                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOMONIC MEDLEY,                                 DOCKET NUMBER
                 Appellant,                          SF-3330-14-0325-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: October 16, 2014
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Domonic Medley, Sacramento, California, pro se.

           Coleen L. Welch, Esquire, Martinez, California, 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 appeal of his nonselection for a vacant position. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. For the reasons set forth below, we VACATE the
     initial decision and DISMISS the appeal for lack of jurisdiction.
¶2        The agency posted a vacancy announcement for the position of “Registered
     Nurse (ER).” Initial Appeal File (IAF), Tab 6 at 44-49. Among other things, the
     posting specified that in order to be highly qualified, a candidate needed 2-3 years
     of experience working in an emergency room setting. Id. at 45. The appellant
     did not have that experience but applied for the position declaring a veterans’
     preference. See id. at 36-41 (appellant’s résumé). The agency selected another
     candidate, who did not have veterans’ preference but did have extensive
     experience. Id. at 9-10 (explanations of the selection), 42-43 (selectee’s résumé).
¶3        After his nonselection, the appellant filed a Veterans Employment
     Opportunities Act of 1998 (VEOA) complaint with the Department of Labor
     (DOL). IAF, Tab 1 at 10-19. The complaint alleged that the agency used an
     unfair interview process in which the selecting official and two staff nurses
     interviewed all other candidates, but he was only interviewed by the two staff
     nurses.   Id. at 11.    The selecting official was unavailable the day of the
     appellant’s interview due to a family emergency. Id. at 11-12. DOL investigated
     the complaint, concluding that the appellant was a VEOA-eligible veteran whose
     application was accepted and considered.        Id. at 8.    However, DOL also
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     concluded that the job posting was a merit promotion announcement not subject
     to the application of veterans’ preference in the selection process. Id.
¶4           The appellant filed a timely appeal to the Board. Id. at 2-6. Again, the
     appellant alleged that the agency’s interview process was unfair. Id. at 6. The
     administrative judge explained the appellant’s burden of proof under VEOA and
     indicated that he was entitled to a hearing on the merits of his claim only if there
     was a genuine dispute of material fact.           IAF, Tab 3 at 1-6.     Both parties
     responded. IAF, Tabs 5-7, 9-10. Among other things, the agency argued that the
     Board lacked jurisdiction over the appeal. IAF, Tab 6 at 6.
¶5           Without holding the requested hearing, the administrative judge denied the
     appeal on its merits.         IAF, Tab 1 at 3, Tab 11, Initial Decision (ID).      The
     appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The agency has not filed a response.
     The Board lacks jurisdiction over the appellant’s claim.

¶6           Before denying the appeal on its merits, the administrative judge found that
     the appellant had established Board jurisdiction. ID at 5. We disagree.
¶7           Ordinarily, VEOA provides a means for qualified veterans to seek redress
     from the Board for violations of veterans’ preference rights and denials of the
     right    to   compete   for     certain   vacancy announcements.       See   5   U.S.C.
     § 3330a(a)(1)(A)-(B); see also Vores v. Department of Army, 109 M.S.P.R. 191, ¶
     17 (2008) (providing the jurisdictional test for a VEOA veterans’ preference
     claim), aff’d, 324 F. App’x 883 (Fed. Cir. 2009); Becker v. Department of
     Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (providing the jurisdictional test
     for a VEOA right-to-compete claim). However, there are exceptions to VEOA’s
     applicability.   E.g., Morse v. Merit Systems Protection Board, 621 F.3d 1346,
     1349-50 (Fed. Cir. 2010) (VEOA does not apply to the Transportation Security
     Administration); Scarnati v. Department of Veterans Affairs, 344 F.3d 1246,
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      1248-49 (Fed. Cir. 2003) (VEOA does not apply to the appointment of health-care
      professionals under 38 U.S.C. § 7401(1)).
¶8            In Scarnati, our reviewing court examined the application of VEOA to the
      appointment of health-care professionals at the Veterans Health Administration
      (VHA). Such appointments fall within the authority of Title 38, chapter 74, not
      Title 5. Scarnati, 344 F.3d at 1247; 38 U.S.C. § 7401(1). The court found that
      Congress provided the agency broad discretion in making these appointments.
      Scarnati, 344 F.3d at 1247-48.     Specifically, the civil-service requirements of
      Title 5 do not apply to the appointment of nurses or other health-care
      professionals listed in 38 U.S.C. § 7401(1). See 38 U.S.C. §§ 7403(a)(1), (2)(E),
      7425(b); see also Scarnati, 344 F.3d at 1248.       The court explained, “though
      [VEOA] may appear on its face to cover any allegation by a preference eligible
      that veterans’ preference rights have been violated, by the terms of the statute
      governing VHA appointments, Congress has specifically exempted such
      appointments from the VEOA process.” Scarnati, 344 F.3d at 1248.
¶9            Here, the agency’s vacancy announcement specified that the job was a
      health-related position covered by Title 38. IAF, Tab 6 at 44. The agency argued
      that, because the registered nursing vacancy at issue was a health-care position at
      the VHA covered by Title 38, VEOA did not apply. See id. at 6 (citing Scarnati,
      344 F.3d at 1249); see also 38 U.S.C. §§ 7401(1), 7403(a)(2)(E). The appellant
      did not present any argument or evidence to the contrary. Instead, he asserted
      that the agency’s interview process violated his preference rights. IAF, Tab 9
      at 4.
¶10           The administrative judge failed to address the agency’s argument and
      evidence that this Title 38 appointment fell outside the scope of VEOA. Instead,
      he construed the appeal as one of veterans’ preference, rather than a
      right-to-compete claim, and found that the appellant met his jurisdictional burden
      under VEOA. See ID at 3-5. The administrative judge applied VEOA, citing the
      agency’s policy of considering an applicant’s veteran status as a positive factor in
                                                                                             5

      the evaluation process.      ID at 5 (citing IAF, Tab 6 at 60).       In doing so, the
      administrative judge erred.
¶11         Appointments made under 38 U.S.C. § 7401(1) are not subject to the
      civil-service requirements of Title 5, including the redress procedures of VEOA.
      Scarnati, 344 F.3d at 1248.       VEOA does not provide jurisdiction even if the
      agency has an internal veterans’ preference policy for the appointment of medical
      professionals under 38 U.S.C. § 7401(1). Id. at 1249. Accordingly, VEOA does
      not provide Board jurisdiction in this appeal, regardless of whether the
      appellant’s   claim     is   construed   as   one   of   veterans’   preference   or   a
      right-to-compete, and despite the agency’s internal policy.
¶12         Because the Board lacks jurisdiction over the appellant’s VEOA claim, the
      administrative judge erred in adjudicating it on the merits and we therefore vacate
      the administrative judge’s findings in this regard. See Burroughs v. Department
      of Army, 115 M.S.P.R. 656, ¶ 10 (citing Schmittling v. Department of the
      Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (the Board must first resolve the
      threshold issue of jurisdiction before proceeding to the merits of an appeal)),
      aff’d, 445 F. App’x 347 (Fed. Cir. 2011). We therefore dismiss the appeal for
      lack of jurisdiction.
      The Board will not consider the appellant’s newly-submitted evidence.

¶13         With his petition for review, the appellant attached portions of several
      reports, directives, and general guidance from varying agencies that include the
      Board, the Department of State, the Department of Labor, and the Equal
      Employment Opportunity Commission. PFR File, Tab 1 at 5-17. Under 5 C.F.R.
      § 1201.115, the Board generally will not consider evidence submitted for the first
      time with a petition for review absent a showing that it was unavailable before the
      record was closed despite the party’s due diligence.         Avansino v. U.S. Postal
      Service, 3 M.S.P.R. 211, 214 (1980). Further, the evidence must be of sufficient
                                                                                        6

      weight to warrant an outcome different from that of the initial decision. Russo v.
      Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
¶14        While one of the appellant’s attachments is dated after the hearing, PFR
      File, Tab 1 at 12 (“VA Directive 5975”), the appellant failed to demonstrate that
      it warrants a different outcome. With the remaining attachments, PFR File, Tab 1
      at 5-17, the appellant failed to show that he exercised due diligence in obtaining
      them before the record closed below. Therefore, we will not consider any of the
      appellant’s newly-submitted evidence.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request the United States Court of Appeals for the
      Federal Circuit to review this final decision. 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.
                                                                                7

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
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.
