Marshall v. Dep't of Health & Human Serv., No. 09-3086
Final decision of the Merit Systems Protection Board (MSPB) dismissing claimant's petition for enforcement of a prior MSPB order requiring that the Department of Health and Human Services (HHS) reconstruct a selection process for a position in the competitive service, arising from its erroneous selection of a non-veteran over the claimant, is reversed and remanded as the MSPB abused its discretion in dismissing claimant's petition because when an agency violates a veteran's preference rights during selection in the competitive service and when it is undisputed that the agency would have selected the veteran for the position sought but for the violation, section 3330c requires the agency to offer the same, or as near as possible, a substantially equivalent position to the veteran. Moreover, under section 3330c the veteran is also entitled to receive compensation for any loss of wages or benefits suffered by reason of the veterans' preference rights violation involved.
Appeal from: Merit Systems Protection Board
Decided December 1, 2009
Opinion by Circuit Judge Moore
For Appellant: Andrew J. Dhuey, Berkeley, California
For Appellee: Christopher A. Bowen, US Department of Justice, Washington DC.