                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID J. MCCAULEY,                              DOCKET NUMBER
                   Appellant,                        CH-3443-14-0099-I-3

                  v.

     DEPARTMENT OF VETERANS                          DATE: July 8, 2015
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           David J. McCauley, Saint Charles, Missouri, pro se.

           Kimberly Negley, Saint Louis, Missouri, 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, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 filed an appeal alleging that the agency failed to select him
     for various positions, and the appeal was dismissed without prejudice to allow
     him an opportunity to exhaust his administrative remedies.               McCauley v.
     Department of Veterans Affairs, MSPB Docket No. CH-3443-14-0099-I-1, Initial
     Appeal File (IAF), Tabs 1, 14. 2 Upon refiling, the appellant clarified that his
     appeal was limited to the agency’s decision not to select him for a Title 38
     Medical Support Assistant (MSA) position (vacancy announcement STL-T38H-
     13-911450), and he alleged that the agency did not properly consider his status as
     a veteran.   McCauley v. Department of Veterans Affairs, MSPB Docket No.
     CH-3443-14-0099-I-2, Initial Appeal File (I-2 IAF), Tabs 1, 10.           The agency
     conceded that it filled the vacancies pursuant to the Master Agreement between
     the agency and the American Federation of Government Employees, which
     required the agency to first consider facility-wide candidates. See I-2 IAF, Tab 7
     at 14, Subtab 4j at 2 (“[F]irst and full consideration shall be given to any best
     qualified candidates within the facility (or more narrow area).”). There appears
     to be no dispute that the appellant was not a facility-wide candidate.
¶3         The administrative judge scheduled a status conference to apprise the
     parties of the Board’s decision in Modeste v. Department of Veterans
     Affairs, 121 M.S.P.R. 254 (2014), which held that the agency’s reliance on its
     master labor agreement did not excuse its violation of Mr. Modeste’s right to
     compete under VEOA. See I-2 IAF, Tab 13. During this conference, the agency
     2
       During the course of the appeal, the appellant raised allegations of reprisal for
     whistleblowing activity. See IAF, Tab 12. The regional office docketed a separate
     appeal regarding these allegations and issued an initial decision on June 25, 2015, see
     McCauley v. Department of Veterans Affairs, MSPB Docket No. CH-1221-14-0721-
     W-1, Initial Decision (June 25, 2015). We deny the appellant’s request to join these
     appeals.
                                                                                         3

     indicated that additional MSA positions became available after the MSA positions
     at issue in this appeal had been filled. See I-2 IAF, Tab 14 at 1. According to the
     administrative judge:
           The agency further reported that it has made preliminary selections
           for the additional positions and that due to a clerical error, the
           Appellant and four other veterans were not included on the
           certificate used to make the selections. The agency proposed the
           following as a reconstruction remedy: (1) the agency will hold the
           preliminary selections in abeyance, (2) a certificate will be created to
           include the Appellant and the four other veterans, (3) the certificate
           will be forwarded to the hiring authority, and (4) the Appellant and
           the four other veterans will be offered interviews. The agency
           estimated it would take approximately two weeks to initiate the
           process.
     Id. The appellant agreed to the agency’s proposed reconstruction remedy and to
     have his appeal dismissed without prejudice.        Id. at 2.   On July 2, 2014, the
     appeal was dismissed without prejudice for 90 days. See I-2 IAF, Tab 15.
¶4        Approximately 50 days later, on August 21, 2014, the appellant filed
     another appeal, alleging that the agency failed to fulfill its obligations in the
     reconstructed selection process and that he was interviewed for another position
     at a lower pay grade. See McCauley v. Department of Veterans Affairs, MSPB
     Docket No. CH-3443-14-0099-I-3, Initial Appeal File (I-3 IAF), Tab 1.             The
     administrative   judge   issued   an   initial    decision   noting   the   following:
     (1) the appellant was interviewed for an MSA position; (2) he was informed that
     he had been selected for one of the MSA positions; (3) he declined the offer; and
     (4) the details of the offered position were the same as one of the positions for
     which he initially had applied.    I-3 IAF, Tab 9, Initial Decision (ID).         The
     administrative judge found that the agency complied with all of its obligations
     under the agreed-upon reconstruction remedy and that the appellant was therefore
     provided with a lawful selection process.        See ID at 6-7.   The administrative
     judge denied the appellant’s request for corrective action, finding that he was not
     denied a meaningful opportunity to compete for the MSA position and he did not
                                                                                               4

     demonstrate that his nonselection violated one or more of his statutory or
     regulatory veterans’ preference rights. See ID at 7-8.
¶5         The appellant has filed a petition for review, the agency has filed a
     response, and the appellant has filed a reply. See Petition for Review (PFR) File,
     Tabs 1-2, 4.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶6         On petition for review, the appellant alleges, among other things, that the
     selection process was not properly reconstructed, and he challenges the
     administrative judge’s conclusion that he was offered the same position that was
     advertised in the original vacancy announcement. PFR File, Tab 1 at 1-3. He
     also asserts that the agency has “an integrity issue.” Id. at 2.
¶7         An appellant must receive explicit information on what is required to
     establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection
     Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).               Other than noting that an
     unsuccessful applicant may challenge a nonselection as a violation of his
     veterans’ preference rights, see IAF, Tab 2, the administrative judge did not give
     the appellant adequate notice of the jurisdictional requirements for a veterans’
     preference appeal or a right to compete appeal, 3 see, e.g., Lazaro v. Department
     of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (explaining how to
     establish Board jurisdiction over a veterans’ preference appeal brought pursuant
     to   5   U.S.C.     § 3330a(a)(1)(A));      Becker     v.   Department      of    Veterans
     Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (explaining how to establish Board

     3
       The agency discussed the jurisdictional burden in a veterans’ preference appeal in its
     submission on jurisdiction and motion to dismiss, IAF, Tab 11 at 6-7, and the Board has
     held that such notice could cure the administrative judge’s error in this regard, see, e.g.,
     Nichols v. Department of the Interior, 69 M.S.P.R. 386, 388-89 (1996). We conclude,
     however, that the agency’s discussion of the jurisdictional burden does not constitute
     sufficient jurisdictional notice to cure the administrative judge’s error because the
     appeal was subsequently dismissed without prejudice pursuant to the parties’
     agreed-upon reconstruction remedy, and it does not appear that the appellant was on
     notice that he still had to prove that the Board has jurisdiction over the appeal.
                                                                                            5

     jurisdiction over a “right to compete” appeal under 5 U.S.C. § 3330a(a)(1)(B)).
     Therefore, we vacate the initial decision and remand the appeal for the
     administrative judge to give proper jurisdictional notice for a veterans’ preference
     appeal and a right to compete appeal.
¶8         We wish to make one point of clarification if the administrative judge finds
     that the Board has jurisdiction over the appeal on remand. The administrative
     judge stated in the initial decision that “the only remaining issue is whether the
     [agency] has fully complied with its obligations under the reconstruction remedy
     agreed upon by all parties.” ID at 6. Even if the agency complied with each of
     the terms of the parties’ agreed-upon reconstruction remedy, 4 the administrative
     judge must still determine whether, through the agency’s reconstructed selection
     process, the appellant received all the relief to which he would have been entitled
     if he had prevailed on his VEOA claim before the Board.                 See Phillips v.
     Department of the Navy, 114 M.S.P.R. 19, ¶¶ 14-20 (2010) (concluding that the
     agency’s “hypothetical” reconstructed selection process did not give the appellant
     an opportunity to compete because the agency did not remove the original
     selectees, the members of the reconstructed selection board were not the original
     selection board members, and it was not clear how many positions had been
     filled); see also Wheeler v. Department of Defense, 113 M.S.P.R. 376, ¶ 18
     (2010) (finding that, because the appellant’s assertions that the agency violated
     his right to compete during the reconstructed hiring process were without merit,
     he had obtained all of the relief he could have obtained had he prevailed on his
     VEOA claim before the Board).

     4
       We do not consider the parties’ apparent agreement, memorialized in an order from a
     status conference, see I-2 IAF, Tab 14, to be a settlement agreement that resolves the
     initial appeal because the administrative judge did not make a finding of Board
     jurisdiction, and there is no discussion of the voluntariness of the agreement and/or the
     parties’ intent that the agreement be enforceable by the Board. This conclusion is
     buttressed by the fact that the administrative judge did not dismiss the appeal in MSPB
     Docket No. CH-3443-14-0099-I-2 as settled, and she did not treat the appellant’s matter
     in MSPB Docket No. CH-3443-14-0099-I-3 as a compliance appeal.
                                                                                     6

¶9         The appellant raises concerns below and on petition for review that the
     position for which he was interviewed and subsequently selected was not the
     same position for which he originally had applied. See I-3 IAF, Tabs 1, 3; see
     also PFR File, Tab 1. Even if the Board had jurisdiction over the appeal, the
     record is insufficiently developed for us to resolve whether, through the agency’s
     reconstructed selection process, the appellant obtained all of the relief he could
     have obtained had he prevailed on his VEOA claim before the Board.          If the
     administrative judge determines that the Board has jurisdiction over the appeal on
     remand, she shall evaluate this issue in the first instance.

                                           ORDER
           For the reasons discussed above, we REMAND this case to the regional
     office for jurisdictional notice and further adjudication in accordance with this
     Remand Order.




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