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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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