Jolley v. MSPB

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

WILLIAM B. JOLLEY,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2018-1538
______________________

Petition for review of the Merit Systems Protection
Board in No. SF-4324-17-0728-I-1.
-------------------------------------------------

WILLIAM B. JOLLEY,
Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________

2018-1539
______________________
2 JOLLEY v. MSPB

Petition for review of the Merit Systems Protection
Board in No. AT-3330-18-0074-I-1.
______________________

Decided: October 2, 2018
______________________

WILLIAM B. JOLLEY, Brunswick, GA, pro se.

SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________

Before CHEN, MAYER, and BRYSON, Circuit Judges.
PER CURIAM.
William B. Jolley seeks review of two final decisions of
the Merit Systems Protection Board (Board) denying his
requests for corrective action based on alleged violations
of the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301–
4335, and the Veterans Employment Opportunities Act
(VEOA), 5 U.S.C. §§ 3302–30. We address these two
appeals in a single opinion because they cover similar
questions and are based on the exact same record. Be-
cause the Board correctly determined that it lacked
jurisdiction to consider either request, we affirm.
BACKGROUND
Mr. Jolley is a preference-eligible veteran who served
with the U.S. Air Force for nine years before being honor-
ably discharged in 1959. Mr. Jolley is also a former
employee of the U.S. Department of Housing and Urban
Development (HUD). In 2008, HUD transferred Mr.
Jolley from his GS-15 Operations Specialist position in
JOLLEY v. MSPB 3

Jacksonville, Florida, to a GS-15 Field Office Director
position in Boise, Idaho. He retired on March 31, 2010.
In 2017, Mr. Jolley applied for two HUD vacancies
and was not selected to fill either vacancy. On September
27, 2017, Mr. Jolley filed an appeal with the Board alleg-
ing that: (1) HUD, as reprisal for Mr. Jolley’s pre-2008
allegations that HUD had violated USERRA when it in
2008 reassigned him from Jacksonville, Florida, to Boise,
Idaho; and (2) HUD’s use of “dual announcements” in the
two vacancies Mr. Jolley applied for in 2017 violated
USERRA and VEOA by failing to fairly evaluate his
applications for those vacancies. This second allegation
rests in part on Mr. Jolley’s assertion that his non-
selection was a retaliatory act by HUD for his various
prior claims of USERRA violations. Mr. Jolley requested
an order requiring HUD to assign Mr. Jolley to a GS-15
supervisory position east of the Mississippi River as of
April 1, 2010, and to provide him with associated back-
pay.
On September 29, 2017, the Board issued an order di-
recting Mr. Jolley to show good cause as to why his appeal
should not be dismissed for attempting to appeal a claim
that had already been raised in an earlier appeal. Mr.
Jolley has previously appealed a decision finding that his
directed reassignment complied with USERRA. See
Jolley v. Merit Systems Protection Board, 636 Fed. App’x
567 (Fed. Cir. 2016). That case is currently pending at
the Board after remand from this Court. On October 5,
2017, Mr. Jolley responded to the Board’s order, acknowl-
edging that the present appeal concerns the same matter
being considered in the 2016 appeal and asserting that
there has not been sufficient action taken by the Board to
resolve the issue.
On September 29, 2017, the Board issued a second or-
der addressing the USERRA allegations relating to Mr.
Jolley’s non-selection for two positions. In that second
4 JOLLEY v. MSPB

order, the Board stated that there was a question as to
whether the appeal was within the Board’s jurisdiction.
The Board set out the circumstances under which it would
have jurisdiction over a USERRA appeal and ordered Mr.
Jolley to show good cause why it had jurisdiction over his
appeal, including any specific allegations and evidence
that Mr. Jolley’s uniformed service was a substantial or
motivating factor in HUD’s decision in selecting who
would fill the 2017 vacancies.
On October 5, 2017, Mr. Jolley responded to the sec-
ond order, alleging that “a substantial and motivating
factor” in HUD’s decision not to choose him for the 2017
HUD vacancies was due to his complaint that he had not
been chosen for prior 2016 HUD vacancies on account of
his veteran status. Mr. Jolley then provided a chronology
from 2004 through 2017 of instances where HUD alleged-
ly discriminated against him. HUD filed an agency
response, and Mr. Jolley replied two days later.
On November 17, 2017, the Board issued an initial
decision explaining that the directed reassignment matter
was not properly at issue in this appeal because it is
currently pending before the Board in a separate appeal.
The Board dismissed the USERRA complaint for lack of
jurisdiction because Mr. Jolley failed to assert a non-
frivolous allegation, due to the conclusory and vague
nature of the complaint. The Board found that Mr. Jolley
did not allege sufficient facts to show that his uniformed
service was a substantial and motivating factor in his
failure to be chosen for the HUD vacancies.
The Board docketed Mr. Jolley’s VEOA claim relating
to the 2017 HUD vacancy announcements as a separate
appeal. On November 3, 2017, the Board issued an order
explaining what the statute requires for the Board to
have jurisdiction over a VEOA appeal and requesting
proof that Mr. Jolley complied with those requirements.
Among the requirements was 5 U.S.C. § 3330(a)(1)(A)’s
JOLLEY v. MSPB 5

need for the appellant to establish that he exhausted his
Department of Labor administrative remedy before bring-
ing an appeal to the Board. Mr. Jolley responded with a
motion noting his disagreement with the Board’s sua
sponte docketing of a separate appeal for the VEOA issue
and asking the Board to dismiss the VEOA appeal so that
his USERRA and VEOA-based appeals could be heard in
a single case. On November 7, 2017, the Board denied
Mr. Jolley’s motion, citing its discretionary authority to
regulate the course of appeals. On November 16, 2017,
Mr. Jolley responded, maintaining his request to dismiss
the VEOA appeal and confirming that he has not filed the
requisite complaint with the Department of Labor in
order for the Board to have jurisdiction over the VEOA
appeal. The Board denied the VEOA appeal for lack of
jurisdiction, citing both Mr. Jolley’s failure to file a com-
plaint with the Department of Labor and Mr. Jolley’s
failure to assert a non-frivolous allegation that HUD’s
decisions not to choose him to fill the vacancies violated
the VEOA.
Mr. Jolley appeals. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
We must affirm a final decision of the Board unless
we find it to be: (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence. 5 U.S.C. § 7703(c). We review de
novo the Board’s determinations concerning jurisdiction
but review for substantial evidence factual findings that
underlie the Board’s jurisdictional analysis. Parrott v.
Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
The Board’s jurisdiction is limited to that expressly
granted by statute, rule, or regulation. See 5 U.S.C.
§ 7701(a); Delalat v. Dep’t of Air Force, 557 F.3d 1342,
6 JOLLEY v. MSPB

1343 (Fed. Cir. 2009). The burden is on the petitioner to
establish the Board’s jurisdiction over his or her appeal by
a preponderance of the evidence. Delalat, 557 F.3d at
1343. If the appellant makes non-frivolous allegations,
the Board should hold a hearing for the appellant to
present further evidence. Coradeschi v. Dep’t of Home-
land Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006).
As the Board noted, the issue of whether the Board
properly dismissed Mr. Jolley’s appeal regarding his
reassignment from Florida to Idaho is currently pending
in front of the Board after remand from this court in a
separate matter. See Jolley v. Merit Sys. Prot. Bd., 636 F.
App’x 567, 569–70 (Fed. Cir. 2016). That issue is there-
fore not properly on appeal in this proceeding.
Moreover, as to Mr. Jolley’s attack against the use of
“dual announcements” to fill a vacancy, we have already
decided that dual announcements comply with both the
VEOA and USERRA. 1 See Joseph v. FTC, 505 F.3d 1380,
1385 (Fed. Cir. 2007) (holding that the use of dual an-
nouncements does not violate the VEOA).
As we explained in Joseph, federal agencies generally
use two types of selection to fill vacancies: (1) an open
“competitive examination” process, and (2) the “merit
promotion” process. 505 F.3d at 1381. When an agency
uses both types of hiring processes for a particular posi-
tion, it issues “dual announcements.” The open competi-
tive examination generally is used for employees seeking
to join the competitive service and often is used for re-
viewing applicants outside the agency. Id. Under this

1 In a non-precedential opinion, we have previously
rejected a prior challenge by Mr. Jolley under USERRA to
HUD’s use of dual announcements. Jolley v. Dep’t of
Hous. & Urban Dev., 299 F. App’x 966, 968 (Fed. Cir.
2008).
JOLLEY v. MSPB 7

process, applicants for employment are given a numerical
rating and placed on a list of qualified personnel for
appointment. Id. (citing 5 C.F.R. § 2.1). The applicants
with the three highest ratings are submitted to the ap-
pointing official, who is ordinarily required to select one of
them. Id. (citing 5 U.S.C. § 3318(a) (1978)). Under the
VEOA, veterans seeking such employment receive special
advantages, including five or ten points being added to
their scores and being ranked ahead of candidates with
the same score. Id. at 1381–82.
The merit promotion process is used when the posi-
tion is to be filled by an employee of the agency or by an
applicant from outside the agency who has “status” in the
competitive service. Id. at 1382 (citing 5 C.F.R.
§ 335.103(b)(1)). Veterans’ point preferences under the
competitive appointment process do not apply in the merit
promotion process, but veterans may not be denied the
opportunity to apply. Id. (citing 5 U.S.C. §§ 3304(f)(3)-
(4)).
In Joseph, we looked to Abell v. Department of the Na-
vy, 343 F.3d 1378 (Fed. Cir. 2003), to provide guidance.
Joseph, 505 F.3d at 1384–85. In Abell, we determined
that use of dual vacancy announcements did not violate
the VEOA. 343 F.3d at 1384–85. We concluded that
because the veteran was given the opportunity to compete
in the process, which was all that the VEOA required, the
Navy’s decision to fill the position through the merit
promotion system rather than through the competitive
process did not violate the veteran’s rights. Id. We then
adopted the same reasoning and result in Joseph to
determine that dual vacancy announcements did not
violate the VEOA. 505 F.3d at 1384–85.
We have interpreted a violation of USERRA to require
“discriminatory animus,” or that the veteran be treated in
a harsher manner than non-veterans. Sheehan v. Dep’t of
Navy, 240 F.3d 1009, 1014 n.3 (Fed. Cir. 2001). Here, Mr.
8 JOLLEY v. MSPB

Jolley did not allege specific facts indicating that dual
announcements were utilized in a discriminatory way.
To prove a USERRA violation, an appellant bears the
initial burden of showing by a preponderance of the
evidence that the employee’s military service was “a
substantial or motivating factor” in the adverse employ-
ment action. See Sheehan, 240 F.3d at 1013. Mr. Jolley
alleges he would have been selected to fill the 2017 HUD
vacancies “if the competition had been fairly administered
in accordance with law.” Appeal No. 2018-1538 Appendix
25. Mr. Jolley then alleges that the fact that he appealed
his 2016 non-selections to the Department of Labor and
the Board was a substantial and motivating factor for him
not being selected to fill the 2017 vacancies. Id. Mr.
Jolley does not provide anything more specific to support
these otherwise conclusory allegations.
On the record presented, we agree that Mr. Jolley did
not meet his burden of making non-frivolous allegations
that HUD violated the VEOA or USERRA by not selecting
Mr. Jolley for the 2017 vacancies. Accordingly, we agree
that the Board does not have jurisdiction to hear Mr.
Jolley’s VEOA and USERRA claims. We also agree that
the Board lacks jurisdiction to hear the VEOA appeal
because Mr. Jolley did not exhaust his Department of
Labor remedy.
For the foregoing reasons, the final decision of the
Board is affirmed.
AFFIRMED