Marlon Holloway v. Department of the Air Force

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARLON HOLLOWAY, DOCKET NUMBER
Appellant, AT-3330-15-0642-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 26, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Marlon Holloway, Birmingham, Alabama, pro se.
Daniel J. Watson and Leah Eccles Watson, Eglin Air Force Base, Florida,
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 for lack of jurisdiction his appeal challenging agency actions that
resulted in his nonselection for announced job vacancies. For the reasons
discussed below, we GRANT the appellant’s petition for review and REMAND
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the case to the regional office for further adjudication under the Veterans
Employment Opportunities Act of 1998 (VEOA).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant filed an appeal alleging that he is a preference-eligible
veteran and that the agency failed to consider his training and experience when
the agency did not select him under job announcements for vacant Locksmith
positions in 2014 and 2015. Initial Appeal File (IAF), Tab 1 at 3, Tab 3 at 3. In
support of his appeal, he provided a confirmation notice that he received from the
USA Staffing Application Manager concerning his submission for a Locksmith
position under Job Announcement Number 8I-Eglin-1370013-365266 (Vacancy
ID 1370013) on April 13, 2015, and his responses to the questionnaire that he
submitted for the position. IAF, Tab 1 at 6-7. He also submitted an April 13,
2015 electronic submission from the U.S. Department of Labor’s (DOL)
Veterans’ Employment & Training Service (VETS) assigning an investigator to
his complaint concerning his application for a Locksmith position under Job
Announcement Number 8I-Eglin-1248355-241224-YDC (Vacancy ID 1248355).
Id. at 8. VETS also assigned Veterans’ Preference Case No. AL-2015-008-VPH
for “all future contacts” about his case. Id.
¶3 The administrative judge informed the appellant that he appeared to be
raising a claim under VEOA and provided him with the necessary information
concerning the jurisdictional issues and the steps he was required to take to show
that the Board should not dismiss his appeal for lack of jurisdiction or
untimeliness. 2 IAF, Tab 6. The administrative judge specifically ordered the
appellant to submit evidence and argument to prove that he had exhausted the
2
On his appeal form, the pro se appellant indicated that the agency subjected him to a
negative suitability determination; however, the administrative judge found that the
appellant actually intended to bring a nonselection appeal under VEOA. IAF, Tab 9,
Initial Decision (ID) at 1 n.1. The appellant does not dispute this finding on review.
3
DOL complaint process and to provide a statement that would satisfy his burden
regarding the other jurisdictional requirements for a VEOA claim. Id. at 6-7.
¶4 In response to the jurisdictional order, the agency argued that the appellant
failed to provide a copy of the complaint that he filed with DOL or any
information about DOL’s determination of his complaint. IAF, Tab 7 at 4. The
appellant responded by arguing that he filed a timely appeal and he reasserted his
belief that the agency should have considered his prior service in the U.S. Air
Force and his experience and training in locksmithing. 3 IAF, Tab 8 at 3. The
appellant also submitted: his résumé; illegible pages from his November 1, 2014
submission for a Locksmith position under Vacancy ID 1248355; correspondence
from VETS acknowledging that he filed a VEOA complaint (Case No. AL-2015-
008-VPH) with DOL on April 13, 2015, concerning his nonselection for Vacancy
ID 1248355; 4 and an MSPB e-Appeal technical support ticket dated August 5,
2015. IAF, Tab 8 at 4-11.
¶5 Based on the written record, the administrative judge dismissed the appeal
for lack of jurisdiction under VEOA, finding that the appellant failed to prove
that he exhausted his remedies before DOL. IAF, Tab 9, Initial Decision (ID)
at 3. The appellant filed a petition for review and submitted documentation
relevant to the jurisdictional issue. Petition for Review (PFR) File, Tab 3. The
agency filed a response in opposition to his petition, and the appellant replied.
PFR File, Tabs 5-6.
¶6 To establish that the Board has jurisdiction over his appeal under VEOA,
the appellant must: (1) show that he exhausted his remedy with DOL; and
(2) make a nonfrivolous allegation that (a) he is a preference eligible within the
3
The appellant argues that he applied for a Locksmith position and, although he was
qualified for the position, the agency reposted the vacancy without hiring him. IAF,
Tab 1 at 3, Tab 8 at 3.
4
The electronic submission from VETS is a duplicate copy of a document that the
appellant attached to his appeal. IAF, Tab 1 at 8.
4
meaning of VEOA; (b) the action at issue took place on or after the October 30,
1998 enactment of VEOA; and (c) the agency violated his rights under a statute or
regulation relating to veterans’ preference. Haasz v. Department of Veterans
Affairs, 108 M.S.P.R. 349, ¶ 6 (2008). The Board has held that an allegation in
general terms that an appellant’s veterans’ preference rights were violated is
sufficient to meet the nonfrivolous allegation requirement. Id., ¶ 7.
¶7 To meet the VEOA requirement that he exhaust his remedy with DOL, the
appellant must establish that: (1) he filed a complaint with the Secretary of
Labor; and (2) the Secretary of Labor was unable to resolve the complaint within
60 days or has issued a written notification that the Secretary’s efforts have not
resulted in resolution of the complaint. Davis v. Department of Defense,
105 M.S.P.R. 604, ¶ 7 (2007). Based on the appellant’s failure to provide
sufficient proof of exhaustion on appeal below, the administrative judge
appropriately determined that the Board lacked jurisdiction over this appeal
pursuant to VEOA. ID at 2-3. For the first time on review, however, the
appellant submits evidence showing that he exhausted the DOL complaint process
concerning his nonselection for the Locksmith position announced under Vacancy
ID 1370013. 5 PFR File, Tab 1 at 7.
¶8 The record now reflects that the appellant satisfied the remaining
requirements for establishing the Board’s jurisdiction over his appeal under
5
The issue of Board jurisdiction may be raised at any time during a proceeding.
Morgan v. Department of the Navy, 28 M.S.P.R. 477, 478 (1985). On review, the
appellant submits: the May 26, 2015 letter that he received from DOL referring to Case
No. AL-2015-008-VPH and informing him that DOL had completed its investigation of
his veterans’ preference “complaints”; the veterans’ preference complaint he filed with
DOL on April 13, 2015, concerning Vacancy ID 1370013; and his May 18 email
notifying DOL that he intended to pursue his nonselection claim before the Board. PFR
File, Tab 3 at 21, 23, 25. Although the appellant’s new evidence pre-dates the issuance
of the initial decision, we have considered it. We further note that the appellant’s
response to the jurisdictional order on appeal reflected his confusion about the required
documentation to establish jurisdiction, and he submitted proof of his diligent but
unsuccessful search for pro bono representation. PFR File, Tab 1 at 3, Tab 3 at 26,
Tab 6 at 3.
5
VEOA. Specifically, he made nonfrivolous allegations that: (a) he is a
preference eligible within the meaning of VEOA; (b) the action at issue took
place after the October 30, 1998 enactment of VEOA; and (c) the agency failed to
consider his training and experience when reviewing his application for Vacancy
ID 1370013, which is an alleged violation of his veterans’ preference rights under
5 U.S.C. § 3311 and 5 C.F.R. § 302.302. IAF, Tab 1 at 1, 6, Tab 3 at 3, Tab 7
at 8, 28, Tab 8 at 3; PFR File, Tab 3 at 20; see Miller v. Federal Deposit
Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014); Haasz, 108 M.S.P.R. 349,
¶ 7 (explaining that an appellant’s allegation, in general terms, that his veterans’
preference rights were violated is sufficient to meet the nonfrivolous allegation
requirement).
¶9 Accordingly, we find that the appellant exhausted the DOL complaint
process and established the Board’s jurisdiction under VEOA based on an alleged
violation of his veterans’ preference rights concerning his nonselection under
Vacancy ID 1370013. The record reflects that the appellant timely filed his
VEOA appeal with the Board on June 19, 2015, which is within 15 days after the
date that he received written notice from DOL of the results of its investigation.
See 5 U.S.C. § 3330a(d)(1); IAF, Tab 1 at 4; PFR File, Tab 3 at 21. We therefore
remand this appeal for further adjudication of the appellant’s VEOA claim
concerning his nonselection under Vacancy ID 1370013.
¶10 The Board may decide a VEOA appeal on the merits without holding a
hearing where there is no genuine dispute of material fact and one party must
prevail as a matter of law once the record has been adequately developed. Haasz,
108 M.S.P.R. 349, ¶¶ 9-10. We decline to rule on the merits at this time because
the jurisdictional order issued below stated that, if the appellant established
jurisdiction, the parties would have an opportunity to submit evidence and
arguments on the merits of the appeal at a hearing or through further development
of the written record. IAF, Tab 3 at 7. The appellant did not request a hearing;
however, we find that the administrative judge should provide the parties with
6
notice and an opportunity to make submissions regarding the merits of the appeal
prior to the issuance of a decision on the merits. See Jarrard v. Department of
Justice, 113 M.S.P.R. 502, ¶ 11 (2010). Thus, under the circumstances remand is
appropriate.
¶11 Because the appellant filed evidence on review indicating that he may have
exhausted the DOL complaint process regarding his nonselection claim
concerning Vacancy ID 1248355, the Board may have jurisdiction over that claim
as well. 6 Although the Board uses a liberal pleading standard for allegations of
veterans’ preference violations in VEOA appeals, evidence of the exhaustion
requirement is mandatory under the statute and is not subject to the same liberal
construction. Burroughs v. Department of the Army, 115 M.S.P.R. 656, ¶ 10,
aff’d, 445 F. App’x 347 (Fed. Cir. 2011), and overruled on other grounds by
Dean v. Department of Labor, 122 M.S.P.R. 276, ¶ 15 (2015), aff’d, 808 F.3d 497
(Fed. Cir. 2015). On remand, the administrative judge should reconsider any new
evidence of exhaustion concerning the appellant’s VEOA claim challenging his
nonselection for the Locksmith position announced under Vacancy ID 1248355
and adjudicate the merits if jurisdiction is found. IAF, Tab 1, Tab 8 at 11.
6
On review, the appellant provided a copy of the veterans’ preference complaint he
filed with DOL on April 13, 2015, concerning Vacancy ID 1370013. PFR File, Tab 3
at 22-24. The case reference number on that complaint is AL-2015-008-VPH. Id. at 22.
The appellant provided evidence on appeal showing that he raised a claim also
regarding his nonselection under Vacancy ID 1248355 in the VEOA complaint he filed
with VETS in April 2015, and VETS also referred to that VEOA complaint as Case No.
AL-2015-008-VPH. IAF, Tab 1 at 8, 10. Thus, it appears that both of the complaints
that he filed with DOL had the same case number, and DOL referred to Case No.
AL˗2015-008-VPH in the May 26, 2015 letter informing the appellant that DOL
completed its investigation of his VEOA “complaints” against the agency. PFR File,
Tab 3 at 21.
7
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.