UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC WILLIAMS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-3330-16-0292-I-1

DATE: August 12, 2016

THIS ORDER IS NONPRECEDENTIAL1

Eric Williams, North Charleston, South Carolina, pro se.

Mary Kate DeMane, Esquire, Portsmouth, Virginia, 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 his Veterans Employment Opportunities Act of 1998 (VEOA) appeal 

for lack of jurisdiction. For the reasons discussed below, we GRANT the 

appellant’s petition for review, VACATE the initial decision, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In July 2015, the appellant applied for a GS-9/11 Contract Specialist 

position with the agency advertised under vacancy announcement 

number 1460254. Initial Appeal File (IAF), Tab 1 at 9, 16. After apparently 

being notified that he had been found not qualified for the position, the appellant 

timely filed a complaint with the Department of Labor (DOL) alleging that the 

agency violated his veterans’ preference rights. See id. at 1. On January 5, 2016, 

DOL notified the appellant that it had determined that the evidence did not 

support his allegation that the agency violated his veterans’ preference rights and 

informed him of his right to appeal the determination to the Board. Id. 

¶3 The appellant timely filed a request for corrective action with the Board and 

requested a hearing. IAF, Tab 1. On January 20, 2016, the administrative judge 

issued an order explaining the jurisdictional requirements under VEOA and 

ordering the appellant to respond with information establishing jurisdiction within 

12 days from the date of the order. IAF, Tab 3 at 1‐7. The administrative judge 

further ordered the agency to respond within 20 calendar days of the order and 

stated that the record on timeliness, exhaustion, and other jurisdictional issues

would close on the date the agency’s response was due. Id. at 7. On February 5, 

2016, the case was reassigned to a different administrative judge. IAF, Tab 5. 

On February 9, 2016, the agency filed a motion to dismiss the appeal for lack of

jurisdiction or, in the alternative, for failure to state a claim. IAF, Tab 6 at 4‐5. 

The agency argued that the appellant had not responded to the administrative 

judge’s jurisdictional order and thus had failed to establish Board jurisdiction. 

Id. The agency also argued that, even if the Board found jurisdiction, the 

appellant could not establish that the agency violated any veterans’ preference 

right because: (1) the agency determined that the appellant was not qualified for 

the position; and (2) the agency did not select any candidate from the certified list 

generated under vacancy announcement number 1460254, but rather used the 
3

Expedited Hiring Authority (EHA) program to fill the vacancies. 2 Id. In support 

of its motion, the agency submitted a declaration signed under penalty of perjury 

by the Contract Resource and Policy Division Manager who affirmed that the 

agency did not select any candidate under the vacancy announcement at issue. Id.

at 6. 

¶4 On February 17, 2016, the administrative judge issued an initial decision 

finding that the appellant exhausted his administrative remedy with DOL, but that 

he failed to make a nonfrivolous allegation that the agency violated any veterans’

preference right. IAF, Tab 7, Initial Decision (ID). Thus, the administrative 

judge dismissed the appeal for lack of jurisdiction. 3

 ID at 5‐6.

¶5 The appellant has filed a petition for review of the initial decision, the 

agency has responded in opposition to his petition for review, and the appellant 

has submitted a reply to the agency’s response. Petition for Review (PFR) File, 

Tabs 1, 4‐5. 4

 On review, the appellant argues that the administrative judge did

not give him enough time to “build his case,” failed to communicate with him, 

 2 The EHA authorizes the Secretary of Defense to “designate any category of positions 

in the acquisition workforce . . . as positions for which there exists a shortage of 

candidates or a critical hiring need,” and to recruit and appoint qualified persons 

directly to such positions. 10 U.S.C. § 1705(g). 

3 On February 25, 2016, the regional office received correspondence from the appellant, 

dated February 19, 2016. IAF, Tab 9. Because the initial decision already had been 

issued, the administrative judge did not consider the appellant’s pleading. 

4 Several days after submitting his petition for review, the appellant submitted an 

additional pleading, which the Clerk of the Board docketed as a “Supplement to the 

Petition for Review.” PFR File, Tab 3. The Board’s regulations only allow certain 

pleadings on review: a petition for review, a cross petition for review, a response to a 

petition for review, a response to a cross petition for review, and a reply to a response 

to a petition for review. 5 C.F.R. § 1201.114(a). The Board does not permit any other 

pleadings unless the party files a motion with and obtains leave from the Clerk of the 

Board. 5 C.F.R. § 1201.114(a)(5). Even though the appellant has not filed a request for 

leave to submit his supplemental pleading, we note, in any event, that the supplemental 

pleading contains essentially identical arguments as his other pleadings on review. 

Compare PFR File, Tab 3, with PFR File, Tabs 1, 5. 
4

and “rush[ed] [his appeal] along without careful thought.” 5 PFR File, Tab 1 

at 3-4. He also asserts that the agency violated his veterans’ preference rights by 

failing to properly rate his application package and used the EHA to “circumvent 

[his] veterans’ preference rights.” Id. at 2, 5‐10.

The administrative judge should have afforded the appellant the opportunity to 

rebut the new evidence and argument submitted by the agency on the day the 

record on jurisdiction closed.

¶6 Under 5 C.F.R. § 1201.41, an administrative judge is required to conduct 

fair and impartial proceedings and is endowed with broad discretionary authority 

in executing this mandate. Gavette v. Department of the Treasury, 44 M.S.P.R. 

166, 174 (1990). Although the administrative judge has wide discretion to 

control the proceedings, including setting the deadline for closing the record, the 

procedures used must comport with the basic requirements of fairness and notice, 

including an opportunity for response to the opposing party’s submissions. Id. 

Thus, where one party is precluded from responding to material evidence that is 

included in the opposing party’s submission, and upon which the administrative 

judge relies in the initial decision, such error may warrant reversal of the initial 

decision. Id. The administrative judge’s procedural error is of no legal 

consequence, however, unless it is shown to have adversely affected a party’s 

substantive rights. Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 

(1981).

¶7 As described above, on January 20, 2016, the administrative judge issued an 

order on jurisdiction, explaining the jurisdictional requirements for a VEOA 

claim and ordering the appellant to respond within 12 days from the date of the 

 5 With his petition for review, the appellant resubmitted the text from his February 19, 

2016 pleading. PFR File, Tab 1 at 5‐10; see IAF, Tab 9. He also submitted a copy of 

an undated “formal complaint” against the administrative judge, which he asserts he

submitted to the regional office, complaining that the administrative judge issued the 

initial decision within 12 days of the case being reassigned to her and without first 

contacting the appellant. PFR File, Tab 1 at 3‐4, 13‐14. 
5

order. IAF, Tab 3. The appellant, however, failed to respond within that 

timeframe. The agency timely responded on February 9, 2016, and the record on 

jurisdiction closed on that date. Id. at 7; IAF, Tab 6. The administrative judge 

issued the initial decision on February 17, 2016. ID at 1. The appellant asserts 

on review that he mailed a pleading in support of his appeal on February 16, 

2016. 6

 PFR File, Tab 1 at 3, 12. On February 19, 2016, the appellant mailed 

another pleading, arguing that the agency’s use of the EHA program to fill the 

vacancies was unlawful and reiterating his contention that the agency violated his 

veterans’ preference rights. IAF, Tab 9 at 1‐6. Because the initial decision 

already had been issued, the February 16 and February 19, 2016 pleadings were 

not considered by the administrative judge in rendering the initial decision. 

¶8 In the initial decision, the administrative judge relied on the evidence 

submitted with the agency’s motion to dismiss—in particular, the affidavit 

provided by the Contract Resource and Policy Division Manager—in finding that 

the appellant failed to nonfrivolously allege that the agency violated any of his

veterans’ preference rights. ID at 5; IAF, Tab 6 at 6. However, the 

administrative judge closed the record on jurisdiction and issued the initial 

decision without affording the appellant the opportunity to rebut the evidence 

submitted by the agency on the day the record on jurisdiction closed. This was 

error.

7

 See Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 1347, 

 6 The appellant has not submitted a copy of this pleading on review, and there is no 

evidence in the record below that it was ever received by the regional office. 

7 Although we find that the administrative judge erred by failing to afford the appellant 

an opportunity to rebut the agency’s submission just before the record closed, we find 

no merit to the appellant’s other arguments that the administrative judge mishandled his 

case by, among other things, failing to communicate with him prior to issuing the initial 

decision and by deciding the case within 33 days. PFR File, Tabs 1, 5. Moreover, 

insofar as the appellant alleges that the administrative judge was biased against him, we 

find nothing in the record to support this allegation. See Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980) (stating that, in making a claim of bias or 

prejudice against an administrative judge, a party must overcome the presumption of 

honesty and integrity that accompanies administrative adjudicators).
6

1355-56 (Fed. Cir. 2005); Anastos v. U.S. Postal Service, 38 M.S.P.R. 18, 

21 (1988). We have considered the appellant’s petition for review responding to 

the agency’s evidence and, as explained below, we find that the appellant has 

established jurisdiction over his claims. 

The Board has jurisdiction over the appellant’s claims. 

¶9 The Board has jurisdiction over two types of VEOA claims: (1) the denial 

of a right to compete; and (2) the violation of a statute or regulation relating to 

veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference 

claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see 

generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015). 

The appellant appears to have raised both types of claims here. 8 IAF, Tab 1; PFR 

File, Tab 1 at 5‐8, Tab 5 at 5‐9.

¶10 First, to establish Board jurisdiction over a right-to-compete VEOA claim, 

the appellant must: (1) show that he exhausted his remedy with DOL; and 

(2) make nonfrivolous allegations that (i) he is a veteran within the meaning 

of 5 U.S.C. § 3304(f)(1); (ii) the actions at issue took place on or after the

December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of 

2004; and (iii) the agency denied him the opportunity to compete under merit 

 8 On review, the agency argues that the Board should not consider the appellant’s 

challenge to the agency’s use of the EHA to fill the Contract Specialist vacancies 

because he did not raise the allegation below. PFR File, Tab 4 at 6. The agency is 

correct that the Board generally will not consider an argument raised for the first time 

in a petition for review absent a showing that it is based on new and material evidence 

not previously available despite the party’s due diligence. Banks v. Department of the 

Air Force, 4 M.S.P.R. 268, 271 (1980). Here, however, we find it appropriate to 

consider the appellant’s arguments pertaining to his right‐to‐compete claim for the first 

time on review because it appears that he was not informed that the agency had filled 

the Contract Specialist vacancies using the EHA program until he received the agency’s 

motion to dismiss on the date the record closed, and he was not afforded an opportunity 

to respond to the agency’s submission below. IAF, Tab 6; see Nevins v. U.S. Postal 

Service, 107 M.S.P.R. 595, ¶ 17 (2008) (finding it appropriate to consider new evidence 

on petition for review because the appellant was not informed of the evidentiary 

conflict until she received the agency’s final submission on the date the record closed).
7

promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce in violation of 5 U.S.C. 

§ 3304(f)(1). Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, 

¶ 5 (2010).

¶11 Second, to establish Board jurisdiction over a veterans’ preference claim, 

the appellant must: (1) show that he exhausted his remedy with DOL; and 

(2) make nonfrivolous allegations that (i) he is a preference eligible within the 

meaning of VEOA; (ii) the action at issue took place on or after the October 30, 

1998 enactment date of VEOA; and (iii) 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), aff’d, 818 F.3d 1357

(Fed. Cir. 2016). A statute or regulation “relating to veterans’ preference” under 

VEOA is one that stands in some relation to, has a bearing on, concerns, and has 

some connection with veterans’ preference rights. Dean v. Department of 

Agriculture, 99 M.S.P.R. 533, ¶ 17 (2005), aff’d on recons., 104 M.S.P.R. 1

(2006).

¶12 In this case, the administrative judge found, and we agree, that the appellant 

exhausted his remedy with DOL. ID at 4‐5. Further, it is undisputed that the 

appellant made nonfrivolous allegations that he is a preference eligible and that 

the events took place after the enactment dates mentioned above. IAF, Tab 1. 

Thus, we need only decide whether the appellant has made nonfrivolous 

allegations that: (1) the agency denied him an opportunity to compete in 

violation of section 3304(f)(1); and/or (2) the agency violated his rights under a 

statute or regulation relating to veterans’ preference. In establishing the Board’s 

jurisdiction over a VEOA appeal, an appellant need not state a claim upon which 

relief can be granted, and 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.
8

¶13 Regarding his right-to-compete claim, the appellant alleges that the agency 

denied him the right to compete for a vacant position for which the agency 

accepted applications from individuals outside its own workforce in violation 

of 5 U.S.C. § 3304(f)(1) by, among other things, filling the Contract Specialist 

vacancies using the EHA program without openly advertising the vacancy 

announcement under the EHA.

9

 PFR File, Tab 1 at 5‐7. Pursuant to 5 U.S.C. 

§ 3304(f)(1), agencies must afford preference eligibles and other covered 

individuals “the opportunity to compete for vacant positions for which the agency 

making the announcement will accept applications from individuals outside its 

own workforce under merit promotion procedures.” The requirement that 

agencies afford covered individuals the right to compete pursuant to 5 U.S.C. 

§ 3304(f)(1) is not limited merely to situations in which an agency elects to use 

merit promotion procedures, but rather is triggered when an agency accepts 

applications from individuals outside its own workforce. Montgomery v. 

Department of Health & Human Services, 123 M.S.P.R. 216, ¶ 7 (2016). An 

agency may violate a covered individual’s right to compete under

section 3304(f)(1) when it deprives him of the right to apply by filling a position 

without the required public notice. Dean v. Office of Personnel 

Management, 115 M.S.P.R. 157, ¶ 28 (2010).

¶14 Below, the agency submitted its internal guidance for using the EHA, which 

states that positions to be filled using that authority must be advertised on 

USAJOBS as “Job Opportunity Announcements.” IAF, Tab 6 at 18. It is unclear 

from the record whether that occurred for the vacancies at issue. Further, to date, 

 9 The appellant also argues that the agency’s use of the EHA program to fill the 

vacancies after September 30, 2015, was unauthorized because the EHA program 

expired on September 30, 2015. PFR File, Tab 1 at 2, 6. This assertion is incorrect. 

Although a prior version of the statute had an expiration date of September 30, 2015, 

the National Defense Authorization Act for Fiscal Year 2013 extended the EHA until 

September 30, 2017. National Defense Authorization Act for Fiscal Year 2013, Pub. L. 

No. 112‐239, § 803(b), 126 Stat. 1632, 1825 (2013). The current version of the statute 

does not contain any expiration date for the EHA program. 10 U.S.C. § 1705(g) (2015).
9

the agency has not disputed the appellant’s claim that it accepted applications 

from outside of its own workforce in filling the Contract Specialist vacancies 

under the EHA program. IAF, Tab 6; PFR File, Tab 1 at 7-8, Tab 4. If it did, the 

appellant was entitled to an opportunity to compete for the positions pursuant 

to 5 U.S.C. § 3304(f)(1). The appellant has nonfrivolously alleged that the 

agency failed to openly advertise the position under the EHA program, thus 

establishing jurisdiction over his right-to-compete claim. See Montgomery, 123 

M.S.P.R. 216, ¶ 5.

¶15 Regarding his veterans’ preference claim, the appellant argues that the 

agency violated 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to credit 

him with all experience and education material to the positions. IAF, 

Tab 1 at 10-14; PFR File, Tab 1 at 7. He noted that his application package 

included a Standard Form 50 indicating that he previously had held a Contract 

Specialist position in another agency and that the agency failed to credit him with 

that experience. IAF, Tab 1 at 11. It is unclear from the current record how the 

agency obtained applications and made selections under the EHA for the 

vacancies at issue. It is also unclear whether those on the hiring certificate for 

vacancy announcement number 1460254 were, or should have been, considered 

for the EHA hires. We find that the appellant has nonfrivolously alleged that the 

agency did not comply with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by 

failing to consider his experience when reviewing his application for the Contract 

Specialist positions. See Miller, 121 M.S.P.R. 88, ¶ 7. We also find that the 

appellant nonfrivolously alleged that the agency failed to comply with pass-over 

procedures under 5 U.S.C. § 3318 by selecting nonpreference eligibles over him, 

a preference eligible. IAF, Tab 1 at 10, 13; PFR File, Tab 1 at 7‐8; see Alegre v. 

Department of the Navy, 118 M.S.P.R. 424, ¶ 13 (2012). Accordingly, we find 

that the Board has jurisdiction over the appellant’s veterans’ preference claims. 
10

This appeal must be remanded because there are genuine issues of material fact 

that cannot be resolved on the current record.

¶16 The Board has the authority to decide a VEOA appeal on the merits, without 

a hearing, when there is no genuine dispute of material fact and one party must 

prevail as a matter of law. Montgomery, 123 M.S.P.R. 216, ¶ 13. As discussed 

herein, there remain genuine disputed issues of material fact that cannot be 

resolved on the current record. Therefore, this appeal must be remanded for the 

record to be fully developed regarding the material facts. See id.

¶17 As previously noted, pursuant to 5 U.S.C. § 3304(f)(1), agencies must 

afford preference eligibles and other covered individuals the opportunity to 

compete for vacant positions when it accepts applications from outside its own 

workforce, and a lack of public notice of the vacancy may violate that right. 

Dean, 115 M.S.P.R. 157, ¶ 28. Here, the agency contends that it did not select 

any candidate from the certificate of eligibles generated under vacancy 

announcement number 1460254, and the appellant submitted a copy of an email 

informing him that the vacancy announcement had been canceled. IAF, Tab 1 

at 9, Tab 6 at 6. The agency has not explained how it obtained the names of the 

applicants it ultimately selected to fill the Contract Specialist vacancies. IAF, 

Tab 6; PFR File, Tab 4. Consequently, it is unclear from the current record 

whether the agency relisted the vacancy announcement under the EHA program,

whether it made its selections through a name request from vacancy 

announcement number 1460254, or whether it made its selections from another 

source. 10 See IAF, Tab 6 at 6; see also id. at 19. Accordingly, we find that there 

 10 The vacancy announcement under which the appellant applied does not identify that 

the position will be filled under the EHA program. IAF, Tab 1 at 16‐26, Tab 6 at 7-13. 

The agency’s internal guidance provides that a vacancy announcement that will be filled

under the EHA program must be advertised on USAJOBS and must identify the use of 

the EHA authority. Id. at 18. It further provides that selections may be made either 

from a referral certificate, which requires that preference eligibles must be considered 

before all nonpreference-eligible candidates, or through a name request. Id. at 19. 
11

is insufficient evidence in the record to determine if the agency denied the 

appellant the right to compete in filling the vacancies at issue in this appeal. 

¶18 Further, given the lack of evidence about how the agency filled the Contract 

Specialist vacancies, we are unable to determine if the appellant was entitled to 

any veterans’ preference rights and, if so, whether the agency violated any such 

rights. In addition to the dearth of information regarding how it selected 

individuals under the EHA, it is unclear from the record whether the selectees 

were appointed under an authority that allows the agency to appoint individuals 

without regard to veterans’ preference laws.

11 If the appellant was entitled to 

veterans’ preference rights, then it is unclear whether the agency properly 

afforded him those rights because the record is void of evidence pertaining to the 

agency’s apparent determination that the appellant was not qualified for the 

Contract Specialist positions. On remand, the parties should be afforded an 

opportunity to submit evidence and argument regarding the agency’s selection 

process and the appointment authority used by the agency to fill the position at 

issue. 

 11 The agency contends that it filled the Contract Specialist positions using the EHA, as 

codified at 10 U.S.C. § 1705(g), and that selections made using the EHA “may be made 

without regard to the provisions of 5 USC 3309-3318.” PFR File, Tab 4 at 7-8. 

Although some appointments under title 10 may be made without regard to the civil 

service laws, including those relating to veterans’ preference, see, e.g., Boston v. 

Department of the Army, 122 M.S.P.R. 577, ¶ 9 (2015), nothing in section 1705 states 

that appointments may be made without regard to veterans’ preference laws, see

10 U.S.C. § 1705. Moreover, the agency’s internal EHA guidance indicates that 

veterans’ preference procedures apply, at least when using a referral certificate. IAF, 

Tab 6 at 19.
12

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.

______________________________

Jennifer Everling

Acting Clerk of the Board