                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ERIC WILLIAMS,                                  DOCKET NUMBER
                         Appellant,                  DC-3330-16-0292-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: August 12, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Eric Williams, North Charleston, South Carolina, pro se.

           Mary Kate DeMane, Esquire, Portsmouth, Virginia, 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 his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
     for lack of jurisdiction.    For the reasons discussed below, we GRANT the
     appellant’s petition for review, VACATE the initial decision, 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In July 2015, the appellant applied for a GS-9/11 Contract Specialist
     position   with    the   agency    advertised    under    vacancy     announcement
     number 1460254.     Initial Appeal File (IAF), Tab 1 at 9, 16.      After apparently
     being notified that he had been found not qualified for the position, the appellant
     timely filed a complaint with the Department of Labor (DOL) alleging that the
     agency violated his veterans’ preference rights. See id. at 1. On January 5, 2016,
     DOL notified the appellant that it had determined that the evidence did not
     support his allegation that the agency violated his veterans’ preference rights and
     informed him of his right to appeal the determination to the Board. Id.
¶3         The appellant timely filed a request for corrective action with the Board and
     requested a hearing. IAF, Tab 1. On January 20, 2016, the administrative judge
     issued an order explaining the jurisdictional requirements under VEOA and
     ordering the appellant to respond with information establishing jurisdiction within
     12 days from the date of the order. IAF, Tab 3 at 1‑7. The administrative judge
     further ordered the agency to respond within 20 calendar days of the order and
     stated that the record on timeliness, exhaustion, and other jurisdictional issues
     would close on the date the agency’s response was due. Id. at 7. On February 5,
     2016, the case was reassigned to a different administrative judge. IAF, Tab 5.
     On February 9, 2016, the agency filed a motion to dismiss the appeal for lack of
     jurisdiction or, in the alternative, for failure to state a claim. IAF, Tab 6 at 4‑5.
     The agency argued that the appellant had not responded to the administrative
     judge’s jurisdictional order and thus had failed to establish Board jurisdiction.
     Id.   The agency also argued that, even if the Board found jurisdiction, the
     appellant could not establish that the agency violated any veterans’ preference
     right because: (1) the agency determined that the appellant was not qualified for
     the position; and (2) the agency did not select any candidate from the certified list
     generated under vacancy announcement number 1460254, but rather used the
                                                                                            3

     Expedited Hiring Authority (EHA) program to fill the vacancies. 2 Id. In support
     of its motion, the agency submitted a declaration signed under penalty of perjury
     by the Contract Resource and Policy Division Manager who affirmed that the
     agency did not select any candidate under the vacancy announcement at issue. Id.
     at 6.
¶4           On February 17, 2016, the administrative judge issued an initial decision
     finding that the appellant exhausted his administrative remedy with DOL, but that
     he failed to make a nonfrivolous allegation that the agency violated any veterans’
     preference right.    IAF, Tab 7, Initial Decision (ID).      Thus, the administrative
     judge dismissed the appeal for lack of jurisdiction. 3 ID at 5‑6.
¶5           The appellant has filed a petition for review of the initial decision, the
     agency has responded in opposition to his petition for review, and the appellant
     has submitted a reply to the agency’s response. Petition for Review (PFR) File,
     Tabs 1, 4‑5. 4 On review, the appellant argues that the administrative judge did
     not give him enough time to “build his case,” failed to communicate with him,


     2
       The EHA authorizes the Secretary of Defense to “designate any category of positions
     in the acquisition workforce . . . as positions for which there exists a shortage of
     candidates or a critical hiring need,” and to recruit and appoint qualified persons
     directly to such positions. 10 U.S.C. § 1705(g).
     3
       On February 25, 2016, the regional office received correspondence from the appellant,
     dated February 19, 2016. IAF, Tab 9. Because the initial decision already had been
     issued, the administrative judge did not consider the appellant’s pleading.
     4
       Several days after submitting his petition for review, the appellant submitted an
     additional pleading, which the Clerk of the Board docketed as a “Supplement to the
     Petition for Review.” PFR File, Tab 3. The Board’s regulations only allow certain
     pleadings on review: a petition for review, a cross petition for review, a response to a
     petition for review, a response to a cross petition for review, and a reply to a response
     to a petition for review. 5 C.F.R. § 1201.114(a). The Board does not permit any other
     pleadings unless the party files a motion with and obtains leave from the Clerk of the
     Board. 5 C.F.R. § 1201.114(a)(5). Even though the appellant has not filed a request for
     leave to submit his supplemental pleading, we note, in any event, that the supplemental
     pleading contains essentially identical arguments as his other pleadings on review.
     Compare PFR File, Tab 3, with PFR File, Tabs 1, 5.
                                                                                           4

     and “rush[ed] [his appeal] along without careful thought.” 5         PFR File, Tab 1
     at 3-4. He also asserts that the agency violated his veterans’ preference rights by
     failing to properly rate his application package and used the EHA to “circumvent
     [his] veterans’ preference rights.” Id. at 2, 5‑10.

     The administrative judge should have afforded the appellant the opportunity to
     rebut the new evidence and argument submitted by the agency on the day the
     record on jurisdiction closed.
¶6         Under 5 C.F.R. § 1201.41, an administrative judge is required to conduct
     fair and impartial proceedings and is endowed with broad discretionary authority
     in executing this mandate. Gavette v. Department of the Treasury, 44 M.S.P.R.
     166, 174 (1990).      Although the administrative judge has wide discretion to
     control the proceedings, including setting the deadline for closing the record, the
     procedures used must comport with the basic requirements of fairness and notice,
     including an opportunity for response to the opposing party’s submissions. Id.
     Thus, where one party is precluded from responding to material evidence that is
     included in the opposing party’s submission, and upon which the administrative
     judge relies in the initial decision, such error may warrant reversal of the initial
     decision.   Id.    The administrative judge’s procedural error is of no legal
     consequence, however, unless it is shown to have adversely affected a party’s
     substantive rights.   Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
     (1981).
¶7         As described above, on January 20, 2016, the administrative judge issued an
     order on jurisdiction, explaining the jurisdictional requirements for a VEOA
     claim and ordering the appellant to respond within 12 days from the date of the


     5
       With his petition for review, the appellant resubmitted the text from his February 19,
     2016 pleading. PFR File, Tab 1 at 5‑10; see IAF, Tab 9. He also submitted a copy of
     an undated “formal complaint” against the administrative judge, which he asserts he
     submitted to the regional office, complaining that the administrative judge issued the
     initial decision within 12 days of the case being reassigned to her and without first
     contacting the appellant. PFR File, Tab 1 at 3‑4, 13‑14.
                                                                                            5

     order.     IAF, Tab 3.    The appellant, however, failed to respond within that
     timeframe. The agency timely responded on February 9, 2016, and the record on
     jurisdiction closed on that date. Id. at 7; IAF, Tab 6. The administrative judge
     issued the initial decision on February 17, 2016. ID at 1. The appellant asserts
     on review that he mailed a pleading in support of his appeal on February 16,
     2016. 6 PFR File, Tab 1 at 3, 12. On February 19, 2016, the appellant mailed
     another pleading, arguing that the agency’s use of the EHA program to fill the
     vacancies was unlawful and reiterating his contention that the agency violated his
     veterans’ preference rights.     IAF, Tab 9 at 1‑6.      Because the initial decision
     already had been issued, the February 16 and February 19, 2016 pleadings were
     not considered by the administrative judge in rendering the initial decision.
¶8            In the initial decision, the administrative judge relied on the evidence
     submitted with the agency’s motion to dismiss—in particular, the affidavit
     provided by the Contract Resource and Policy Division Manager—in finding that
     the appellant failed to nonfrivolously allege that the agency violated any of his
     veterans’ preference rights.       ID at 5; IAF, Tab 6 at 6.             However, the
     administrative judge closed the record on jurisdiction and issued the initial
     decision without affording the appellant the opportunity to rebut the evidence
     submitted by the agency on the day the record on jurisdiction closed. This was
     error. 7 See Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347,

     6
       The appellant has not submitted a copy of this pleading on review, and there is no
     evidence in the record below that it was ever received by the regional office.
     7
       Although we find that the administrative judge erred by failing to afford the appellant
     an opportunity to rebut the agency’s submission just before the record closed, we find
     no merit to the appellant’s other arguments that the administrative judge mishandled his
     case by, among other things, failing to communicate with him prior to issuing the initial
     decision and by deciding the case within 33 days. PFR File, Tabs 1, 5. Moreover,
     insofar as the appellant alleges that the administrative judge was biased against him, we
     find nothing in the record to support this allegation. See Oliver v. Department of
     Transportation, 1 M.S.P.R. 382, 386 (1980) (stating that, in making a claim of bias or
     prejudice against an administrative judge, a party must overcome the presumption of
     honesty and integrity that accompanies administrative adjudicators).
                                                                                             6

      1355-56 (Fed. Cir. 2005); Anastos v. U.S. Postal Service, 38 M.S.P.R. 18,
      21 (1988). We have considered the appellant’s petition for review responding to
      the agency’s evidence and, as explained below, we find that the appellant has
      established jurisdiction over his claims.

      The Board has jurisdiction over the appellant’s claims.
¶9          The Board has jurisdiction over two types of VEOA claims: (1) the denial
      of a right to compete; and (2) the violation of a statute or regulation relating to
      veterans’ preference.     See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference
      claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see
      generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015).
      The appellant appears to have raised both types of claims here. 8 IAF, Tab 1; PFR
      File, Tab 1 at 5‑8, Tab 5 at 5‑9.
¶10         First, to establish Board jurisdiction over a right-to-compete VEOA claim,
      the appellant must:     (1) show that he exhausted his remedy with DOL; and
      (2) make nonfrivolous allegations that (i) he is a veteran within the meaning
      of 5 U.S.C. § 3304(f)(1); (ii) the actions at issue took place on or after the
      December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of
      2004; and (iii) the agency denied him the opportunity to compete under merit

      8
        On review, the agency argues that the Board should not consider the appellant’s
      challenge to the agency’s use of the EHA to fill the Contract Specialist vacancies
      because he did not raise the allegation below. PFR File, Tab 4 at 6. The agency is
      correct that the Board generally will not consider an argument raised for the first time
      in a petition for review absent a showing that it is based on new and material evidence
      not previously available despite the party’s due diligence. Banks v. Department of the
      Air Force, 4 M.S.P.R. 268, 271 (1980). Here, however, we find it appropriate to
      consider the appellant’s arguments pertaining to his right‑to‑compete claim for the first
      time on review because it appears that he was not informed that the agency had filled
      the Contract Specialist vacancies using the EHA program until he received the agency’s
      motion to dismiss on the date the record closed, and he was not afforded an opportunity
      to respond to the agency’s submission below. IAF, Tab 6; see Nevins v. U.S. Postal
      Service, 107 M.S.P.R. 595, ¶ 17 (2008) (finding it appropriate to consider new evidence
      on petition for review because the appellant was not informed of the evidentiary
      conflict until she received the agency’s final submission on the date the record closed).
                                                                                       7

      promotion procedures for a vacant position for which the agency accepted
      applications from individuals outside its own workforce in violation of 5 U.S.C.
      § 3304(f)(1).   Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409,
      ¶ 5 (2010).
¶11        Second, to establish Board jurisdiction over a veterans’ preference claim,
      the appellant must:    (1) show that he exhausted his remedy with DOL; and
      (2) make nonfrivolous allegations that (i) he is a preference eligible within the
      meaning of VEOA; (ii) the action at issue took place on or after the October 30,
      1998 enactment date of VEOA; and (iii) the agency violated his rights under a
      statute or regulation relating to veterans’ preference. Miller v. Federal Deposit
      Insurance Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 818 F.3d 1357
      (Fed. Cir. 2016). A statute or regulation “relating to veterans’ preference” under
      VEOA is one that stands in some relation to, has a bearing on, concerns, and has
      some connection with veterans’ preference rights.        Dean v. Department of
      Agriculture, 99 M.S.P.R. 533, ¶ 17 (2005), aff’d on recons., 104 M.S.P.R. 1
      (2006).
¶12        In this case, the administrative judge found, and we agree, that the appellant
      exhausted his remedy with DOL. ID at 4‑5. Further, it is undisputed that the
      appellant made nonfrivolous allegations that he is a preference eligible and that
      the events took place after the enactment dates mentioned above. IAF, Tab 1.
      Thus, we need only decide whether the appellant has made nonfrivolous
      allegations that:   (1) the agency denied him an opportunity to compete in
      violation of section 3304(f)(1); and/or (2) the agency violated his rights under a
      statute or regulation relating to veterans’ preference. In establishing the Board’s
      jurisdiction over a VEOA appeal, an appellant need not state a claim upon which
      relief can be granted, and an appellant’s allegation, in general terms, that his
      veterans’ preference rights were violated is sufficient to meet the nonfrivolous
      allegation requirement. Miller, 121 M.S.P.R. 88, ¶ 6.
                                                                                            8

¶13        Regarding his right-to-compete claim, the appellant alleges that the agency
      denied him the right to compete for a vacant position for which the agency
      accepted applications from individuals outside its own workforce in violation
      of 5 U.S.C. § 3304(f)(1) by, among other things, filling the Contract Specialist
      vacancies using the EHA program without openly advertising the vacancy
      announcement under the EHA. 9 PFR File, Tab 1 at 5‑7. Pursuant to 5 U.S.C.
      § 3304(f)(1), agencies must afford preference eligibles and other covered
      individuals “the opportunity to compete for vacant positions for which the agency
      making the announcement will accept applications from individuals outside its
      own workforce under merit promotion procedures.”                The requirement that
      agencies afford covered individuals the right to compete pursuant to 5 U.S.C.
      § 3304(f)(1) is not limited merely to situations in which an agency elects to use
      merit promotion procedures, but rather is triggered when an agency accepts
      applications from individuals outside its own workforce.                 Montgomery v.
      Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 7 (2016).                 An
      agency    may   violate    a   covered   individual’s   right     to     compete   under
      section 3304(f)(1) when it deprives him of the right to apply by filling a position
      without   the   required   public   notice.      Dean    v.     Office    of   Personnel
      Management, 115 M.S.P.R. 157, ¶ 28 (2010).
¶14        Below, the agency submitted its internal guidance for using the EHA, which
      states that positions to be filled using that authority must be advertised on
      USAJOBS as “Job Opportunity Announcements.” IAF, Tab 6 at 18. It is unclear
      from the record whether that occurred for the vacancies at issue. Further, to date,

      9
        The appellant also argues that the agency’s use of the EHA program to fill the
      vacancies after September 30, 2015, was unauthorized because the EHA program
      expired on September 30, 2015. PFR File, Tab 1 at 2, 6. This assertion is incorrect.
      Although a prior version of the statute had an expiration date of September 30, 2015,
      the National Defense Authorization Act for Fiscal Year 2013 extended the EHA until
      September 30, 2017. National Defense Authorization Act for Fiscal Year 2013, Pub. L.
      No. 112‑239, § 803(b), 126 Stat. 1632, 1825 (2013). The current version of the statute
      does not contain any expiration date for the EHA program. 10 U.S.C. § 1705(g) (2015).
                                                                                          9

      the agency has not disputed the appellant’s claim that it accepted applications
      from outside of its own workforce in filling the Contract Specialist vacancies
      under the EHA program. IAF, Tab 6; PFR File, Tab 1 at 7-8, Tab 4. If it did, the
      appellant was entitled to an opportunity to compete for the positions pursuant
      to 5 U.S.C. § 3304(f)(1).    The appellant has nonfrivolously alleged that the
      agency failed to openly advertise the position under the EHA program, thus
      establishing jurisdiction over his right-to-compete claim. See Montgomery, 123
      M.S.P.R. 216, ¶ 5.
¶15        Regarding his veterans’ preference claim, the appellant argues that the
      agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to credit
      him with all experience and education material to the positions.               IAF,
      Tab 1 at 10-14; PFR File, Tab 1 at 7.      He noted that his application package
      included a Standard Form 50 indicating that he previously had held a Contract
      Specialist position in another agency and that the agency failed to credit him with
      that experience. IAF, Tab 1 at 11. It is unclear from the current record how the
      agency obtained applications and made selections under the EHA for the
      vacancies at issue. It is also unclear whether those on the hiring certificate for
      vacancy announcement number 1460254 were, or should have been, considered
      for the EHA hires. We find that the appellant has nonfrivolously alleged that the
      agency did not comply with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by
      failing to consider his experience when reviewing his application for the Contract
      Specialist positions. See Miller, 121 M.S.P.R. 88, ¶ 7.      We also find that the
      appellant nonfrivolously alleged that the agency failed to comply with pass-over
      procedures under 5 U.S.C. § 3318 by selecting nonpreference eligibles over him,
      a preference eligible. IAF, Tab 1 at 10, 13; PFR File, Tab 1 at 7‑8; see Alegre v.
      Department of the Navy, 118 M.S.P.R. 424, ¶ 13 (2012). Accordingly, we find
      that the Board has jurisdiction over the appellant’s veterans’ preference claims.
                                                                                           10

      This appeal must be remanded because there are genuine issues of material fact
      that cannot be resolved on the current record.
¶16         The Board has the authority to decide a VEOA appeal on the merits, without
      a hearing, when there is no genuine dispute of material fact and one party must
      prevail as a matter of law. Montgomery, 123 M.S.P.R. 216, ¶ 13. As discussed
      herein, there remain genuine disputed issues of material fact that cannot be
      resolved on the current record. Therefore, this appeal must be remanded for the
      record to be fully developed regarding the material facts. See id.
¶17         As previously noted, pursuant to 5 U.S.C. § 3304(f)(1), agencies must
      afford preference eligibles and other covered individuals the opportunity to
      compete for vacant positions when it accepts applications from outside its own
      workforce, and a lack of public notice of the vacancy may violate that right.
      Dean, 115 M.S.P.R. 157, ¶ 28. Here, the agency contends that it did not select
      any candidate from the certificate of eligibles generated under vacancy
      announcement number 1460254, and the appellant submitted a copy of an email
      informing him that the vacancy announcement had been canceled. IAF, Tab 1
      at 9, Tab 6 at 6. The agency has not explained how it obtained the names of the
      applicants it ultimately selected to fill the Contract Specialist vacancies. IAF,
      Tab 6; PFR File, Tab 4.       Consequently, it is unclear from the current record
      whether the agency relisted the vacancy announcement under the EHA program,
      whether it made its selections through a name request from vacancy
      announcement number 1460254, or whether it made its selections from another
      source. 10 See IAF, Tab 6 at 6; see also id. at 19. Accordingly, we find that there



      10
         The vacancy announcement under which the appellant applied does not identify that
      the position will be filled under the EHA program. IAF, Tab 1 at 16‑26, Tab 6 at 7-13.
      The agency’s internal guidance provides that a vacancy announcement that will be filled
      under the EHA program must be advertised on USAJOBS and must identify the use of
      the EHA authority. Id. at 18. It further provides that selections may be made either
      from a referral certificate, which requires that preference eligibles must be considered
      before all nonpreference-eligible candidates, or through a name request. Id. at 19.
                                                                                           11

      is insufficient evidence in the record to determine if the agency denied the
      appellant the right to compete in filling the vacancies at issue in this appeal.
¶18            Further, given the lack of evidence about how the agency filled the Contract
      Specialist vacancies, we are unable to determine if the appellant was entitled to
      any veterans’ preference rights and, if so, whether the agency violated any such
      rights.     In addition to the dearth of information regarding how it selected
      individuals under the EHA, it is unclear from the record whether the selectees
      were appointed under an authority that allows the agency to appoint individuals
      without regard to veterans’ preference laws. 11 If the appellant was entitled to
      veterans’ preference rights, then it is unclear whether the agency properly
      afforded him those rights because the record is void of evidence pertaining to the
      agency’s apparent determination that the appellant was not qualified for the
      Contract Specialist positions.      On remand, the parties should be afforded an
      opportunity to submit evidence and argument regarding the agency’s selection
      process and the appointment authority used by the agency to fill the position at
      issue.




      11
        The agency contends that it filled the Contract Specialist positions using the EHA, as
      codified at 10 U.S.C. § 1705(g), and that selections made using the EHA “may be made
      without regard to the provisions of 5 USC 3309-3318.” PFR File, Tab 4 at 7-8.
      Although some appointments under title 10 may be made without regard to the civil
      service laws, including those relating to veterans’ preference, see, e.g., Boston v.
      Department of the Army, 122 M.S.P.R. 577, ¶ 9 (2015), nothing in section 1705 states
      that appointments may be made without regard to veterans’ preference laws, see
      10 U.S.C. § 1705. Moreover, the agency’s internal EHA guidance indicates that
      veterans’ preference procedures apply, at least when using a referral certificate. IAF,
      Tab 6 at 19.
                                                                             12

                                    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:                          ______________________________
                                        Jennifer Everling
                                        Acting Clerk of the Board
Washington, D.C.
