                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ORLANDO PEREZ,                                  DOCKET NUMBER
                 Appellant,                          DA-3443-15-0125-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: August 7, 2015
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Orlando Perez, El Paso, Texas, pro se.

           K. Tyson Shaw, Esquire, Washington, D.C., 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
     dismissed for lack of jurisdiction his appeal challenging agency actions that
     resulted in his nonselection for promotions and other career development
     opportunities.    For the reasons discussed below, we GRANT the appellant’s
     petition for review, VACATE the initial decision, and REMAND the appeal to the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regional office for further adjudication under the Veterans Employment
     Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA).

                                     BACKGROUND
¶2        The appellant filed an appeal alleging that he had not been selected for
     numerous positions and other favorable career development opportunities in
     violation of his veterans’ preference rights. Initial Appeal File (IAF), Tab 1. He
     also alleged that these nonselections were the result of discrimination and
     retaliation for protected equal employment opportunity activity. Id.
¶3        The administrative judge issued an acknowledgment order stating that the
     Board could have jurisdiction over his nonselections under the Whistleblower
     Protection Act, USERRA, or VEOA, and she ordered the appellant to file
     evidence and argument to establish that the agency’s actions were within the
     Board’s jurisdiction. IAF, Tab 2. The administrative judge issued a separate
     order that informed the appellant of what he must allege to establish the Board’s
     jurisdiction under VEOA. IAF, Tab 3. She specifically ordered him to submit
     evidence and argument to prove that he had exhausted the U.S. Department of
     Labor (DOL) complaint process and to provide a statement that would satisfy his
     burden regarding the other jurisdictional requirements for a VEOA claim. Id. at
     6-7. The appellant responded that the agency violated his veterans’ preference
     rights by not selecting him ahead of those without veterans’ preference and not
     giving proper credit to his applications. IAF, Tab 6 at 4-5. The appellant also
     stated that he elected not to file with DOL and instead filed a “mixed case”
     directly with the Board under 5 C.F.R. § 1201.154(b). Id.
¶4        The administrative judge issued an initial decision, without holding a
     hearing, finding that the appellant’s nonselection claims were not independently
     appealable to the Board and that the appellant had failed to establish the Board’s
                                                                                      3

     jurisdiction under VEOA because he had not shown he exhausted his remedies
     before DOL. IAF, Tab 13, Initial Decision (ID).
¶5          The appellant has filed a petition for review, alleging among other things
     that, after the initial decision was issued, he received a letter from DOL closing
     its investigation into his veterans’ preference complaint.    Petition for Review
     (PFR) File, Tab 1. The agency has filed a response in opposition to the petition.
     PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The Board has jurisdiction over the appellant’s request for corrective action under
     VEOA concerning the complaint he exhausted with DOL.
¶6          To establish the Board’s jurisdiction under VEOA based on an alleged
     violation of veterans’ preference rights, the appellant must:    (1) show that he
     exhausted his remedy with DOL; and (2) make a nonfrivolous allegation that
     (a) he is a preference eligible within the meaning of VEOA, (b) the action at issue
     took place on or after the October 30, 1998 enactment of VEOA, and (c) the
     agency violated his rights under a statute or regulation relating to veterans’
     preference.    Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349,
     ¶ 6 (2008). An appellant need not state a claim upon which relief can be granted
     for the Board to have jurisdiction over a VEOA claim. Id. The Board has held
     that an allegation in general terms that an appellant’s veterans’ preference rights
     were violated is sufficient to meet the nonfrivolous allegation requirement. Id.,
     ¶ 7.
¶7          To meet the VEOA’s requirement that he exhaust his remedy with DOL, the
     appellant must establish that:   (1) he filed a complaint with the Secretary of
     Labor; and (2) the Secretary of Labor was unable to resolve the complaint within
     60 days or has issued a written notification that the Secretary’s efforts have not
     resulted in resolution of the complaint.      Davis v. Department of Defense,
     105 M.S.P.R. 604, ¶ 7 (2007).     The record shows that the appellant filed his
     appeal without first exhausting the DOL complaint process. IAF, Tab 6 at 4-5.
                                                                                             4

     Thus, the administrative judge appropriately determined that the Board lacked
     jurisdiction over this appeal pursuant to VEOA. ID at 4. The appellant has filed
     new evidence on review showing that he has now exhausted the DOL complaint
     process concerning his nonselection for a position under vacancy announcement
     LAT-2014-0043. 2 PFR File, Tab 1 at 7.
¶8         The remaining requirements for establishing the Board’s jurisdiction under
     VEOA also have been met. The appellant made a nonfrivolous allegation that he
     is a preference eligible within the meaning of VEOA. IAF, Tab 1, Exhibit 2. The
     actions at issue took place after the October 30, 1998 enactment of VEOA. IAF,
     Tab 7 at 43-46. The appellant claimed that the agency failed to properly credit
     his experience pursuant to 5 U.S.C. § 3311 and 5 C.F.R. § 337.101 and that he
     had superior experience compared to the selectee. IAF, Tab 1 at 6 of 15, Tab 6
     at 5, Tab 9 at 5. Thus, we find that the appellant nonfrivolously alleged that the
     agency violated his rights under a statute or regulation relating to veterans’
     preference. See Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R.
     88, ¶ 7 (2014) (the appellant’s nonfrivolous allegations that the agency did not
     comply with 5 U.S.C. § 3311 and 5 C.F.R. § 302.302 by failing to consider the
     full extent of his military and civilian experiences when reviewing his application
     were sufficient to establish jurisdiction under VEOA); Haasz, 108 M.S.P.R. 349,
     ¶ 7 (an appellant’s allegation, in general terms, that his veterans’ preference
     rights were violated is sufficient to meet the nonfrivolous allegation requirement).
¶9         Although the appellant prematurely filed his appeal below prior to
     exhausting his remedies before DOL, the Board’s practice is to adjudicate an

     2
       The Board will not consider evidence submitted for the first time with the petition for
     review absent a showing that it is of sufficient weight to warrant an outcome different
     from that of the initial decision and that it was unavailable before the record was closed
     despite the party’s due diligence. Banks v. Department of the Air Force, 4 M.S.P.R.
     268, 271 (1980); Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980);
     5 C.F.R. § 1201.115. Because the appellant’s new evidence is dated after issuance of
     the initial decision and the information it contains was unavailable before the record
     closed, and because it is material, we have considered it on review.
                                                                                       5

      appeal that was premature when filed but becomes timely while pending. See
      Wooten v. Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). Because
      the appellant filed his new evidence with the Board on April 5, 2015, which is
      within 15 days after the date he received it, his appeal is timely. PFR File, Tab 1
      at 7; see 5 U.S.C. § 3330a(d)(1) (requiring that a VEOA appeal be filed within
      15 days after the date the complainant receives written notice from DOL of the
      results of its investigation). Therefore, the appellant has now exhausted the DOL
      complaint process as to a single vacancy announcement, vacancy announcement
      LAT-2014-0043, and he may now pursue a VEOA appeal regarding that
      nonselection before the Board and we must remand the appeal for that purpose.
      See Wooten, 96 M.S.P.R. 671, ¶ 9.
¶10        We note that the DOL letter refers to this vacancy as a “merit promotion.”
      PFR File, Tab 1 at 7. An individual is not entitled to veterans’ preference points
      under merit promotion procedures, e.g., Dean v. Consumer Product Safety
      Commission, 108 M.S.P.R. 137, ¶ 11 (2008); however, a preference-eligible
      employee may be entitled to veterans’ preference in an open competitive
      examination process, Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶¶ 20-21
      (2005). The Board may decide a VEOA appeal on the merits without holding a
      hearing where there is no genuine dispute of material fact and one party must
      prevail as a matter of law once the record has been adequately developed. Haasz,
      108 M.S.P.R. 349, ¶¶ 9-10.     We decline to rule on the merits at this time,
      however, because the record has not been adequately developed.                 The
      jurisdictional order issued below stated that, if the appellant established
      jurisdiction, the parties would have an opportunity to submit evidence and
      arguments on the merits of the appeal at a hearing or through further development
      of the written record. IAF, Tab 3 at 7. The parties should be given notice and an
      opportunity to make submissions regarding the merits of the appeal prior to the
      issuance of a decision on the merits.     See Jarrard v. Department of Justice,
                                                                                           6

      113 M.S.P.R. 502, ¶ 11 (2010).       Thus, under the circumstances, remand is
      appropriate.
¶11        Although the Board uses a liberal pleading standard for allegations of
      veterans’ preference violations in VEOA appeals, evidence of the exhaustion
      requirement is mandatory under the statute and is not subject to the same liberal
      construction.   Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10,
      aff’d, 445 F. App’x 347 (Fed. Cir. 2011), and overruled on other grounds by
      Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 15 (2015).              Because the
      appellant has not filed any evidence that he exhausted the DOL complaint process
      regarding his other nonselection claims, the Board lacks jurisdiction over these
      claims. See id. Accordingly, in the remand initial decision, the administrative
      judge may incorporate his prior jurisdictional finding that the appellant failed to
      exhaust his remedy with DOL regarding the VEOA claims that he was denied
      veterans’ preference when he was not selected for the Trust Fund Program
      Specialist position advertised under vacancy announcement LAT-2013-0054, IAF,
      Tab 1 at 7 of 15, the Senior Officer Specialist positions advertised under vacancy
      announcements     LAT-2013-0049,       LAT-2010-0018,        LAT-2010-0017,         and
      LAT-2009-0034, id. at 9-11 of 15, and any other unspecified positions that
      comprise the twenty-two times the appellant alleges he was “passed over” for
      promotions and other favorable work experiences, id. at 3 of 15.
      The appeal may raise a claim under USERRA.
¶12        USERRA provides, in relevant part, that a person who has performed
      service in a uniformed service shall not be denied initial employment,
      reemployment,    retention   in   employment,   promotion,    or   any    benefit    of
      employment on the basis of that performance of service. 38 U.S.C. § 4311(a). To
      establish the Board’s jurisdiction over a USERRA discrimination claim arising
      under 38 U.S.C. § 4311(a), the appellant must allege the following:           (1) he
      performed duty or has an obligation to perform duty in a uniformed service of the
      United States; (2) the agency denied him initial employment, reemployment,
                                                                                           7

      retention, promotion, or any benefit of employment; and (3) the denial was due to
      the performance of duty or obligation to perform duty in the uniformed service.
      Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 8 (2009).              It is well
      established that a claim of discrimination under USERRA should be broadly and
      liberally construed in determining whether it is nonfrivolous, particularly where,
      as here, the appellant is pro se. Id., ¶ 9.
¶13         The appellant alleged that the agency discriminated against him based on
      his status as a disabled veteran. IAF, Tab 1 at 4 of 15. He also alleged that his
      qualifications are superior to those of the nonveteran selectees. Id. at 3 of 15. He
      may have been attempting to raise a USERRA discrimination claim based on his
      status as a veteran rather than, or in addition to, a VEOA claim. See Nahoney v.
      U.S. Postal Service, 112 M.S.P.R. 93, ¶ 19 (2009) (remanding for further
      adjudication concerning the potential USERRA claim, even though the appellant
      never explicitly raised such a claim and only completed the sections of the initial
      appeal form pertaining to VEOA). The appellant’s claim that his qualifications
      were far superior to the selectees’ evinces his belief that the agency’s reasons for
      not selecting him are pretextual. See Patterson v. Department of the Interior,
      424 F.3d 1151, 1161 (Fed. Cir. 2005).               Accordingly, on remand, the
      administrative judge should provide the appellant with adequate notice of what is
      required to establish the Board’s jurisdiction under USERRA and adjudicate such
      a claim as appropriate. 3
      The Board lacks jurisdiction to consider the prohibited personnel practices,
      discrimination, retaliation, and unfair labor practice claims in this appeal.
¶14         The appellant has raised prohibited personnel practices, discrimination,
      retaliation, and unfair labor practices claims in his appeal.       IAF, Tab 1.     He

      3
        On review, the appellant asserts he was denied discovery prior to issuance of the
      initial decision. PFR File, Tab 1 at 3. Although the appellant has not shown he was
      prejudiced by any discovery rulings in connection with the jurisdictional issues
      addressed in the initial decision, the administrative judge shall allow for appropriate
      discovery regarding the remaining VEOA and USERRA issues on remand.
                                                                                 8

continues to argue on review that his claims are not limited to VEOA. PFR File,
Tab 1 at 3. The Board’s jurisdiction is limited to those matters over which it has
been given jurisdiction by law, rule, or regulation.    Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Nonselections are not directly
appealable to the Board and claims of prohibited personnel practices do not
provide independent bases for the Board’s jurisdiction. See Davis, 105 M.S.P.R.
604, ¶ 15; see also Harrison v. Department of Transportation, 16 M.S.P.R. 135,
136 n.1 (1983) (no law, rule, or regulation has created an independent right to
appeal a claim of an agency’s unfair labor practice to the Board). In VEOA and
USERRA appeals the Board cannot consider claims of prohibited discrimination
under 5 U.S.C. § 2302(b)(1) because neither statute grants the Board the authority
to consider those claims. Davis, 105 M.S.P.R. 604, ¶ 16. Accordingly, the Board
does not have jurisdiction to review the appellant’s claims of prohibited personnel
practices, discrimination, retaliation, and unfair labor practices except to the
extent necessary to adjudicate his VEOA and USERRA claims. See Lazaro v.
Department of Veterans Affairs, 666 F.3d 1316, 1320 (Fed. Cir. 2012);
Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, ¶ 15 (2001).

                                     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.
