
if the Veterans Employment Opportunity Act were applicable, a disabled veteran would get 10 preference points, Purple Heart recipients would get 10 preference points, and other veterans would qualify for a five-point preference.

[00:19:05] Speaker 01:
So he clearly understands where in the regulations... Wait, wait.

[00:19:09] Speaker 00:
Let's read the next paragraph.

[00:19:10] Speaker 00:
On the very next page, he said he's actually not that familiar with the rules and that he only thought that those preference points were given if you were choosing between two veterans, not if you were choosing between

[00:19:23] Speaker 00:
a veteran and some other candidate?

[00:19:25] Speaker 01:
I think there's really two issues here, Your Honor.

[00:19:28] Speaker 01:
The first is Mr. Minch's articulation of the difference between the different veterans preference and whether someone is entitled to a points preference or whether someone has ever served in the military but is not entitled to a points preference.

[00:19:43] Speaker 01:
Mr. Minch's point as later on page A165

[00:19:48] Speaker 01:
He states that we didn't get to the point of choosing between veterans.

[00:19:51] Speaker 01:
And so at that point, had he gone to the list of certificate of eligibles, which I believe is at page A 45 through 48 and is partially redacted, it set forth whether or not each individual had a point preference.

[00:20:08] Speaker 01:
Had the Army determined that Mr. Large and Mr. Bazin were equally well qualified,

[00:20:17] Speaker 01:
then it would have had to establish who had the points preference.

[00:20:22] Speaker 02:
Mr. Large, I said Burke.

[00:20:23] Speaker 02:
Is that his name?

[00:20:25] Speaker 01:
I believe his name is Burke Large.

[00:20:27] Speaker 02:
I thought Burke was his last name.

[00:20:28] Speaker 02:
I remember seeing him referred to as Burke in some of the transcriptions.

[00:20:32] Speaker 02:
I'm sorry.

[00:20:33] Speaker 01:
Yes.

[00:20:35] Speaker 01:
So in terms of whether or not the army would have to choose between two veterans, one is preference eligible and one is not, should Mr. Large and Mr. Bazin been considered equally well qualified,

[00:20:47] Speaker 01:
as per the regulations and as Mr. Mitch stated, Mr. Bazan would have had to be chosen.

[00:20:52] Speaker 00:
But then, at the bottom of page 166, he goes on to say that none of that applies in this case because this is accepted service, accepted service for DOD civilian attorney positions, which are wholly exempt from the appointment procedures in Part 302 of Title 5.

[00:21:09] Speaker 00:
And so he says that that means he doesn't have to worry about the veterans' preference rules.

[00:21:17] Speaker 00:
He goes on to expressly say that.

[00:21:20] Speaker 01:
He also states in his testimony that veterans preference had to be applied as far as administratively feasible.

[00:21:31] Speaker 01:
And this is where much of the confusion lies within the testimony.

[00:21:34] Speaker 04:
Where does he say that?

[00:21:35] Speaker 01:
I recall seeing it.

[00:21:38] Speaker 04:
I recall seeing it, but where is it?

[00:21:40] Speaker 01:
I believe it was at A171.

[00:21:47] Speaker 01:
No, my apologies, Your Honor.

[00:21:49] Speaker 01:
That discusses the qualifications of the selectee.

[00:21:56] Speaker 01:
That he was considered a positive factor.

[00:21:58] Speaker 01:
Mr. Mitch discussed that at A149, A150, A154 through 157, and A161.

[00:22:04] Speaker 01:
Now, in terms of the DOD regulations do state that

[00:22:13] Speaker 01:
This is an accepted service position and is wholly exempt from the appointment procedures in Part 302 of Title V of the Code of Federal Regulations.

[00:22:23] Speaker 01:
The issue in this case is that all the parties, the administrative judge, Mr. Minch, Mr. Bazan, everyone refers to veterans preference sort of in a blanket fashion.

[00:22:33] Speaker 01:
Mr. Bazan was entitled to have his veterans preference considered as a positive factor in making the decision.

[00:22:39] Speaker 02:
That's not all in this case, right?

[00:22:40] Speaker 02:
DOD went further.

[00:22:42] Speaker 02:
And in the case as applied to Mr. Bazan, it didn't just say he's entitled to have it as a positive factor.

[00:22:47] Speaker 02:
It went further and established a very precise formulaic-like rule, which says, and if it comes down to a choice between a non-preference eligible veteran and a preference eligible veteran, and they are equally well qualified, tie goes to the veteran every time.

[00:23:07] Speaker 02:
And so this isn't just a matter of saying it's a positive factor.

[00:23:10] Speaker 02:
There is a very precise and clear DOD rule that says what I just articulated, correct?

[00:23:17] Speaker 01:
That is correct, Your Honor, but the Army did not get to that point because it did not consider Mr. Bazan to be the most well-qualified.

[00:23:24] Speaker 02:
Yes, but the board... Oh, I'm sorry.

[00:23:26] Speaker 04:
Please go ahead.

[00:23:27] Speaker 04:
It's not a question of most well-qualified.

[00:23:30] Speaker 04:
Or even equally qualified.

[00:23:32] Speaker 04:
It didn't find a tie.

[00:23:34] Speaker 01:
It did not determine that there was a tie.

[00:23:36] Speaker 01:
The board stated in footnote four on page 86,

[00:23:40] Speaker 01:
that the Army never reached the second part, which is subpart B of DODI 1442.02, which is where if two select or two individuals are equally well qualified, a preference eligible veteran must be given the position.

[00:23:54] Speaker 01:
This is not what happened here.

[00:23:55] Speaker 01:
Mr. Bazan was ranked third out of the three finalists interviewed for the position.

[00:24:00] Speaker 01:
Suppose he had been ranked second.

[00:24:02] Speaker 01:
How would this change?

[00:24:05] Speaker 01:
Mr. Bazan fails to point to anything in the record to indicate that the army ever considered him equally well qualified.

[00:24:11] Speaker 02:
Isn't that a bit of a problem?

[00:24:12] Speaker 02:
Because the judge below denied him discovery on all of those points.

[00:24:17] Speaker 02:
The judge denied him discovery saying it's irrelevant to him what Ms.

[00:24:22] Speaker 02:
Moriarty's qualifications are because the board expressly said it did not have jurisdiction to and nor would it look at the qualifications of the two agencies and review whether they were equally qualified.

[00:24:35] Speaker 02:
Didn't the board expressly and unequivocally disavow jurisdiction to do that?

[00:24:40] Speaker 01:
The board did state that the MSPB does not have the jurisdiction to review the relative qualifications of the selectees.

[00:24:48] Speaker 02:
But if the DOD has a rule that says if two people are equally qualified, the tie goes to the veteran, how can the MSPB say we refuse to determine whether the two people were equally qualified?

[00:25:00] Speaker 02:
That doesn't make sense to me.

[00:25:01] Speaker 02:
The cases in which we've held there's no jurisdiction

[00:25:04] Speaker 02:
The cases in which the MSP has held there's no jurisdiction all go to cases where this particular directive doesn't exist.

[00:25:11] Speaker 02:
It just says positive factor.

[00:25:13] Speaker 02:
And so they check the box that says positive factor and that ends the entire inquiry.

[00:25:18] Speaker 02:
And those are the only cases in which there's been a conclusion that there's no jurisdiction of the board to review the qualifications.

[00:25:25] Speaker 02:
But here, this agency chose, for better or worse, to enact a very specific qualification-based directive with regard to veterans.

[00:25:34] Speaker 02:
Why doesn't that imbue the MSPB with the jurisdiction to actually review the qualifications to ensure that directive has been followed?

[00:25:43] Speaker 02:
I know that was a very long question, and if you want me to clarify any of it, I can.

[00:25:48] Speaker 01:
If you could please reiterate your point just to make sure I address only what you're looking for.

[00:25:53] Speaker 02:
Why doesn't the MSPB have jurisdiction to review the qualifications in light of the DOD directive, which is very clear,

[00:26:02] Speaker 02:
and says, veterans, if all things are tied, veterans have to be chosen.

[00:26:05] Speaker 02:
So why doesn't the MSPB have jurisdiction to decide whether all things were, in fact, tied or not?

[00:26:12] Speaker 01:
Well, as this court discussed in Sean Robey versus Department of Justice, that the MSPB does lack jurisdiction.

[00:26:22] Speaker 02:
But that was a case in which there wasn't a directive like this one.

[00:26:25] Speaker 02:
That's what I'm trying to suggest to you, is every single case before this involved a different agency that just said,

[00:26:32] Speaker 02:
It's you consider a veteran's preference to be a positive factor.

[00:26:35] Speaker 02:
And they say nothing else.

[00:26:37] Speaker 02:
They have no specific mandate like this agency does.

[00:26:41] Speaker 02:
So why doesn't the directive at issue in this case imbue the board with jurisdiction to assess whether that directive was complied with?

[00:26:51] Speaker 01:
Your Honor, that would require changes, statutory changes for the MSPB to have.

[00:26:58] Speaker 02:
I see nothing in the statute that discusses

[00:27:00] Speaker 02:
or prevents the MSPB from looking at the qualifications of the two candidates to ensure that this directive was followed.

[00:27:10] Speaker 02:
What in the statute prevents the MSPB?

[00:27:12] Speaker 02:
What statutory changes are you telling me would be required?

[00:27:16] Speaker 01:
As relates to this case, in particular, and I do hope that this will answer the question for you.

[00:27:23] Speaker 01:
Mr. Bazan brings the question in the context of a prohibited personnel practices claim.

[00:27:29] Speaker 01:
which is specifically required to go to the Office of Special Counsel by 5 USC 1214A.

[00:27:37] Speaker 04:
That's one.

[00:27:38] Speaker 04:
That's one, the prohibited personnel practice.

[00:27:41] Speaker 04:
But the second is he's third of three.

[00:27:44] Speaker 04:
Correct.

[00:27:45] Speaker 04:
And in this factual posture, I have a problem with that.

[00:27:50] Speaker 01:
You have a problem with him being ranked third?

[00:27:52] Speaker 04:
I have a problem with the MSPB having jurisdiction to make the determination if he was

[00:27:59] Speaker 04:
second of two, and there was something in the record that indicated it was a tie, then I'd say they, under the rule, indeed they do have jurisdiction.

[00:28:12] Speaker 01:
And I don't wish to speak for every possible case that could be out there.

[00:28:16] Speaker 01:
With this particular case, yes, he was ranked third.

[00:28:19] Speaker 01:
There's nothing in the record to indicate

[00:28:21] Speaker 01:
that Mr. Bazan was equally well qualified.

[00:28:25] Speaker 01:
But isn't that because you denied him discovery?

[00:28:28] Speaker 01:
No, Your Honor.

[00:28:29] Speaker 01:
That is not.

[00:28:30] Speaker 01:
Because as you pointed out before, some of what Mr. Bazan was looking for was, for instance, Ms.

[00:28:37] Speaker 01:
Moriarty's performance evaluations.

[00:28:39] Speaker 01:
What he was trying to prove was that the position description was manipulated to give her a better chance of receiving the position

[00:28:46] Speaker 01:
than him.

[00:28:47] Speaker 01:
That is a prohibited personnel practice.

[00:28:49] Speaker 00:
But even if we can't review that, having presided over a lot of personnel cases over the years, when, for instance, someone says that they were denied a promotion because of their age, then the only way to make that determination is to look at the respective qualifications of the persons to see if, but for the age, this person would have likely gotten the position.

[00:29:17] Speaker 00:
How can you make that determination that, but for not giving him his veterans preference, he would have gotten a position?

[00:29:28] Speaker 01:
Well, the evidence on the record demonstrates that the experience in environmental law in the Civil Works Program were the most important qualifications for the position.

[00:29:37] Speaker 01:
The agreed upon material facts of the parties say that 43 of the 40- And if they manipulated that, it's a prohibited personnel practice.

[00:29:44] Speaker 01:
Correct, Your Honor.

[00:29:47] Speaker 01:
The decision memorandum at pages A36 through 38 sets forth the relative qualifications.

[00:29:54] Speaker 01:
Ms.

[00:29:54] Speaker 01:
Moriarty's qualifications are set forth specifically at three-page professional qualifications memorandum at A42 through 44, where it details the specific reasons why she was considered qualified for the position that they were hiring for.

[00:30:10] Speaker 01:
And there's also various testimony by Mr. Minch at pages A150, 151, 154, 158, 168, 171, and 172, in which he discusses that environmental law and experience in the civil works program are the most important factors.

[00:30:28] Speaker 01:
When looking at the decision memorandum at pages A36 through 38,

[00:30:38] Speaker 01:
discusses that Ms.

[00:30:39] Speaker 01:
Moriarty was unanimously selected because of her expertise in civil works and environmental law.

[00:30:46] Speaker 01:
Mr. Large's discussion at page 838 discusses how he lacks that same experience.

[00:30:53] Speaker 01:
And that is why he was not chosen for the position.

[00:30:56] Speaker 01:
So there's evidence in the record that he was never considered as well-qualified.

[00:31:00] Speaker 01:
And in addition, as you pointed out Judge Wallach, he was number three.

[00:31:06] Speaker 01:
Number two, Mr. Large, who testified on behalf of Mr. Bazan at the hearing, also testified that he'd been in his position at the Corps since 1988.

[00:31:15] Speaker 01:
So he had over 25 years of experience in this particular position.

[00:31:20] Speaker 00:
But he did actually differentiate between himself and Mr. Bazan, and basically say, I just don't have the qualifications that he has.

[00:31:27] Speaker 00:
Didn't he pretty much say that?

[00:31:29] Speaker 01:
I don't know that he said that, Your Honor.

[00:31:31] Speaker 01:
I do know that he mentioned that Ms.

[00:31:32] Speaker 01:
Moriarty was an environmental lawyer.

[00:31:34] Speaker 01:
And Mr. Bazan discusses in his brief repeatedly that the selectee Ms.

[00:31:39] Speaker 01:
Moriarty had only seven years of experience at the time she was hired while he had over 19.

[00:31:44] Speaker 01:
For going on years of service, so to speak, Mr. Large had 25 years.

[00:31:49] Speaker 00:
But Mr. Large was not eligible for a veteran's preference, isn't that right?

[00:31:54] Speaker 00:
Despite the fact that the deciding official thought he was, just because he happened to have been a veteran.

[00:32:00] Speaker 01:
He was a veteran because of the redactions and it was never discussed by the administrative judge whether or not he was entitled to veteran's preference.

[00:32:09] Speaker 01:
Again, it didn't get to that point because Ms.

[00:32:11] Speaker 01:
Moriarty was considered the best qualified.

[00:32:15] Speaker 01:
A few other things I'd like to point out, Your Honors.

[00:32:18] Speaker 01:
The administrative judge and the board made factual findings that Mr. Bazan's veteran's preference was considered as a positive factor.

[00:32:24] Speaker 01:
That's at pages A4 through five and A

[00:32:28] Speaker 01:
19 through 20 and For those reasons the board's decision should be affirmed.

[00:32:36] Speaker 02:
Thank you.

[00:32:38] Speaker 02:
Okay.

[00:32:38] Speaker 03:
Mr. Rizam, we'll give you two minutes of rebuttal time Thank you your honor We talked to there was a lot of talk about the factors of

[00:32:56] Speaker 03:
If the board were to go to A036, it sets out the seven factors for the position.

[00:33:07] Speaker 03:
They went to the approving official.

[00:33:10] Speaker 03:
This was the approval qualifications memorandum.

[00:33:15] Speaker 03:
There was no emphasis in the outgoing deputy

[00:33:24] Speaker 03:
of any kind with regards to civil works.

[00:33:27] Speaker 00:
Yeah, but isn't that a prohibited personnel practice?

[00:33:30] Speaker 00:
I mean, even if we at our guts think that this was manipulated to give it to her, can we or the MSPB do anything about that piece of it?

[00:33:41] Speaker 03:
Yes, Your Honor.

[00:33:43] Speaker 03:
They denied it because they said that I was setting out a claim under the PPP.

[00:33:51] Speaker 03:
But that's not what I was doing.

[00:33:54] Speaker 03:
I was bringing a VEOA claim and there were, I don't believe you can divorce positive factor from someone violating their duties under the PPP.

[00:34:08] Speaker 03:
And I think that the board as an evidentiary matter can look at violations of the PPP to determine if there's a positive factor.

[00:34:17] Speaker 03:
I don't believe

[00:34:18] Speaker 03:
that you can have someone have a positive factor if the PPP is being violated by the selecting official.

[00:34:28] Speaker 04:
Supposing the environmental experience is important, what I see from the record is you had the JAG environmental law course.

[00:34:41] Speaker 04:
What else was there in your background that involved environmental law?

[00:34:48] Speaker 03:
Well, first, the position did.

[00:34:49] Speaker 03:
But in my background, I have had several classes.

[00:34:54] Speaker 03:
And part of my job in various times was the representation of commands.

[00:34:59] Speaker 03:
I was a command judge advocate four times.

[00:35:02] Speaker 03:
And in my duties as a command judge advocate, environmental issues, you know, with a facility that's there.

[00:35:08] Speaker 04:
The Army spills stuff all the time.

[00:35:10] Speaker 03:
Yes, Your Honor.

[00:35:11] Speaker 03:
We do.

[00:35:12] Speaker 03:
And that's why I went to the environmental course.

[00:35:15] Speaker 03:
I also went to the Navy's

[00:35:17] Speaker 03:
environmental course as well.

[00:35:21] Speaker 03:
So I do have a background in environmental law.

[00:35:28] Speaker 02:
Okay, Mr. Basan.

[00:35:29] Speaker 02:
I think that we need to be over this particular case.

[00:35:31] Speaker 02:
We've gone well over our time.

[00:35:33] Speaker 02:
So I thank both counsel for their argument.

[00:35:35] Speaker 02:
The case is taken under submission.

[00:35:37] Speaker 02:
Our next