                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARVIN C. ARNOLD,                               DOCKET NUMBER
                  Appellant,                         DC-3330-13-0066-B-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 26, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Marvin C. Arnold, Spring Lake, North Carolina, pro se.

           Tracy A. Allred, APO/AE Europe, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s request for corrective relief under the Veterans
     Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     material fact; the initial decision is based on an erroneous interpretation of statute
     or regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.               5 C.F.R.
     § 1201.113(b).
¶2         The appellant, a GS-12 in the agency’s Family Advocacy Office, filed an
     appeal under the VEOA alleging that the agency violated his veterans’ preference
     rights by failing to accord him veterans’ preference in a competition for
     promotion. MSPB Docket No. DC-3330-13-0066-I-1, Initial Appeal File (IAF),
     Tab 1. The administrative judge dismissed the appeal for lack of jurisdiction,
     finding that the appellant had not met the jurisdictional requirement that he
     exhaust his administrative remedies with the Department of Labor (DOL). IAF,
     Tab 7, Initial Decision. On petition for review, the appellant established that he
     had exhausted his administrative remedies with regard to his nonselection under
     Vacancy Announcement AP-2013-0003-VPH. MSPB Docket No. DC-3330-13-
     0066-I-1, Petition for Review (PFR) File, Tab 1.         The Board found that the
     appellant had established jurisdiction and remanded the appeal for further
     adjudication, including a determination of “to which job posting the exhaustion
     letter applies.” PFR File, Tab 7.
¶3         On remand, the administrative judge found that the exhaustion letter applied
     to Vacancy Announcement EUJJ12726235689646R (689646) based on the
                                                                                       3

     agency’s identifying the vacancy at issue and the appellant’s confirmation.
     MSPB Docket No. DC-3330-13-0066-B-1, Remand Appeal File (RAF), Tab 8,
     Remand Initial Decision (RID) at 1-2. She also found that the vacancy at issue
     was a merit promotion announcement, and as such, the appellant was not entitled
     to veterans’ preference points in the selection process. RID at 3. Thus, she found
     that the appellant failed to show that his rights to veterans’ preference were
     violated when he was not selected for the vacancy that he identified. RID at 4.
¶4        In his petition for review, the appellant suggests that the administrative
     judge may have erred in finding that the vacancy at issue in this appeal was
     689646. MSPB Docket No. DC-3330-13-0066-B-1, Remand Petition for Review
     File, Tab 1. He suggests that the vacancy may have been 651668. As explained
     below, we find that the appellant’s assertion does not rise to a nonfrivolous
     allegation of fact, and careful examination of the record, including the agency’s
     evidence, establishes that Vacancy Announcement 689646 was the subject of
     DOL’s letter to the appellant indicating that he had exhausted his administrative
     procedures. Cf. Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325, 329 (1994) (to
     the extent that the agency’s evidence constitutes mere factual contradiction of the
     appellant’s otherwise adequate nonfrivolous factual allegation, the Board may not
     weigh evidence and resolve conflicting assertions of the parties and the agency’s
     evidence may not be dispositive).
¶5        Below, the agency indicated that the appellant had applied for positions
     under two Vacancy Announcements, identified as 689646 and 651668.            RAF,
     Tab 7. The agency stated that the appellant filed complaints with DOL regarding
     both vacancies and that DOL dismissed the complaint regarding Vacancy
     Announcement 651668 as untimely filed.           Id.   The agency references a
     submission in another Board appeal filed by the appellant, Arnold v. Department
     of the Army, MSPB Docket No. DC-3330-13-0139-I-1, as establishing that DOL
     dismissed the appellant’s complaint regarding Vacancy Announcement 651668 as
                                                                                     4

     untimely, and thus DOL’s letter finding that the appellant exhausted his
     administrative procedures must apply to Vacancy Announcement 689646.
¶6        The agency failed to submit into the record in this appeal the submission
     that it references. However, the Board has held that it is within the scope of its
     authority to take official notice of the evidence in an appellant’s prior appeal.
     See McNeel v. Office of Personnel Management, 113 M.S.P.R. 356, ¶ 7 n.1.
     (2010); see also Wagner v. Environmental Protection Agency, 54 M.S.P.R. 447,
     454 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). We have reviewed the
     submission that the agency references. Included with that submission is a letter
     to the appellant from DOL informing him that his complaint was untimely filed.
     MSPB Docket No. DC-3330-13-0139-I-1, IAF, Tab 3. Also included is a copy of
     an email from DOL to the agency about the appellant’s untimely complaint
     regarded Vacancy Announcement 651668. Id; cf. Gingery v. Office of Personnel
     Management, 119 M.S.P.R. 43, ¶ 19 (2012) (the appellant’s request for corrective
     action under VEOA must be denied because he failed to meet the time limit for
     filing a complaint with the Secretary of Labor under 5 U.S.C. § 3330a(a)(2)(A)).
     The email also establishes that Vacancy Announcement AP-2013-0003-VPH, the
     vacancy announcement referenced in the letter to the appellant from DOL upon
     which the Board based its finding that the appellant established jurisdiction over
     his appeal, and Vacancy Announcement 689646 are the same announcement. We
     find that the administrative judge properly found that his appeal involved
     Vacancy Announcement 689646.
¶7        The appellant also asserts on petition for review, as he did below, that the
     agency violated his rights as a veteran in failing to select him for the GS-13
     Supervisory Social Worker position in Vacancy Announcement 689646.
     Preference eligibles and other specified veterans are guaranteed the right to
     compete under merit promotion procedures. See Brandt v. Department of the Air
     Force, 103 M.S.P.R. 671, ¶¶ 9-15 (2006). However, unlike in the competitive
     examination process, preference-eligible veterans such as the appellant are not
                                                                                  5

entitled to any point preferences in the merit promotion process. See Perkins v.
U.S. Postal Service, 100 M.S.P.R. 48, 51 (2005). Here, the appellant was clearly
allowed to compete for the position at issue, and his name was among those
forwarded to the selecting official for consideration. RAF, Tab 7 at 16 of 19. We
therefore find that the administrative judge properly found that the agency did not
violate the appellant’s veterans’ preference rights in the selection process under
Vacancy Announcement 689646.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
                                                                                6

Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
