                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID L. DAVIDSON,                              DOCKET NUMBER
                   Appellant,                        AT-3330-14-0603-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: December 15, 2014
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           David L. Davidson, Panama City Beach, Florida, pro se.

           Shari L. Oehrle, Pensacola, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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, VACATE the initial decision, and


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                                       BACKGROUND
¶2         The appellant is a GS-7 Contract Specialist in the Naval Acquisition
     Development Program at the Naval Air Warfare Center in Orlando, Florida.
     Initial Appeal File (IAF), Tab 1, Continuation Sheet, Question 5. He requested a
     transfer to Naval Surface Warfare Center Panama City Division (NSWC-PCD) on
     multiple occasions. Id.; IAF, Tab 11 at 24. The appellant alleges that his spouse,
     an employee at NSWC-PCD, also inquired about “transfer prospects” for him and
     was told by an agency manager “that he did not want married couples working for
     him.” IAF, Tab 7 at 5
¶3          In   addition   to   his   transfer   requests,   the   appellant,   who   is   a
     preference-eligible veteran, also applied for a GS-7 Contract Specialist position at
     NSWC-PCD. IAF, Tab 4 at 4-7. The appellant was not selected for the position,
     but two other preference-eligible veterans were.         IAF, Tab 6 at 10-11.      The
     selecting official for this vacancy was the same manager who allegedly told the
     appellant’s wife that he did not want spouses working under his supervision.
     IAF, Tab 7 at 5-6. According to the appellant, the selecting official checked his
     references after the selection decision had already been made and only because
     the appellant complained about his nonselection. Id.
¶4         The appellant filed a complaint with the Department of Labor’s (DOL)
     Veterans’ Employment and Training Services regarding his nonselection, alleging
     that his veterans’ preference was not considered, he was not evaluated based on
     merit, and his application did not receive bona fide consideration. IAF, Tab 11 at
     20.   DOL informed the appellant that it found no violation of his veterans’
     preference rights and advised the appellant of his right to file a Board appeal.
     IAF, Tab 7 at 8.
                                                                                         3

¶5            The appellant filed a Board appeal alleging that the he had been excluded
     from competition for the position in violation of his veterans’ preference. IAF,
     Tab 1, Continuation Sheet, Question 5.        The administrative judge issued an
     acknowledgment order on April 15, 2014, which permitted the parties to engage
     in discovery. IAF, Tab 2 at 2. According to the discovery deadlines established
     by the acknowledgment order, initial discovery requests were required to be
     served within 30 days of the date of the acknowledgment order, and initial
     discovery responses were due no later than 20 days after the date of service. Id.
¶6            The administrative judge also issued an order on VEOA jurisdiction and
     notice of the proof requirements. IAF, Tab 3. After receiving responses from
     both parties, the administrative judge issued an order notifying the parties that
     she intended to close the record in the appeal on May 28, 2014. IAF, Tab 8. The
     order gave both parties an opportunity to file additional evidence and argument
     for consideration. Id. After the record closed, the administrative judge issued an
     initial decision finding that the Board had jurisdiction over the appeal but
     denying the appellant’s request for corrective action because the appellant failed
     to establish that the agency denied him the right to compete for the position at
     issue.     IAF, Tab 14, Initial Decision at 3.     The appellant has filed a timely
     petition for review. Petition for Review (PFR) File, Tab 1. The agency has not
     filed a response.

                          DISCUSSION OF ARGUMENTS ON REVIEW
¶7            The Board has the authority to decide a VEOA appeal on the merits, without
     a hearing, where there is no genuine dispute of material fact and one party must
     prevail     as   a    matter   of   law.   Haasz     v.   Department   of   Veterans
     Affairs, 108 M.S.P.R. 349, ¶ 9 (2008) (citing Williamson v. U.S. Postal
     Service, 106 M.S.P.R. 502, ¶ 8 (2007); Davis v. Department of Defense, 105
     M.S.P.R. 604, ¶ 12 (2007)). A factual dispute is “material” if, in light of the
     governing law, its resolution could affect the outcome.            Waters-Lindo v.
                                                                                       4

     Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009).           A factual dispute is
     “genuine” when there is sufficient evidence favoring the party seeking an
     evidentiary hearing for the administrative judge to rule in favor of that party
     should that party’s evidence be credited.    Id.   Where the parties’ submissions
     contain genuine disputes of material fact that cannot be resolved on the written
     record, the Board has found it proper to conduct a hearing. See, e.g., Graves v.
     Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 18 (2010).
¶8         Preference eligibles or veterans who have been separated from the armed
     forces under honorable conditions after 3 years or more of active service may not
     be denied the opportunity to compete for vacant positions for which the agency
     making the announcement will accept applications from individuals outside its
     own workforce under merit promotion procedures. 5 U.S.C. § 3304(f)(1). The
     right to compete under section 3304(f)(1) does not require that the veteran or
     preference eligible be considered at every stage of the selection process up to that
     process’s final stage but does require that the individual be permitted to compete
     on the same basis as the other candidates.             Harellson v. U.S. Postal
     Service, 113 M.S.P.R. 534, ¶ 11 (2010).
¶9         It is undisputed that the appellant is a preference-eligible veteran, and the
     agency accepted applications for the position at issue from individuals outside its
     own workforce.    IAF, Tab 6 at 6, Tab 9 at 4.      It is also undisputed that the
     appellant applied for the position, his application was reviewed and the agency
     deemed him qualified, and his name was forwarded to the selecting official for
     consideration on the same certificate that was ultimately used to make the
     selections.   IAF, Tab 11 at 5, Tab 6 at 13-14.      These facts suggest that the
     appellant received some consideration, which might satisfy the agency’s
     obligation under 5 U.S.C. § 3304(f)(1).      See, e.g., Joseph v. Federal Trade
     Commission, 505 F.3d 1380, 1383-84 (Fed. Cir. 2007) (finding that a veteran was
     given a full opportunity to compete when he applied, was found qualified, and
     was interviewed for a position but not selected); Harellson, 113 M.S.P.R. 534,
                                                                                         5

      ¶ 11 (stating that the same evidence establishing that the agency accepted and
      considered the appellant’s application also indicates that he was permitted to
      compete under 5 U.S.C. § 3304(f)(1)).
¶10         Notwithstanding the undisputed facts, however, there remain genuine
      disputes of material fact regarding what, if any, consideration the selecting
      official gave the appellant’s application.        Specifically, the appellant has
      established a genuine dispute regarding whether the agency “inappropriately
      applied nepotism rules,” PFR File, Tab 1 at 4, and erroneously eliminated him
      from consideration, see supra ¶¶ 2-3.      The Board has found that a veteran is
      denied his right to compete under 5 U.S.C. § 3304(f)(1) when an agency accepts
      his application, and determines that he is qualified, but the selecting official does
      not give his application any further consideration.          See, e.g., Shapley v.
      Department of Homeland Security, 110 M.S.P.R. 31, ¶¶ 9-17 (2008) (holding that
      the appellant was denied the right to compete when he was found qualified for a
      position, was placed on the certificate of eligibles, but the certificate was not
      provided to the selecting official for consideration). The appellant alleges that
      the selecting official improperly excluded him from competition for invalid
      reasons other than merit, which presents a genuine dispute of material fact. PFR
      File, Tab 1 at 10; cf. Modeste v. Department of Veterans Affairs, 121 M.S.P.R.
      254, ¶¶ 5-6 (2014) (an agency cannot rely on a labor agreement to justify its
      failure to consider a veteran in violation of 5 U.S.C. § 3304(f)(1) by improperly
      segregating applicants); Gingery v. Department of Veterans Affairs, 114 M.S.P.R.
      175, ¶ 10 (2010) (an agency’s internal policy may not override applicable
      statutes, including 5 U.S.C. § 3304(f)(1)); Phillips v. Department of the
      Navy, 110 M.S.P.R. 184, ¶¶ 7-12 (2008) (examining the agency’s explanation for
      not further considering the appellant’s application).        Because there remain
                                                                                       6

genuine disputes of material fact, we find it appropriate to remand this appeal for
a hearing on the merits of the appellant’s VEOA right-to-compete claim. 2


                                        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.




2
  On review the appellant also argues that he was prejudiced when the record closed
prior to the agency responding to his discovery requests. PFR File, Tab 1 at 6. The
appellant’s discovery requests were not submitted as part of his petition for review, and
thus the Board is unable to determine whether not receiving responses to those requests
was prejudicial to the appellant. However, because the appeal will be remanded for
further adjudication, the administrative judge should afford both parties an opportunity
to complete any outstanding discovery prior to the hearing.
