UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ORLANDO PEREZ, DOCKET NUMBER
Appellant, DA-3443-15-0125-I-1
v.
DEPARTMENT OF JUSTICE, DATE: August 7, 2015
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Orlando Perez, El Paso, Texas, pro se.
K. Tyson Shaw, Esquire, Washington, D.C., 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
dismissed for lack of jurisdiction his appeal challenging agency actions that
resulted in his nonselection for promotions and other career development
opportunities. For the reasons discussed below, we GRANT the appellant’s
petition for review, VACATE the initial decision, and REMAND the appeal to the
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
regional office for further adjudication under the Veterans Employment
Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA).
BACKGROUND
¶2 The appellant filed an appeal alleging that he had not been selected for
numerous positions and other favorable career development opportunities in
violation of his veterans’ preference rights. Initial Appeal File (IAF), Tab 1. He
also alleged that these nonselections were the result of discrimination and
retaliation for protected equal employment opportunity activity. Id.
¶3 The administrative judge issued an acknowledgment order stating that the
Board could have jurisdiction over his nonselections under the Whistleblower
Protection Act, USERRA, or VEOA, and she ordered the appellant to file
evidence and argument to establish that the agency’s actions were within the
Board’s jurisdiction. IAF, Tab 2. The administrative judge issued a separate
order that informed the appellant of what he must allege to establish the Board’s
jurisdiction under VEOA. IAF, Tab 3. She specifically ordered him to submit
evidence and argument to prove that he had exhausted the U.S. Department of
Labor (DOL) complaint process and to provide a statement that would satisfy his
burden regarding the other jurisdictional requirements for a VEOA claim. Id. at
6-7. The appellant responded that the agency violated his veterans’ preference
rights by not selecting him ahead of those without veterans’ preference and not
giving proper credit to his applications. IAF, Tab 6 at 4-5. The appellant also
stated that he elected not to file with DOL and instead filed a “mixed case”
directly with the Board under 5 C.F.R. § 1201.154(b). Id.
¶4 The administrative judge issued an initial decision, without holding a
hearing, finding that the appellant’s nonselection claims were not independently
appealable to the Board and that the appellant had failed to establish the Board’s
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jurisdiction under VEOA because he had not shown he exhausted his remedies
before DOL. IAF, Tab 13, Initial Decision (ID).
¶5 The appellant has filed a petition for review, alleging among other things
that, after the initial decision was issued, he received a letter from DOL closing
its investigation into his veterans’ preference complaint. Petition for Review
(PFR) File, Tab 1. The agency has filed a response in opposition to the petition.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over the appellant’s request for corrective action under
VEOA concerning the complaint he exhausted with DOL.
¶6 To establish the Board’s jurisdiction under VEOA based on an alleged
violation of veterans’ preference rights, the appellant must: (1) show that he
exhausted his remedy with DOL; and (2) make a nonfrivolous allegation that
(a) he is a preference eligible within the meaning of VEOA, (b) the action at issue
took place on or after the October 30, 1998 enactment of VEOA, and (c) the
agency violated his rights under a statute or regulation relating to veterans’
preference. Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349,
¶ 6 (2008). An appellant need not state a claim upon which relief can be granted
for the Board to have jurisdiction over a VEOA claim. Id. The Board has held
that an allegation in general terms that an appellant’s veterans’ preference rights
were violated is sufficient to meet the nonfrivolous allegation requirement. Id.,
¶ 7.
¶7 To meet the VEOA’s requirement that he exhaust his remedy with DOL, the
appellant must establish that: (1) he filed a complaint with the Secretary of
Labor; and (2) the Secretary of Labor was unable to resolve the complaint within
60 days or has issued a written notification that the Secretary’s efforts have not
resulted in resolution of the complaint. Davis v. Department of Defense,
105 M.S.P.R. 604, ¶ 7 (2007). The record shows that the appellant filed his
appeal without first exhausting the DOL complaint process. IAF, Tab 6 at 4-5.
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Thus, the administrative judge appropriately determined that the Board lacked
jurisdiction over this appeal pursuant to VEOA. ID at 4. The appellant has filed
new evidence on review showing that he has now exhausted the DOL complaint
process concerning his nonselection for a position under vacancy announcement
LAT-2014-0043. 2 PFR File, Tab 1 at 7.
¶8 The remaining requirements for establishing the Board’s jurisdiction under
VEOA also have been met. The appellant made a nonfrivolous allegation that he
is a preference eligible within the meaning of VEOA. IAF, Tab 1, Exhibit 2. The
actions at issue took place after the October 30, 1998 enactment of VEOA. IAF,
Tab 7 at 43-46. The appellant claimed that the agency failed to properly credit
his experience pursuant to 5 U.S.C. § 3311 and 5 C.F.R. § 337.101 and that he
had superior experience compared to the selectee. IAF, Tab 1 at 6 of 15, Tab 6
at 5, Tab 9 at 5. Thus, we find that the appellant nonfrivolously alleged that the
agency violated his rights under a statute or regulation relating to veterans’
preference. See Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R.
88, ¶ 7 (2014) (the appellant’s nonfrivolous allegations that the agency did not
comply with 5 U.S.C. § 3311 and 5 C.F.R. § 302.302 by failing to consider the
full extent of his military and civilian experiences when reviewing his application
were sufficient to establish jurisdiction under VEOA); Haasz, 108 M.S.P.R. 349,
¶ 7 (an appellant’s allegation, in general terms, that his veterans’ preference
rights were violated is sufficient to meet the nonfrivolous allegation requirement).
¶9 Although the appellant prematurely filed his appeal below prior to
exhausting his remedies before DOL, the Board’s practice is to adjudicate an
2
The Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it is of sufficient weight to warrant an outcome different
from that of the initial decision and that it was unavailable before the record was closed
despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R.
268, 271 (1980); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980);
5 C.F.R. § 1201.115. Because the appellant’s new evidence is dated after issuance of
the initial decision and the information it contains was unavailable before the record
closed, and because it is material, we have considered it on review.
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appeal that was premature when filed but becomes timely while pending. See
Wooten v. Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). Because
the appellant filed his new evidence with the Board on April 5, 2015, which is
within 15 days after the date he received it, his appeal is timely. PFR File, Tab 1
at 7; see 5 U.S.C. § 3330a(d)(1) (requiring that a VEOA appeal be filed within
15 days after the date the complainant receives written notice from DOL of the
results of its investigation). Therefore, the appellant has now exhausted the DOL
complaint process as to a single vacancy announcement, vacancy announcement
LAT-2014-0043, and he may now pursue a VEOA appeal regarding that
nonselection before the Board and we must remand the appeal for that purpose.
See Wooten, 96 M.S.P.R. 671, ¶ 9.
¶10 We note that the DOL letter refers to this vacancy as a “merit promotion.”
PFR File, Tab 1 at 7. An individual is not entitled to veterans’ preference points
under merit promotion procedures, e.g., Dean v. Consumer Product Safety
Commission, 108 M.S.P.R. 137, ¶ 11 (2008); however, a preference-eligible
employee may be entitled to veterans’ preference in an open competitive
examination process, Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶¶ 20-21
(2005). The Board may decide a VEOA appeal on the merits without holding a
hearing where there is no genuine dispute of material fact and one party must
prevail as a matter of law once the record has been adequately developed. Haasz,
108 M.S.P.R. 349, ¶¶ 9-10. We decline to rule on the merits at this time,
however, because the record has not been adequately developed. The
jurisdictional order issued below stated that, if the appellant established
jurisdiction, the parties would have an opportunity to submit evidence and
arguments on the merits of the appeal at a hearing or through further development
of the written record. IAF, Tab 3 at 7. The parties should be given notice and an
opportunity to make submissions regarding the merits of the appeal prior to the
issuance of a decision on the merits. See Jarrard v. Department of Justice,
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113 M.S.P.R. 502, ¶ 11 (2010). Thus, under the circumstances, remand is
appropriate.
¶11 Although the Board uses a liberal pleading standard for allegations of
veterans’ preference violations in VEOA appeals, evidence of the exhaustion
requirement is mandatory under the statute and is not subject to the same liberal
construction. Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10,
aff’d, 445 F. App’x 347 (Fed. Cir. 2011), and overruled on other grounds by
Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 15 (2015). Because the
appellant has not filed any evidence that he exhausted the DOL complaint process
regarding his other nonselection claims, the Board lacks jurisdiction over these
claims. See id. Accordingly, in the remand initial decision, the administrative
judge may incorporate his prior jurisdictional finding that the appellant failed to
exhaust his remedy with DOL regarding the VEOA claims that he was denied
veterans’ preference when he was not selected for the Trust Fund Program
Specialist position advertised under vacancy announcement LAT-2013-0054, IAF,
Tab 1 at 7 of 15, the Senior Officer Specialist positions advertised under vacancy
announcements LAT-2013-0049, LAT-2010-0018, LAT-2010-0017, and
LAT-2009-0034, id. at 9-11 of 15, and any other unspecified positions that
comprise the twenty-two times the appellant alleges he was “passed over” for
promotions and other favorable work experiences, id. at 3 of 15.
The appeal may raise a claim under USERRA.
¶12 USERRA provides, in relevant part, that a person who has performed
service in a uniformed service shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of
employment on the basis of that performance of service. 38 U.S.C. § 4311(a). To
establish the Board’s jurisdiction over a USERRA discrimination claim arising
under 38 U.S.C. § 4311(a), the appellant must allege the following: (1) he
performed duty or has an obligation to perform duty in a uniformed service of the
United States; (2) the agency denied him initial employment, reemployment,
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retention, promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service.
Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009). It is well
established that a claim of discrimination under USERRA should be broadly and
liberally construed in determining whether it is nonfrivolous, particularly where,
as here, the appellant is pro se. Id., ¶ 9.
¶13 The appellant alleged that the agency discriminated against him based on
his status as a disabled veteran. IAF, Tab 1 at 4 of 15. He also alleged that his
qualifications are superior to those of the nonveteran selectees. Id. at 3 of 15. He
may have been attempting to raise a USERRA discrimination claim based on his
status as a veteran rather than, or in addition to, a VEOA claim. See Nahoney v.
U.S. Postal Service, 112 M.S.P.R. 93, ¶ 19 (2009) (remanding for further
adjudication concerning the potential USERRA claim, even though the appellant
never explicitly raised such a claim and only completed the sections of the initial
appeal form pertaining to VEOA). The appellant’s claim that his qualifications
were far superior to the selectees’ evinces his belief that the agency’s reasons for
not selecting him are pretextual. See Patterson v. Department of the Interior,
424 F.3d 1151, 1161 (Fed. Cir. 2005). Accordingly, on remand, the
administrative judge should provide the appellant with adequate notice of what is
required to establish the Board’s jurisdiction under USERRA and adjudicate such
a claim as appropriate. 3
The Board lacks jurisdiction to consider the prohibited personnel practices,
discrimination, retaliation, and unfair labor practice claims in this appeal.
¶14 The appellant has raised prohibited personnel practices, discrimination,
retaliation, and unfair labor practices claims in his appeal. IAF, Tab 1. He
3
On review, the appellant asserts he was denied discovery prior to issuance of the
initial decision. PFR File, Tab 1 at 3. Although the appellant has not shown he was
prejudiced by any discovery rulings in connection with the jurisdictional issues
addressed in the initial decision, the administrative judge shall allow for appropriate
discovery regarding the remaining VEOA and USERRA issues on remand.
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continues to argue on review that his claims are not limited to VEOA. PFR File,
Tab 1 at 3. The Board’s jurisdiction is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Nonselections are not directly
appealable to the Board and claims of prohibited personnel practices do not
provide independent bases for the Board’s jurisdiction. See Davis, 105 M.S.P.R.
604, ¶ 15; see also Harrison v. Department of Transportation, 16 M.S.P.R. 135,
136 n.1 (1983) (no law, rule, or regulation has created an independent right to
appeal a claim of an agency’s unfair labor practice to the Board). In VEOA and
USERRA appeals the Board cannot consider claims of prohibited discrimination
under 5 U.S.C. § 2302(b)(1) because neither statute grants the Board the authority
to consider those claims. Davis, 105 M.S.P.R. 604, ¶ 16. Accordingly, the Board
does not have jurisdiction to review the appellant’s claims of prohibited personnel
practices, discrimination, retaliation, and unfair labor practices except to the
extent necessary to adjudicate his VEOA and USERRA claims. See Lazaro v.
Department of Veterans Affairs, 666 F.3d 1316, 1320 (Fed. Cir. 2012);
Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15 (2001).
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.