The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER HARVEY HARE, DOCKET NUMBER
Appellant, PH-3443-14-0638-I-1
v.
NATIONAL CREDIT UNION DATE: October 8, 2014
ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Christopher Harvey Hare, Abingdon, Maryland, pro se.
Scott E. Schwartz, Esquire, Alexandria, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice 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 based on his failure to exhaust his administrative remedy
with the Department of Labor (DOL). For the reasons discussed below, we
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
GRANT the appellant’s petition for review and REMAND the case to the regional
office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant applied for the position of regional lending specialist with the
agency but was notified of his nonselection in April 2014. Initial Appeal File
(IAF), Tab 3 at 24-25. He filed this Board appeal the day after the agency
notified him of the nonselection. IAF, Tab 1. The administrative judge issued an
order informing the appellant of the jurisdictional requirements for a VEOA
claim, including exhaustion before DOL. IAF, Tab 5. The appellant filed a
complaint with DOL in May 2014. IAF, Tab 8. The agency moved to dismiss the
appeal, arguing that the appellant did not exhaust his administrative remedy with
DOL, that the appellant’s employment application did not demonstrate that he
was a preference eligible, and that he was not qualified for the position for which
he applied. IAF, Tab 11 at 4, 9-11. The administrative judge granted the
agency’s motion to dismiss because the appellant had failed to exhaust his
administrative remedy with DOL. IAF, Tab 12, Initial Decision (ID).
¶3 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. With his petition, the appellant submits a July 16, 2014 letter
from DOL notifying him that it has closed its investigation and informing him of
his Board appeal rights. Id. at 6. In response, the agency does not appear to
dispute that the appeal is now ripe for Board review but instead reiterates its
arguments on the merits. PFR File, Tab 2.
¶4 A VEOA complaint must be filed with DOL within 60 days after the date of
the alleged violation. 5 U.S.C. § 3330a(a)(2). Filing a VEOA complaint with
DOL before filing a Board appeal is a prerequisite to establishing the Board’s
jurisdiction over a VEOA appeal. Sears v. Department of the Navy, 86 M.S.P.R.
76, ¶¶ 3-7 (2000). A preference eligible may then file a Board appeal within
15 days after the date on which he receives written notification of the results of
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DOL’s investigation. Id., ¶ 7. In this case, the record shows that the appellant
filed his Board appeal before filing his DOL complaint. IAF, Tabs 1, 8.
Therefore, the administrative judge correctly dismissed the appeal for lack of
jurisdiction. ID at 3-4. However, the appellant on review has submitted
uncontested new and material evidence that shows that he filed a complaint
within 60 days of the alleged violation and that he has now exhausted the DOL
complaint process. PFR File, Tab 1 at 6. We therefore find that the appellant has
satisfied the exhaustion requirement and may proceed with his VEOA appeal.
See Wooten v. Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004)
(finding that upon submission of a DOL close-out letter on review, the appellant
had exhausted his DOL remedy and could pursue his VEOA appeal before the
Board).
¶5 In addition to satisfying the exhaustion requirement, in order to establish
jurisdiction in a VEOA appeal, the appellant also must make nonfrivolous
allegations that: (1) he is a preference eligible within the meaning of VEOA;
(2) the action at issue took place on or after the enactment date of VEOA
(October 30, 1998); and (3) 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). For the reasons set forth below, we
find that the appellant has made the required nonfrivolous allegations.
¶6 According to the relevant statute, a preference eligible includes a veteran
that served on active duty during the period from August 2, 1990, to January 2,
1992. 5 U.S.C. § 2108(1)(C),(3)(B); see Hay v. U.S. Postal
Service, 103 M.S.P.R. 167, ¶ 15 (2006). Active duty is defined as full-time duty
in the Armed Forces, other than active duty for training. 38 U.S.C. § 101(21).
The Armed Forces includes reserve components such as the Air Force
Reserve. 38 U.S.C. § 101(10), (27)(D). The appellant argued that he is a
preference eligible because, as a member of the National Guard, he served on
active duty during the Gulf War. IAF, Tab 1 at 7, Tab 6 at 4. The appellant
4
alleged that he was called to active duty numerous times. IAF, Tab 1 at 7. In his
application package, the appellant submitted his “Report of Separation and
Record of Service in the Air National Guard of Maryland and as a Reserve of the
Air Force,” which showed National Guard service from April 1983, to September
1992. IAF, Tab 11 at 24. Although in boxes 10(b) and 10(c), the form indicates
that the appellant did not have any prior reserve component service or active
federal service, there is no indication that he did not have such service from the
date of rank in October 1988, until his separation in September 1992 (the period
included on the form). Id. Another document, submitted on appeal, shows the
appellant’s January 1991 temporary duty orders from the Maryland Air National
Guard. IAF, Tab 6 at 6. We find that this evidence shows that the appellant
served in the National Guard during the period from August 2, 1990, to January 2,
1992, and suggests that he could have served in a reserve component during this
time. IAF, Tab 11 at 24. We therefore find that the appellant has nonfrivolously
alleged that he is a preference eligible. See 5 U.S.C. § 2108(1)(C),(3)(B).
¶7 It is undisputed that the appellant’s nonselection took place after the
October 30, 1998 enactment of VEOA. IAF, Tab 3 at 24-25. Thus the only
remaining issue is whether the appellant has nonfrivolously alleged that the
agency violated his veterans’ preference rights. 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.
Here, the appellant alleged that he was not selected for the regional lending
specialist position based upon a violation of his veterans’ preference. IAF, Tab 3
at 5-6. We find that this allegation is sufficiently detailed to satisfy VEOA’s
jurisdictional requirements. See Miller, 121 M.S.P.R. 88, ¶ 6. Thus, we find that
the appellant has established jurisdiction over his VEOA appeal. 2
2
Although we find that the appellant has established jurisdiction over his VEOA
appeal, we note that in order to prevail on the merits, he must prove by preponderant
evidence both that he is a preference eligible and that the agency violated his veterans’
5
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.
preference rights. See Isabella v. Department of State, 106 M.S.P.R. 333, ¶¶ 21-22
(2007), aff’d, 109 M.S.P.R. 453 (2008).