UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JEMAL A. CHEATHAM,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DC-3330-15-0024-I-1

DATE: April 10, 2015

THIS ORDER IS NONPRECEDENTIAL1

Jemal A. Cheatham, Silver Spring, Maryland, pro se.

Brett R. Howard, Esquire, APO, APO/FPO Europe, 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

denied his request for corrective action under the Veterans Employment 

Opportunities Act of 1998 (VEOA). For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional 

office for further adjudication in accordance with this Order. 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 On June 11, 2014, the appellant applied for an Accounting Officer position

in Wiesbaden, Germany, with the Department of the Army. Initial Appeal File 

(IAF), Tab 1 at 8, 16-17. The agency did not select the appellant for the position 

notified him that he was outside of the area of consideration identified in the 

vacancy announcement.

2

 Id. at 10. After exhausting his veterans’ preference 

administrative remedy with the Department of Labor, id. at 18-19, the appellant 

filed an appeal with the Board pursuant to VEOA, 5 U.S.C. § 3330a(d)(1), in 

which he asserted that the agency had denied him his veterans’ preference rights, 

IAF, Tab 1 at 6. The appellant requested a hearing. Id. at 3.

¶3 The administrative judge issued a jurisdictional order that informed the 

appellant of the nonfrivolous allegations he had to raise in order to establish the 

Board’s VEOA jurisdiction and ordered the appellant to file a statement on the 

issue within 20 days. IAF, Tab 2 at 2-3. The order informed the appellant that if 

he showed that the Board had jurisdiction, the administrative judge would 

adjudicate the appeal and schedule a hearing if he requested one. Id. at 3. The 

appellant timely responded to the jurisdictional order. IAF, Tab 3. 

¶4 The agency also submitted a response and motion to dismiss the appeal for 

lack of jurisdiction. IAF, Tab 6 at 4-8. The agency asserted that the appellant 

had failed to establish that he was a preference eligible because the 

documentation he submitted with his application for the position, which consisted 

of two DD-214 forms, showed only National Guard Service, which did not entitle 

him to veterans’ preference status. IAF, Tab 6 at 6, 35-36. In response to the 

agency’s motion, the appellant submitted a letter from the Department of 

Veterans Affairs (VA) dated January 26, 2014, establishing his veterans’

preference for civil service employment. IAF, Tab 9 at 4. The appellant did not

 2 The appellant subsequently also received notification that he was not referred for the 

position due to an incomplete application package. IAF, Tab 1 at 11.
3

indicate, however, whether he had submitted this document to the agency along 

with his application materials. 

¶5 Without further development of the record, and without holding the 

requested hearing, the administrative judge issued an initial decision denying the 

appellant’s request for corrective action on the merits. IAF, Tab 10, Initial 

Decision (ID). The administrative judge found that the appellant had established 

Board jurisdiction and that a decision could be made on the merits of the appeal 

without holding a hearing because there were no genuine issues of material fact. 

ID at 1, n.1. Specifically, he found that the appellant failed to show that the 

agency violated his veterans’ preference rights because the appellant only 

provided the agency with documents showing that he had served in the Army 

National Guard, which the agency appropriately determined did not entitle him to 

veterans’ preference status. ID at 3-4. Lastly, the administrative judge 

determined that the fact that the appellant submitted a copy of the VA letter 

showing his preference-eligible status that was dated more than 6 months after the 

agency made its hiring determination did not retroactively change his status at the 

time he applied. ID at 4.

¶6 The appellant has filed a petition for review in which he asserts for the first 

time that he submitted a copy of the VA letter to the agency on June 11, 2014, 

along with his other application materials, and that the administrative judge erred 

in finding that the letter was dated more than 6 months after the agency made its 

hiring determination. Petition for Review (PFR) File, Tab 1 at 4-5. The appellant 

also submits for the first time on review a copy of his electronic application 

package, which identifies the name, type, and date of the documents that he 

submitted with his application, including a “Veteran Preference Letter” submitted 

on June 11, 2014. PFR File, Tab 1 at 7. The agency has not filed a response to 

the appellant’s petition.
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 As an initial matter, we agree with the appellant that the administrative 

judge improperly determined that the January 26, 2014 VA letter is dated 6 

months after the agency made its hiring determination. The record below reflects 

that the vacancy announcement for the position was open from June 6, 2014, to 

June 12, 2014, and, according to the agency, it reviewed the appellant’s 

application on August 6, 2014, and advised him that he would not receive further 

consideration. IAF, Tab 6 at 5, 17, 28. Thus, we find that the VA letter is dated 

over 6 months prior to the agency’s determination. IAF, Tab 9 at 4. Further, for 

the reasons set forth below, we find that the appellant was not provided a full and 

fair opportunity to submit evidence regarding the merits of the appeal, including

evidence relating to his preference-eligible status and whether, based on the 

materials he submitted to the agency with his application for the position, he

established that he was entitled to preference-eligible status. 

¶8 The Board has the authority to decide the merits of a VEOA appeal without 

a hearing if there is no genuine dispute of material fact and one party must prevail 

as a matter of law. Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 10 

(2010); Waters-Lindo v. Department of Defense, 112 M.S.P.R. 1, ¶ 5 (2009). 

Where an administrative judge declines to hold a hearing, he is responsible for 

advising the parties that there will be no hearing, setting a date on which the 

record will close, and affording the parties an opportunity to make submissions

regarding the merits before that date. See Jarrard, 113 M.S.P.R. 502, ¶ 11; 

Ruffin v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 8 (2001).

¶9 Here, as noted, the administrative judge informed the appellant that if he 

found that the Board had jurisdiction, he would schedule the appellant’s requested 

hearing. IAF, Tab 2 at 3. At no time before he issued his initial decision,

however, did the administrative judge advise the parties that there would be no 

hearing on the appeal, nor did he provide them with an opportunity to make 

submissions regarding the merits. Although the administrative judge gave the 
5

appellant an opportunity to assert nonfrivolous allegations of the Board’s VEOA 

jurisdiction, we find that he did not afford the appellant a full and fair opportunity 

to prove by preponderant evidence that he is a preference eligible in regard to the 

merits of his appeal and that the appellant’s veterans’ preference status is a 

genuine dispute of material fact as to which the agency is not entitled to prevail 

as a matter of law. Moreover, to the extent that a copy of the appellant’s 

employment application and supporting documentation is not a part of the record 

below, disputed factual issues exist as to whether the appellant submitted a copy 

of the VA letter or other documentation establishing his preference-eligible status

to the agency with his application for the position. 

¶10 Under these circumstances, we must remand this appeal to the regional 

office. On remand, the administrative judge shall provide the parties with an 

opportunity to make submissions regarding the merits of this appeal. Moreover, 

if the parties’ submissions show that there is a factual dispute material to the 

issue of whether the appellant is entitled to relief under VEOA, the administrative 

judge shall hold a hearing on the appeal, as requested by the appellant. See 

Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001). In 

the absence of such a showing, the appeal may be adjudicated on the record 

without a hearing. See id. 
6

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board