                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SHAWN M. TINNEY,                                DOCKET NUMBER
                  Appellant,                         AT-3330-14-0833-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: February 25, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Shawn M. Tinney, Orlando, Florida, pro se.

           Obisia Rodriguez, Gulfport, Mississippi, 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
     dismissed for lack of jurisdiction in part, and denied his request for corrective
     action in part, his appeal under the Veterans Employment Opportunities Act
     (VEOA). Generally, we grant petitions such as this one only when: the initial


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     decision contains erroneous findings of 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 10-point veteran, Initial Appeal File (IAF), Tab 1 at 10,
     was previously employed by the Department of the Army as a GS-7 Firefighter.
     In May 2013, the agency issued a vacancy announcement for a GS-7 Firefighter,
     two positions, seeking as applicants current, permanent Department of Defense
     (DOD) employees and Veterans’ Recruitment Appointment (VRA) eligibles. Id.,
     Tab 18 at 13-19. The appellant applied and made the certificate of eligibles. Id.,
     Tab 1 at 12. However, the agency canceled the announcement without making a
     selection. Id. at 13. In August 2013, the agency reissued the announcement, id.,
     Tab 18 at 5-11, and again the appellant applied. This time, he was not referred on
     the basis that he had failed to submit a required certification. Id., Tab 1 at 18-19.
     In March 2014, the agency again issued a vacancy announcement for a GS-7
     Firefighter, two positions, seeking as applicants current, permanent DOD
     employees, VRA eligibles, and 30% or more disabled veterans. Id., Tab 18 at
     21-27. The appellant applied, id. at 28, and made the certificate of eligibles but
     was not selected.    Id. at 29.    In May 2014, he filed a complaint with the
     Department of Labor (DOL) challenging his 2014 nonselection, arguing that the
                                                                                          3

     agency failed to apply his veterans’ preference and improperly selected a
     nonveteran. Id., Tab 8 at 4-6. He also alleged that the agency improperly failed
     to retain his earlier applications and consider them in connection with the 2014
     announcement. Id. at 6. On June 30, 2014, DOL Veterans’ Employment and
     Training Service issued a decision finding that two certificates were prepared in
     connection with the 2014 vacancy announcement, a merit promotion certificate
     and a VEOA certificate, that the selecting official exercised his discretion to
     make the selections from the merit promotion certificate, and that therefore there
     was no violation of the appellant’s veterans’ preference rights. Id., Tab 1 at 35.
¶3        On appeal, the appellant repeated his claims that the agency violated his
     veterans’ preference rights through all three selection processes and that the
     violation included the agency’s failure to keep his earlier applications on file for
     3 years in accordance with the Office of Personnel Management’s Delegated
     Examining Operations Handbook (OPM Handbook). As to the 2014 nonselection,
     the appellant argued that, in selecting a nonveteran, the agency failed to comply
     with regulations for passing over a veteran. Id., Tab 1. He requested a hearing.
     Id. at 2. The administrative judge issued a comprehensive VEOA jurisdictional
     order to which she directed the appellant to respond, id., Tab 3, but he failed to
     do so.   Finding that there did not appear to be a factual dispute requiring a
     hearing, the administrative judge set a date for the close of the record. Id., Tab 6.
     Both parties filed additional submissions. Id., Tabs 8-11, 15, 17-18, 20.
¶4        In her initial decision, the administrative judge first addressed the 2013
     nonselections and the appellant’s claim that the agency failed to maintain his
     earlier applications for 3 years in violation of the OPM Handbook. Id., Tab 21,
     Initial Decision (ID) at 2. As to these issues, she found that the appellant failed
     to satisfy the VEOA exhaustion requirement. ID at 2-3. She further found that,
     even if the appellant had satisfied the exhaustion requirement regarding his claim
     that the agency failed to retain and refer his applications for a period of 3 years,
     such a claim does not constitute a nonfrivolous allegation of a violation of statute
                                                                                              4

     or regulation sufficient to satisfy VEOA jurisdictional requirements. ID at 3-4;
     5 U.S.C. § 3330a(a)(1)(B), (d)(1).          Accordingly, the administrative judge
     dismissed for lack of jurisdiction the appellant’s claims as to the 2013
     nonselections and the alleged violation of the OPM Handbook. ID at 4. She then
     addressed the 2014 nonselection. She found that the appellant established the
     Board’s jurisdiction over this claim, ID at 4, that the agency used a Merit
     Promotion Certificate of Eligibles to make the selections, and that, under 5 U.S.C.
     § 3304(f), the appellant was entitled to apply and to be considered for the
     positions but not otherwise to receive special treatment.              ID at 4-5.     The
     administrative judge found that the agency was free to select a nonveteran and did
     not have to use pass-over procedures to do so and that therefore the appellant
     failed to show that the agency violated his veterans’ preference rights in making
     those selections. ID at 5. As to that nonselection, therefore, the administrative
     judge denied the appellant’s request for corrective action. ID at 6.
¶5         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has filed a response, id., Tab 3, and the appellant has
     replied to that response, id., Tab 4.
¶6         The appellant argues that, contrary to the administrative judge’s finding, he
     did exhaust before DOL his claim that the agency failed to maintain his earlier
     applications for 3 years in violation of the OPM Handbook. 2 Id., Tab 1 at 6. In
     support of his position, the appellant points to language in his complaint to DOL
     wherein he cited as error the agency’s failure to retain his first application and
     include it before reannouncing the vacancy later in 2013 and again in 2014. Id.,

     2
       The appellant does not specifically dispute the administrative judge’s finding that he
     failed to establish exhaustion with regard to the two 2013 nonselections. Because we
     find no basis to disturb that finding, we also find no basis to disturb her further finding
     that it was unnecessary for her to address the issue of equitab le to lling because it was
     not relevant to the proceedings as to those two nonselections. ID at 4 n.2; PFR File,
     Tab 1 at 7. It was not the appellant’s failure to file his DOL complaint within the
     statutory 60-day period, 5 U.S.C. § 3330a(a)(2)(A), that foreclosed the Board from
     exercising jurisdiction over his appeal regard ing the two 2013 nonselections.
                                                                                          5

     Tab 8 at 6. Although the appellant made that claim in his DOL complaint, he did
     not identify therein any statute or regulation relating to veterans’ preference that
     the agency allegedly violated in failing to maintain his earlier application. While
     the Board uses a liberal pleading standard for allegations of veterans’ preference
     violation in a VEOA appeal, see Slater v. U.S. Postal Service, 112 M.S.P.R. 28,
     ¶ 6 (2009), evidence of the exhaustion requirement is mandatory under the statute
     and is not subject to the same liberal construction.       See 5 U.S.C. § 3330a(d);
     Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10, aff’d, 445
     F. App’x 347 (Fed. Cir. 2011). As such, we agree with the administrative judge
     that the appellant’s reference in his complaint was insufficient to inform DOL of
     any particular alleged veterans’ preference violation and that he therefore did not
     show error in the administrative judge’s finding that he failed to exhaust his
     remedy with DOL as to his claim that the agency did not maintain his earlier
     applications. 3 See Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491,
     ¶ 11 (2012).
¶7        The appellant argues on review that the agency failed to show that any of
     the three certificates were merit promotion certificates. PFR File, Tab 1 at 7-8.
     Because we have agreed with the administrative judge that the appellant did not
     exhaust before DOL his claim regarding the two 2013 nonselections, it is only the
     2014 nonselection that is at issue.       And while the appellant urges that the
     agency’s evidence does not constitute proof, the vacancy announcement solicited
     applications from current DOD employees, VRA eligibles, and 30% or more
     disabled veterans. IAF, Tab 18 at 21. It did not solicit applications from all
     sources. Therefore, the selection process at issue was a merit promotion process.
     See Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶¶ 9-10 (2005). Moreover,


     3
       Based on our finding that, regarding this matter, the appellant failed to exhaust his
     remedy with DOL, we need not address his claim on appeal and on petition for review
     that in failing to maintain his earlier applications the agency violated the OPM
     Handbook.
                                                                                         6

     we note that the agency submitted the control sheet for the certificate of eligibles
     for the 2014 selection and the certificate itself, and they both reflect that the
     selection was made under merit promotion procedures. IAF, Tab 20 at 4, 5-16.
     The certificate includes the appellant’s name, id. at 15, and shows that the agency
     hired four individuals off of that certificate, three veterans and a nonveteran. 4 Id.
     at 9, 13, 16. In sum, the appellant has not shown error in the administrative
     judge’s finding that the appellant was allowed to compete under that vacancy,
     which he did, and that the agency was free to select anyone from that register.
     See Perkins, 100 M.S.P.R. 48, ¶ 9.
¶8         Finally, the appellant raises an issue concerning discovery, specifically, the
     way in which the administrative judge ruled on his motion to compel, and he also
     challenges her failure to rule on his motion to extend the close of the record. PFR
     File, Tab 1 at 5-6. The appellant filed below a motion to compel the agency to
     provide a copy of its policy doctrine concerning merit promotion job
     advertisements, an explanation for the number of job offers made in connection
     with the 2014 vacancy announcement, hiring certificates for all GS-7 Firefighter
     positions filled during the last 18 months, and information related to any panel
     convened for the 2014 selection. IAF, Tab 14. The administrative judge denied
     the motion on the basis that the appellant had not filed a proper discovery request.
     ID at 6 n.3. The appellant has not argued that he did so. The Board’s regulations
     provide that parties seeking discovery must start the process by serving a request
     for discovery on the representative of the other party in a specific manner,
     5 C.F.R. § 1201.73(a), and only if the other party fails or refuses to respond in
     full to a discovery request may the requesting party file a motion to compel,
     5 C.F.R. § 1201.73(c).    Because the appellant has not shown that he initiated
     discovery in accordance with the Board’s regulations, his motion to compel was
     not properly before the administrative judge, and she did not abuse her discretion
     4
       The announcement provided that it could be used to fill additional vacancies beyond
     the two for which it initially sought applications. IAF, Tab 18 at 25.
                                                                                   7

in denying it on that basis. In any event, the appellant has not shown how the
information he sought to discover would have changed the result in his appeal.
See Russell v. Equal Employment Opportunity Commission, 110 M.S.P.R. 557,
¶ 15 (2009). Regarding the appellant’s motion to extend the close of the record,
the record reflects that the administrative judge issued an order on August 28,
2014, stating that the record would close on September 12, 2014. IAF, Tab 6.
After making several submissions, id., Tabs 8-11, the appellant, on September 11,
2014, requested an extension of the close of the record date to allow the agency to
respond to information he claims he had requested during a September 9, 2014
telephonic status conference. 5 Id., Tab 12. To the extent that the administrative
judge erred in failing to rule on the appellant’s motion, he has failed to show, or
even argue, how his substantive rights were prejudiced, and therefore any such
error provides no basis for reversal of the initial decision. 6 Panter v. Department
of the Air Force, 22 M.S.P.R. 281, 282 (1984).

                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:




5
 Some of this information was included in the appellant’s contemporaneously filed
motion to compel. IAF, Tab 14.
6
   In his reply to the agency’s response to his petition for review, the appellant
references a Merit Systems Protection Board study from 2002, The Federal Merit
Promotion Program: Process vs. Outcome. PFR File, Tab 4 at 5. The study is not new
evidence, and therefore we will not consider it. Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980). The appellant also argues for the first time that the
agency’s hiring should be considered as from a register, a process to which veterans’
preference does apply. PFR File, Tab 4 at 6-7. Such new allegations may not be raised
in a reply to a response to a petition for review. 5 C.F.R. § 1201.114(a)(4).
                                                                                  8

                          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
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
                                                                           9

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.
