NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH VANDERFORD,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1018
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-300A-15-0006-I-1, SF-3330-14-0556-I-1.
______________________
Decided: August 1, 2016
______________________
KENNETH VANDERFORD, San Diego, CA, pro se.
ALISON VICKS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BENJAMIN C.
MIZER, ROBERT E. KIRSCHMAN, JR., REGINALD T. BLADES,
JR.
______________________
Before NEWMAN, MOORE, and STOLL, Circuit Judges.
2 VANDERFORD v. DVA
Newman, Circuit Judge.
Kenneth Vanderford appeals the decision of the Merit
Systems Protection Board, denying his appeal of non-
selection for a position advertised by the Department of
Veterans Affairs for “preference eligible veterans only.”
Mr. Vanderford also appeals the MSPB’s dismissal of his
related employment practices claim. We affirm the MSPB
rulings. 1
BACKGROUND
Mr. Vanderford is a preference-eligible veteran with a
service-connected disability rated at 30% or more. On
February 13, 2014 the Department of Veterans Affairs
announced two WG-1 Housekeeping Aid positions with
the Veterans Health Administration San Diego
Healthcare System. The announcement stated that the
two positions are limited to preference eligible veterans.
Mr. Vanderford applied, submitting a résumé, occupa-
tional questionnaire, and proof of his status as a prefer-
ence-eligible veteran.
The VA duly prepared two certificates of eligible ap-
plicants, one certificate notated as “competitive referral”
and one notated as “non-competitive referral.” Nine
applicants, all preference-eligible veterans, appeared on
each certificate, sorted alphabetically. There was some
overlap between the two listings, and Mr. Vanderford’s
name appeared on both certificates. Mr. Vanderford was
not selected. He filed a complaint with the Department of
Labor (DOL), stating that his non-selection violated the
Veterans Employment Opportunities Act (VEOA). The
DOL, after an investigation, denied Mr. Vanderford’s
claim, finding that the VA used Merit Promotion Plan
1 Vanderford v. Dep’t of Veterans Affairs, Nos. SF-
330-14-0556-I-1, SF-300A-15-0006-I-1, 2015 WL 4606221
(MSPB August 3, 2015).
VANDERFORD v. DVA 3
(MPP) procedures, which are not subject to review by the
Department of Labor.
Mr. Vanderford appealed to the MSPB, stating that
under competitive examination procedures in accordance
with the VEOA he is entitled to ten veterans preference
points, and that he should have been listed at the top of
the certificates. He also stated that his application was
not given bona fide consideration because his nonselection
was coded as “NS” (nonselected) rather than “NN” (not
contacted). He also stated that the positions had been
filled by non-veterans.
The MSPB found that the persons selected were pref-
erence eligible veterans, and that the positions were filled
through MPP procedures for which no veterans preference
points are applied. The MSPB found that Mr. Vanderford
was not denied the right to compete for the positions, and
that he was not selected after consideration of the qualifi-
cations of all the applicants. The MSPB explained that
veterans preference points do not apply in MPP hiring,
and thus do not apply in the hiring process here utilized.
The MSPB held that the VA did not violate any veterans
preference law in using the MPP process instead of a
competitive process applying veterans preference points.
Mr. Vanderford also complained that the vacancy an-
nouncement and hiring process was an employment
practice in violation of the equal opportunity require-
ments of 5 C.F.R. § 300.103. The MSPB held that it did
not have jurisdiction over Mr. Vanderford’s employment
practices claim, because “an individual agency action or
decision that is not a rule or practice of some kind does
not qualify as an employment practice.” MSPB Decision
¶ 17.
Mr. Vanderford appeals.
4 VANDERFORD v. DVA
DISCUSSION
We review a Board decision to ascertain whether it
was (1) arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; (2) obtained with-
out following the procedures required by law; or (3) un-
supported by substantial evidence. 5 U.S.C. § 7703(c); see
Barrett v. Soc. Sec. Admin., 309 F .3d 781, 785 (Fed. Cir.
2002). Factual findings of the Board are sustained unless
they are not supported by substantial evidence. See
Bolton v. M.S.P.B., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
I
Preference eligible veterans receive statutory benefits
in federal employment. See Lazaro v. Dep’t of Veterans
Affairs, 666 F.3d 1316, 1318 (Fed. Cir. 2012) (discussing
statutes and regulations that provide veterans prefer-
ence). Veterans receive preference in both the competitive
examination hiring process and the MPP hiring process.
The competitive examination process is open to the
public and the hiring decision is premised on the rating
and ranking of the candidates, with additional weight
assigned to veteran status. 5 C.F.R. § 332.101. The
agency must comply with special statutes and regulations
when it evaluates a veteran for a given position. Lazaro,
666 F.3d at 1318. For example, in the competitive exami-
nation process, preference eligible veterans are entitled to
an additional 5 points above a rating based on qualifica-
tions, and disabled veterans are entitled to an additional
10 points. 5 U.S.C. § 3309.
The MPP process is used when the position is desig-
nated to be filled by a current competitive service employ-
ee, but in accordance with 5 U.S.C. § 3304(f)(1) and 5
C.F.R. § 335.103(b)(1) preference eligible veterans have
the right to be considered for positions otherwise open
only to persons who are already employed in the competi-
tive service. When applying under the MPP process, a
VANDERFORD v. DVA 5
preference eligible veteran does not receive veterans
preference points. Joseph, 505 F.3d at 1383-84. Instead,
5 U.S.C. § 3304(f)(1) entitles veterans to compete on the
same grounds as other applicants.
The MPP procedure may also be used to fill positions
restricted by regulation to preference eligible veterans,
such as these Housekeeping Aid positions. See 5 U.S.C.
§ 3310; 5 C.F.R. §§ 330.401, 330.402.
Mr. Vanderford argues that the Housekeeping Aid po-
sitions were improperly filled by the MPP procedure, and
that veterans preference points should have been applied.
As support, Mr. Vanderford points to his numerical score
indicated in the March 5, 2014 email from the agency, the
notation of the referral certificates as “non-competitive”
and “competitive,” and the occupational questionnaire he
filled out as part of the application process. Mr. Vander-
ford’s arguments are rooted in the confusing terminology
and procedures and the murkiness of the agency’s presen-
tation both below and on appeal. Given the complexity of
federal hiring procedures and the baffling terminology, we
address the concerns raised by Mr. Vanderford.
Under MPP procedures, we understand that ques-
tionnaires such as the one Mr. Vanderford filled out are
used to assist the agency in evaluating whether an appli-
cant possesses job-related knowledge, skills, and capabili-
ties. This evaluation may take the form of a numeric
score, but for the MPP procedure, the numeric score does
not include veterans preference points. The VA states
that such numeric scores are used only to create a list of
the best qualified applicants to be referred to the selecting
official by way of the “competitive referral” certificate.
The term “competitive” does not refer to competitive
examination hiring, and the numeric scores are not used
to rank the referred applicants.
Some positions to be filled under the MPP procedure
also permit “non-competitive referral,” whereby prefer-
6 VANDERFORD v. DVA
ence eligible veterans may be referred to the selecting
official on a certificate, even if they are only minimally
qualified. The VA explains that these candidates, includ-
ing disabled veterans, may be referred for consideration
regardless of whether they are within the best qualified
category. Non-competitive referral requires that the
candidate meets the minimum qualifications; listing does
not mean that the candidate will be selected. It is possi-
ble for a particular candidate to be included on both the
competitive and non-competitive referral lists as was Mr.
Vanderford.
The Board determined that these Housekeeping Aid
positions were properly filled by the MPP procedure. One
of the positions was filled with a candidate from the
“competitive referral” certificate. This candidate had a
lower numeric score than did Mr. Vanderford. The MSPB
stated that the use of scores to evaluate applicants’ quali-
fications did not transform the MPP procedure into a
competitive examination procedure, and that the MPP
procedure permits the agency to consider all of an appli-
cant’s qualifications. On this reasoning, the MSPB held
that an agency operating under the MPP procedure may
properly hire a candidate with a lower score, without
violating any requirement of veterans preference. Prece-
dent supports this ruling, explaining that “[a]ll that [5
U.S.C. § 3304(f)(1)] entitles veterans to is ‘the opportunity
to compete for vacant positions’ to be filled . . . .” Joseph,
505 F.3d at 1383.
Mr. Vanderford was listed on the competitive certifi-
cate as one of nine best qualified candidates, and he was
listed on the non-competitive certificate because of his
status as a disabled veteran. The selecting official de-
clared that he considered Mr. Vanderford’s qualifications
but did not choose him because, in his judgment, he was
not one of the two best qualified candidates on the lists.
The MSPB found no error in the agency’s procedures.
VANDERFORD v. DVA 7
Mr. Vanderford argues that various procedural errors
were made by the administrative judge (AJ) or the full
Board. He states that the Board failed to take into ac-
count his June 18, 2014 response to the June 10, 2014
Jurisdictional Order; that the Board improperly denied
his motion of October 10, 2014 to “get clarity with respect
to ‘which veterans’ preference rights’ the administrative
judge was actually considering”; and improperly decided
in favor of the VA after the AJ cancelled the scheduled
hearing at Mr. Vanderford’s request.
Waiver of a hearing does not require a favorable rul-
ing on the merits. For the requested clarification, the AJ
issued a pre-hearing order shortly after Mr. Vanderford’s
motions, addressing the issues to be resolved at the
hearing. We discern no unfairness and no prejudice in
the MSPB procedures.
The Board determined that the Housekeeping Aid po-
sitions were appropriately posted and filled by a veteran
under the MPP procedure, applying 5 U.S.C. § 3310
relating to veterans preference. See Patterson v. Dept. of
the Interior, 424 F.3d 1151, 1155 (Fed. Cir. 2005) (“Veter-
ans’ preference rights are defined by the Veterans’ Prefer-
ence Act of 1944 . . . codified at 5 U.S.C. §§ 2108, 3309–
3320.”) We discern no violation of law as implemented
herein.
II
For the employment practices appeal, Mr. Vanderford
states that the AJ erred in docketing this claim as a
separate appeal, instead of amending his VEOA appeal to
include the employment practices claim. The AJ ruled
that Mr. Vanderford could not amend his VEOA appeal to
include an employment practices claim, for § 3330a(e)(2)
of the VEOA provides that “a preference eligible may not
pursue redress for an alleged [VEOA violation] at the
same time the preference eligible pursues redress for such
violation under any other law, rule or regulation.” It was
8 VANDERFORD v. DVA
therefore not error for the AJ to separately docket Mr.
Vanderford’s employment practices claim. We discern no
prejudice by this procedure.
Although Mr. Vanderford raises several other criti-
cisms, we do not discern violation of statute or regulation.
The Board’s rulings are affirmed.
Each party shall bear its costs.
AFFIRMED