The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRIS E. CHARLES, DOCKET NUMBER
Appellant, AT-3443-22-0564-I-1
v.
DEPARTMENT OF DEFENSE, DATE: March 19, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Chris E. Charles , Miramar, Florida, pro se.
Bobbie Garrison , Doral, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review. We AFFIRM
the initial decision’s finding that the Board lacks jurisdiction over this matter as
an employment practices appeal. However, we REMAND the case to the regional
office for further adjudication of the appellant’s claims pursuant to the Uniformed
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Services Employment and Reemployment Rights Act of 1994 (USERRA),
codified at 38 U.S.C. §§ 4301-4333, and the Veterans Employment Opportunities
Act of 1998 (VEOA).
DISCUSSION OF ARGUMENTS ON REVIEW
On August 13, 2022, the appellant filed a Board appeal concerning his
nonselection for a Logistics Management Specialist position. Initial Appeal File
(IAF), Tab 1 at 1-5. He requested a hearing. Id. at 2. The appellant alleged that,
after his nonselection, he called the hiring manager, who told him that he was
surprised that the appellant did not get an interview for the position because his
name was on the “short list of qualified candidates.” Id. at 4. The appellant
stated that he was challenging his nonselection as an improper employment
practice pursuant to 5 C.F.R. § 300.104. Id. at 4. He also alleged that he is
entitled to veterans’ preference and attached a letter from the Department of
Veterans Affairs confirming his entitlement as well as other documents related to
his military service and job experience. Id. at 4-18. The administrative judge
issued an acknowledgment order, wherein she informed the appellant that the
Board may lack jurisdiction over his nonselection appeal, explained the
circumstances under which the Board may have jurisdiction over a nonselection
appeal, and afforded him the opportunity to submit argument and evidence in
support thereof. IAF, Tab 2 at 2-5. The appellant submitted an untimely
response, wherein he submitted several documents pertaining to his nonselection,
including a position description, communications with the agency related to the
nonselection, and phone records. IAF, Tab 6. He also reiterated his request for a
hearing. IAF, Tab 5 at 4. The agency also filed a response requesting that the
administrative judge dismiss the appeal for lack of jurisdiction. IAF, Tab 4.
Although the appellant’s response to the acknowledgment order was
untimely, the administrative judge considered it and, without holding a hearing,
she issued an initial decision dismissing the appeal for lack of jurisdiction.
3
IAF, Tab 8, Initial Decision (ID) at 2-3. She found that the appellant failed to
nonfrivolously allege that the Board had jurisdiction over his appeal as an
employment practice appeal pursuant to 5 C.F.R. § 300.101, and that he identified
no other law, rule, or regulation that he believed the agency to have violated. Id.
The appellant has filed a petition for review and the agency has filed a response.
Petition for Review (PFR) File, Tabs 1, 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). The Board generally lacks jurisdiction to
consider an appeal regarding a nonselection for a position. Nakshin v.
Department of Justice, 98 M.S.P.R. 524, ¶ 9 (2005). Claims of unlawful conduct
in the selection process ordinarily must be brought before other forums. Prewitt
v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998).
We affirm the administrative judge’s finding that the appellant failed to
nonfrivolously allege that an employment practice applied to him by the Office of
Personnel Management (OPM) violated a basic requirement in 5 C.F.R. § 300.103
for the reasons set forth in the initial decision. 2 ID at 2-3. The appellant has not
specifically challenged this finding on review. PFR File, Tab 1 at 22.
However, we must remand this appeal for another reason. Although the
appellant did not specifically invoke USERRA or VEOA by name, he stated in his
initial appeal, which he resubmitted with his petition for review, that he is
entitled to veterans’ preference and he submitted documents concerning
his veterans’ preference and military service. IAF, Tab 1 at 1, 4-18; PFR File,
Tab 1 at 7-22. The administrative judge’s acknowledgment order did not provide
2
In the initial decision, the administrative judge discussed the agency’s evidence and
argument concerning the selection process. ID at 2. Although the Board may not deny
jurisdiction by crediting the agency’s interpretation of the evidence, Ferdon v. U.S.
Postal Service, 60 M.S.P.R. 325, 329 (1994), we find that the administrative judge did
not rely on the agency’s interpretation of the evidence, or otherwise weigh evidence, in
finding that the appellant failed to nonfrivolously allege that this appeal involved an
employment practice administered by OPM.
4
explicit notice on how the appellant could establish jurisdiction over a USERRA
or VEOA appeal, and the issue is not addressed in the initial decision.
IAF, Tab 2; ID at 1-3. VEOA claims must be liberally construed. See Loggins v.
U.S. Postal Service, 112 M.S.P.R. 471, ¶ 14 (2009). Similarly, the Board has
adopted, and the U.S. Court of Appeals for the Federal Circuit has endorsed,
a “liberal approach in determining whether jurisdiction exists under USERRA.”
Beck v. Department of the Navy, 120 M.S.P.R. 504, ¶ 8 (2014) (quoting Yates v.
Merit Systems Protection Board, 145 F.3d 1480, 1484 (Fed. Cir. 1998)). Under
the circumstances, we find that remand is appropriate so that the administrative
judge may provide the appellant with notice of the VEOA and USERRA burdens
and methods of proof and an opportunity to respond thereto.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.