Opinion

William Wolz v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: May 8, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM T WOLZ, DOCKET NUMBER

Appellant, PH-3330-23-0031-I-2

DEPARTMENT OF VETERANS DATE: May 8, 2026

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

William T. Wolz , Aliquippa, Pennsylvania, pro se.

Christine Beam , Esquire, and Jillian Flatley , Esquire,

Pittsburgh, Pennsylvania, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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). On petition for review, the appellant

reasserts his claim that the agency’s voluntary reconstruction process was flawed,

and he argues that the administrative judge should have allowed him to respond to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the agency’s close of record brief. Petition for Review (PFR) File, Tab 1 at 2-5.

Generally, we grant petitions such as this one only in the following

circumstances: the initial 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 administrative

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. 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, 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).

The administrative judge appropriately found that the appellant established

the Board’s jurisdiction over this appeal. Wolz v. Department of Veterans Affairs,

MSPB Docket No. PH-3330-23-0031-I-2 Appeal File (I-2 AF), Tab 11,

Initial Decision (ID) at 4-5. We also agree with his conclusion that, because the

agency elected to fill the Financial Management Specialist position through the

merit promotion process and accepted applications from outside its own

workforce, the appellant’s veterans’ preference only entitled him to an

opportunity to compete for the position and that the agency provided him with

that opportunity. ID at 5-7; see 5 U.S.C. § 3304(l)(1). We also agree with the

administrative judge that the appellant’s arguments regarding the validity of the

unilateral reconstruction process are speculative. ID at 7. His similar arguments

on review regarding the lack of an interview during the reconstruction process

and his unsupported assertion that the selecting official did not review his resume

do not provide a basis to disturb the initial decision. PFR File, Tab 1 at 3-4.

The appellant also argues on review that the agency impermissibly imposed

geographic limitations on the position, asserting that VEOA eligible veterans are

not subject to geographic area of consideration limitations but that the vacancy

announcement provided that the first area of consideration would be current,

permanent employees of the Pittsburgh VA Medical Center. PFR File, Tab 1 at 2.

The appellant briefly raised this argument below, but it is not addressed in

the initial decision. Wolz v. Department of Veterans Affairs, MSPB Docket No.

PH-3330-23-0031-I-1 Initial Appeal File (IAF), Tab 17 at 2. Although the

appellant is correct that, under VEOA, agencies may not limit the right of

preference eligibles to compete for merit promotion vacancies because they reside

outside the “area of consideration” for the position, see Jolley v. Department of

Homeland Security, 105 M.S.P.R. 104, ¶ 16 (2007), overruled on other grounds

by Oram v. Department of the Navy, 2022 MSPB 30, ¶ 18, the language in the

vacancy announcement does not impose such limitations. Rather, it simply gives

priority consideration to those who are current, permanent employees of the

Pittsburgh VA Medical Center. IAF, Tab 6 at 16. Nothing in the vacancy

announcement infringed on the appellant’s right to compete by limiting the area

of consideration. This argument does not provide any basis to disturb the initial

decision.

Finally, the appellant argues on review that the administrative judge

violated his own order by not permitting him to respond to the agency’s close of

record brief. PFR File, Tab 1 at 2. The administrative judge’s January 31, 2025

close of record order provides that the record would close on February 10, 2025,

but that, pursuant to 5 C.F.R. § 1201.59(c), a party must be allowed to respond to

new evidence or argument submitted by the other party just before the close of

record. IAF, Tab 8. The appellant claims on review that he was not permitted to

respond to the agency’s close of brief before the administrative judge issued the

initial decision, but he has not identified any new evidence or argument that was

set forth in the agency’s close of record brief. PFR File, Tab 1 at 2. In any

event, he submits with his petition for review a responsive pleading to the

agency’s close of record brief. Id. at 5. Although the Board generally will not

consider evidence or argument raised for the first time on review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence, see Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980), we have reviewed the pleading to determine whether

the appellant was deprived of the opportunity to respond to new and material

information prior to the close of record below. The appellant’s response

submitted on review does not address any new evidence or argument included in

the agency’s brief, but rather, it again reasserts his arguments regarding the

agency’s decision to give a first area of consideration to current, permanent

employees at the Pittsburgh VA Medical Center and his claim that the selecting

official did not review his resume. PFR File, Tab 1 at 5. The pleading does not

evidence error on the administrative judge’s part, nor does it provide a basis to

disturb the initial decision.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 3 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following