UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEMAL A. CHEATHAM, DOCKET NUMBER
Appellant, DC-3330-15-0024-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 10, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 1
Jemal A. Cheatham, Silver Spring, Maryland, pro se.
Brett R. Howard, Esquire, APO, APO/FPO Europe, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
¶2 On June 11, 2014, the appellant applied for an Accounting Officer position
in Wiesbaden, Germany, with the Department of the Army. Initial Appeal File
(IAF), Tab 1 at 8, 16-17. The agency did not select the appellant for the position
notified him that he was outside of the area of consideration identified in the
vacancy announcement. 2 Id. at 10. After exhausting his veterans’ preference
administrative remedy with the Department of Labor, id. at 18-19, the appellant
filed an appeal with the Board pursuant to VEOA, 5 U.S.C. § 3330a(d)(1), in
which he asserted that the agency had denied him his veterans’ preference rights,
IAF, Tab 1 at 6. The appellant requested a hearing. Id. at 3.
¶3 The administrative judge issued a jurisdictional order that informed the
appellant of the nonfrivolous allegations he had to raise in order to establish the
Board’s VEOA jurisdiction and ordered the appellant to file a statement on the
issue within 20 days. IAF, Tab 2 at 2-3. The order informed the appellant that if
he showed that the Board had jurisdiction, the administrative judge would
adjudicate the appeal and schedule a hearing if he requested one. Id. at 3. The
appellant timely responded to the jurisdictional order. IAF, Tab 3.
¶4 The agency also submitted a response and motion to dismiss the appeal for
lack of jurisdiction. IAF, Tab 6 at 4-8. The agency asserted that the appellant
had failed to establish that he was a preference eligible because the
documentation he submitted with his application for the position, which consisted
of two DD-214 forms, showed only National Guard Service, which did not entitle
him to veterans’ preference status. IAF, Tab 6 at 6, 35-36. In response to the
agency’s motion, the appellant submitted a letter from the Department of
Veterans Affairs (VA) dated January 26, 2014, establishing his veterans’
preference for civil service employment. IAF, Tab 9 at 4. The appellant did not
2
The appellant subsequently also received notification that he was not referred for the
position due to an incomplete application package. IAF, Tab 1 at 11.
3
indicate, however, whether he had submitted this document to the agency along
with his application materials.
¶5 Without further development of the record, and without holding the
requested hearing, the administrative judge issued an initial decision denying the
appellant’s request for corrective action on the merits. IAF, Tab 10, Initial
Decision (ID). The administrative judge found that the appellant had established
Board jurisdiction and that a decision could be made on the merits of the appeal
without holding a hearing because there were no genuine issues of material fact.
ID at 1, n.1. Specifically, he found that the appellant failed to show that the
agency violated his veterans’ preference rights because the appellant only
provided the agency with documents showing that he had served in the Army
National Guard, which the agency appropriately determined did not entitle him to
veterans’ preference status. ID at 3-4. Lastly, the administrative judge
determined that the fact that the appellant submitted a copy of the VA letter
showing his preference-eligible status that was dated more than 6 months after the
agency made its hiring determination did not retroactively change his status at the
time he applied. ID at 4.
¶6 The appellant has filed a petition for review in which he asserts for the first
time that he submitted a copy of the VA letter to the agency on June 11, 2014,
along with his other application materials, and that the administrative judge erred
in finding that the letter was dated more than 6 months after the agency made its
hiring determination. Petition for Review (PFR) File, Tab 1 at 4-5. The appellant
also submits for the first time on review a copy of his electronic application
package, which identifies the name, type, and date of the documents that he
submitted with his application, including a “Veteran Preference Letter” submitted
on June 11, 2014. PFR File, Tab 1 at 7. The agency has not filed a response to
the appellant’s petition.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 As an initial matter, we agree with the appellant that the administrative
judge improperly determined that the January 26, 2014 VA letter is dated 6
months after the agency made its hiring determination. The record below reflects
that the vacancy announcement for the position was open from June 6, 2014, to
June 12, 2014, and, according to the agency, it reviewed the appellant’s
application on August 6, 2014, and advised him that he would not receive further
consideration. IAF, Tab 6 at 5, 17, 28. Thus, we find that the VA letter is dated
over 6 months prior to the agency’s determination. IAF, Tab 9 at 4. Further, for
the reasons set forth below, we find that the appellant was not provided a full and
fair opportunity to submit evidence regarding the merits of the appeal, including
evidence relating to his preference-eligible status and whether, based on the
materials he submitted to the agency with his application for the position, he
established that he was entitled to preference-eligible status.
¶8 The Board has the authority to decide the merits of a VEOA appeal without
a hearing if there is no genuine dispute of material fact and one party must prevail
as a matter of law. Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 10
(2010); Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009).
Where an administrative judge declines to hold a hearing, he is responsible for
advising the parties that there will be no hearing, setting a date on which the
record will close, and affording the parties an opportunity to make submissions
regarding the merits before that date. See Jarrard, 113 M.S.P.R. 502, ¶ 11;
Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 8 (2001).
¶9 Here, as noted, the administrative judge informed the appellant that if he
found that the Board had jurisdiction, he would schedule the appellant’s requested
hearing. IAF, Tab 2 at 3. At no time before he issued his initial decision,
however, did the administrative judge advise the parties that there would be no
hearing on the appeal, nor did he provide them with an opportunity to make
submissions regarding the merits. Although the administrative judge gave the
5
appellant an opportunity to assert nonfrivolous allegations of the Board’s VEOA
jurisdiction, we find that he did not afford the appellant a full and fair opportunity
to prove by preponderant evidence that he is a preference eligible in regard to the
merits of his appeal and that the appellant’s veterans’ preference status is a
genuine dispute of material fact as to which the agency is not entitled to prevail
as a matter of law. Moreover, to the extent that a copy of the appellant’s
employment application and supporting documentation is not a part of the record
below, disputed factual issues exist as to whether the appellant submitted a copy
of the VA letter or other documentation establishing his preference-eligible status
to the agency with his application for the position.
¶10 Under these circumstances, we must remand this appeal to the regional
office. On remand, the administrative judge shall provide the parties with an
opportunity to make submissions regarding the merits of this appeal. Moreover,
if the parties’ submissions show that there is a factual dispute material to the
issue of whether the appellant is entitled to relief under VEOA, the administrative
judge shall hold a hearing on the appeal, as requested by the appellant. See
Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001). In
the absence of such a showing, the appeal may be adjudicated on the record
without a hearing. See id.
6
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.