Case: 22-2303 Document: 47 Page: 1 Filed: 12/07/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WILLIAM B. JOLLEY,
Petitioner
v.
DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT,
Respondent
______________________
2022-2303
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-18-0138-B-1.
______________________
Decided: December 7, 2023
______________________
WILLIAM B. JOLLEY, Brunswick, GA, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, FRANKLIN E.
WHITE, JR.
______________________
Before TARANTO, CHEN, and CUNNINGHAM, Circuit Judges.
Case: 22-2303 Document: 47 Page: 2 Filed: 12/07/2023
2 JOLLEY v. HUD
PER CURIAM.
William B. Jolley applied for two positions with the
U.S. Department of Housing and Urban Development
(HUD)—each one to serve as a field office director—but
was not selected for either position. He then sought correc-
tive action from the Merit Systems Protection Board, as-
serting that HUD had violated the Veterans Employment
Opportunities Act of 1998 (VEOA), 5 U.S.C. § 3300a. The
Board denied his request. Jolley v. Department of Housing
and Urban Development, No. AT-3330-18-0138-B-1, 2022
WL 3578093 (M.S.P.B. Aug. 19, 2022); SAppx. 307–24. 1 On
Mr. Jolley’s appeal, we affirm the Board’s decision.
I
In February 2017, HUD issued two job-vacancy an-
nouncements, each announcement addressing the same
pair of job openings for field office director positions: one
position in Louisville, Kentucky; the other position in Co-
lumbia, South Carolina. SAppx. 167, 308. One of the an-
nouncements (17-HUD-269) identified a merit-promotion
process, and the other (17-HUD-270-P) identified an open
competitive-examination process. See SAppx. 185–86,
196–98, 204; see also Joseph v. Federal Trade Commission,
505 F.3d 1380, 1381–82 (Fed. Cir. 2007) (describing gov-
ernment hiring processes). Mr. Jolley, a preference-eligible
veteran, was interviewed for both positions but was not se-
lected. SAppx. 205, 308. Ultimately, both positions were
filled via a merit-promotion process. SAppx. 205.
In December 2017, Mr. Jolley filed an appeal with the
Board under 5 U.S.C. § 3330a, alleging that HUD’s deci-
sion not to hire him for either position violated the VEOA.
SAppx. 1–10. In January 2018, the assigned administra-
tive judge dismissed the appeal for lack of jurisdiction.
1 “SAppx.” refers to the supplemental appendix filed
by HUD in this court with its brief as respondent.
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JOLLEY v. HUD 3
SAppx. 101–14. Mr. Jolley sought review by the full Board,
SAppx. 118–27, and in May 2022, the Board reversed the
dismissal, holding that Mr. Jolley had met the require-
ments to establish the Board’s jurisdiction to hear his
VEOA appeal, and remanded the case for adjudication on
the merits. SAppx. 325–29.
On August 19, 2022, the administrative judge denied
Mr. Jolley’s request for corrective action under the VEOA,
SAppx. 307–24, relying on the written record because there
were “no genuine issues of material fact in dispute,” SAppx.
307–08. The administrative judge ruled that Mr. Jolley
failed to establish a VEOA violation because (1) he did not
show that HUD violated any statutes or regulations re-
lated to veterans’ preference and (2) he was allowed to com-
pete for both positions as required under the merit-
promotion process. SAppx. 308–16. That ruling became
the final decision of the Board on September 23, 2022.
SAppx. 316.
Mr. Jolley timely filed his appeal on September 29,
2022, as permitted by 5 U.S.C. § 7703(b)(1)(A). We have
jurisdiction under 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A).
II
We will affirm the Board’s decision unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.’” McLaughlin v. Office of Personnel Manage-
ment, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsu-
shita Electric Industrial Co. v. United States, 750 F.2d 927,
933 (Fed. Cir. 1984)). “The petitioner [in this court, Mr.
Jolley] bears the burden of establishing error in the Board’s
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4 JOLLEY v. HUD
decision.” Harris v. Department of Veterans Affairs, 142
F.3d 1463, 1467 (Fed. Cir. 1998).
In the present appeal, Mr. Jolley’s arguments fall into
two classes. First, he asserts that the Board made several
factual and legal errors related to the merits of his VEOA
claims. Second, he asserts that the Board committed mis-
cellaneous procedural errors during the proceedings. We
address these arguments in turn.
A
We start by considering Mr. Jolley’s challenges related
to the merits of the Board’s decision. “Federal agencies
generally use two types of selection to fill vacancies: (1) the
open ‘competitive examination’ process and (2) the ‘merit
promotion’ process.’” Joseph, 505 F.3d at 1381. Under the
competitive-examination process, applicants are given a
numerical rating and placed on a list of qualified personnel
for appointment. Id. (citing 5 C.F.R. § 2.1). The three high-
est-rated applicants are then considered by the appointing
official, who is generally required to select one of them. Id.
(citing 5 U.S.C. § 3318(a)). Under the VEOA, veterans re-
ceive special advantages in this process; for example, five
or ten points are added to their scores, and they are ranked
ahead of candidates with the same score. Id. at 1381–82
(first citing 5 U.S.C. § 3309; 5 C.F.R. § 337.101(b); and then
citing 5 U.S.C. § 3313; 5 C.F.R. § 332.401). Under the
merit-promotion process, veterans are not entitled to those
hiring preferences (e.g., veterans’ point preferences). Id. at
1382. But veterans are guaranteed the opportunity to ap-
ply and compete. Id. (citing 5 U.S.C. § 3304(f)(1)).
A preference-eligible veteran, which Mr. Jolley undis-
putedly is, can present either of two types of claims to the
Board under the VEOA. The first is a claim that an agency
violated his rights under a statute or regulation that re-
lates to veterans’ preferences in federal employment. See
5 U.S.C. § 3330a(a)(1)(A). The second is a claim that an
Case: 22-2303 Document: 47 Page: 5 Filed: 12/07/2023
JOLLEY v. HUD 5
agency denied him the opportunity to compete for a vacant
position. See 5 U.S.C. §§ 3304(f)(1), 3330a(a)(1)(B).
Here, Mr. Jolley appears to argue that it was error for
the Board not to consider the amount of time that elapsed
between the announcement of a field officer director posi-
tion in Columbia and the agency’s eventual filling of that
position. But he has not shown that this elapsed-time
grievance gives him a VEOA claim of either of the two
types. As to the first, Mr. Jolley has failed to identify a
statute or regulation related to hiring timing that is rele-
vant to veterans’ preference rights. As to the second, Mr.
Jolley was undeniably given an opportunity to compete. He
was listed on the Columbia position hiring certificates, see
SAppx. 208–09, and was interviewed for the position, see
SAppx. 205. See Joseph, 505 F.3d at 1383–84 (explaining
that the petitioner was given a full opportunity to compete
when he was included on the merit-promotion list and in-
terviewed); Abell v. Department of the Navy, 343 F.3d 1378,
1383–85 (Fed. Cir. 2003).
Mr. Jolley next alleges that the Board incorrectly
stated that vacancy announcement 17-HUD-269, with its
competitive-examination process, was “for Louisville” and
that vacancy announcement 17-HUD-270-P, with its merit-
promotion process, was “for Columbia,” SAppx. 308 n.1,
309, when in fact both vacancy announcements advertised
both positions (in the two locations). But Mr. Jolley has not
shown how the Board’s description produced an error in
finding no VEOA claim. He has identified no statute or
regulation that is violated by dual-position announce-
ments. In a case in which a single position was the subject
of two announcements, we found no violation and ex-
plained that, when hiring, an agency has “the discretion to
fill a vacant position by any authorized method.” Joseph,
505 F.3d at 1384–85 (citation omitted); see 5 C.F.R.
§ 330.102. Mr. Jolley has not shown a violation on the facts
he describes: HUD accepted applications for the positions
under both the competitive-examination and merit-
Case: 22-2303 Document: 47 Page: 6 Filed: 12/07/2023
6 JOLLEY v. HUD
promotion processes and ultimately chose to fill both posi-
tions under the merit-promotion procedure. Mr. Jolley also
was clearly given an opportunity to compete for both posi-
tions.
Relatedly, Mr. Jolley offers no sound criticism of the
Board’s decision when he points out that HUD did not uti-
lize category rating in making its hiring decisions. Under
the merit-promotion process, the process by which both the
Louisville and Columbia positions were ultimately filled,
see SAppx. 205, HUD was not required to use category rat-
ing. Indeed, the VEOA expressly states that the “oppor-
tunity to compete” provision which applies to the merit-
promotion process, “shall not be construed to confer an en-
titlement to veterans’ preference that is not otherwise re-
quired by law.” 5 U.S.C. § 3304(f)(3) (emphasis added); see
also Joseph, 505 F.3d at 1383 (“[A]n employee is not enti-
tled to veterans’ preference in the merit promotion pro-
cess.” (citation omitted)).
Mr. Jolley also argues that he has been “adversely af-
fected by HUD’s non-compliance with 42 U.S.C.
[§] 3535(p).” Pet’r Inf. Br. at 12–13. The cited subsection
relates to the reorganization of HUD field offices. The
Board correctly found it irrelevant to Mr. Jolley’s VEOA
claim. See SAppx. 309–10.
Finally, Mr. Jolley appears to argue that the Board “ac-
cepted argument” about the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (USERRA)
and thus should have decided this case on USERRA
grounds. But Mr. Jolley’s USERRA claims related to these
field office director positions have never been part of this
appeal, see SAppx. 6, and indeed have already been ad-
dressed separately, by the Board and this court, see Jolley
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JOLLEY v. HUD 7
v. Merit Systems Protection Board, 752 F. App’x 964 (Fed.
Cir. 2018). 2
B
We now turn to Mr. Jolley’s procedural arguments.
First, Mr. Jolley argues that the Board erred in deciding
his appeal without a hearing. We discern no error. A hear-
ing is unnecessary if there is no genuine issue of fact that
could alter the outcome. See 5 C.F.R. § 1208.23(b). We
have recognized this familiar principle in the VEOA con-
text before. Jones v. Department of Health and Human
Services, 640 F. App’x 861, 864 (Fed. Cir. 2006). As dis-
cussed above, Mr. Jolley’s legal arguments are unavailing,
and he has failed to identify a factual dispute that could
change the outcome of his case.
Finally, Mr. Jolley argues that the administrative
judge who decided his case is “according to the criteria in
Lucia v. SEC, [138 S. Ct. 2044 (2018),] not constitutionally
qualified.” Pet’r Inf. Br. at 13. That argument lacks merit.
We have previously held that the Board’s administrative
judges are not principal officers under the Appointments
Clause. McIntosh v. Department of Defense, 53 F.4th 630,
638–41 (Fed. Cir. 2022). And if the Board’s administrative
judges are inferior officers, the administrative judge here
was properly appointed under the Appointments Clause—
2 For this reason, we also deny Mr. Jolley’s motion
for reconsideration of our January 25, 2023 order directing
him to pay the docketing fee or move to proceed in forma
pauperis (if appropriate). Motion Regarding USERRA Fee
Waiver, ECF No. 18; see Order, ECF No. 17; Order, ECF
No. 20. With no USERRA claim here, Mr. Jolley is not en-
titled to invoke the exemption from the docketing fee appli-
cable to petitions for review of a Board decision where the
underlying appeal at the Board involved a claim under
USERRA. 38 U.S.C. §§ 4323(h), 4324; Fed. Cir. R. 52 note.
Case: 22-2303 Document: 47 Page: 8 Filed: 12/07/2023
8 JOLLEY v. HUD
by the Board’s quorum as the “head[] of department[].” See
id. at 641–42. While the Board lacked a quorum between
January 7, 2017 and March 3, 2022, a reconstituted
quorum of the Board, which qualifies as a “head[] of depart-
ment[]” under the Appointments Clause, id. at 641, issued
an order on March 4, 2022, ratifying prior appointments of
administrative judges—including the administrative judge
here. See U.S. Merit Systems Protection Board Ratifica-
tion Order (Mar. 4, 2022), available at
https://www.mspb.gov/foia/files/AJ_Ratification_Order_3-
4-2022.pdf. That ratification order was issued over two
months before Mr. Jolley’s case was remanded for the ad-
judication that is the subject of the present appeal. See
SAppx. 325–26.
III
We have considered Mr. Jolley’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the decision of the Merit Systems Protection Board is af-
firmed.
The parties shall bear their own costs.
AFFIRMED