NOTE: This disposition is nonprecedential.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 Justice, 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: 1 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 corrective action from the Merit Systems Protection Board, asserting 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 announcements, each announcement addressing the same 

pair of job openings for field office director positions: one 

position in Louisville, Kentucky; the other position in Columbia, South Carolina. SAppx. 167, 308. One of the announcements (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 government hiring processes). Mr. Jolley, a preference-eligible 

veteran, was interviewed for both positions but was not selected. 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 decision not to hire him for either position violated the VEOA. 

SAppx. 1–10. In January 2018, the assigned administrative 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 requirements 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 related to veterans’ preference and (2) he was allowed to compete for both positions as required under the meritpromotion 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) 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). Substantial evidence is “‘such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.’” McLaughlin v. Office of Personnel Management, 353 F.3d 1363, 1369 (Fed. Cir. 2004) (quoting Matsushita 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 miscellaneous 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 highest-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 receive 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 apply and compete. Id. (citing 5 U.S.C. § 3304(f)(1)). 

A preference-eligible veteran, which Mr. Jolley undisputedly 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 relates 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: 4 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 position 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 relevant 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 interviewed); 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 meritpromotion 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 announcements. In a case in which a single position was the subject 

of two announcements, we found no violation and explained 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 

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6 JOLLEY v. HUD

promotion processes and ultimately chose to fill both positions under the merit-promotion procedure. Mr. Jolley also 

was clearly given an opportunity to compete for both positions.

Relatedly, Mr. Jolley offers no sound criticism of the 

Board’s decision when he points out that HUD did not utilize 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 rating. Indeed, the VEOA expressly states that the “opportunity to compete” provision which applies to the meritpromotion process, “shall not be construed to confer an entitlement to veterans’ preference that is not otherwise required by law.” 5 U.S.C. § 3304(f)(3) (emphasis added); see 

also Joseph, 505 F.3d at 1383 (“[A]n employee is not entitled to veterans’ preference in the merit promotion process.” (citation omitted)).

Mr. Jolley also argues that he has been “adversely affected 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 “accepted argument” about the Uniformed Services Employment 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 addressed separately, by the Board and this court, see Jolley 

Case: 22-2303 Document: 47 Page: 6 Filed: 12/07/2023
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 hearing 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 context before. Jones v. Department of Health and Human 

Services, 640 F. App’x 861, 864 (Fed. Cir. 2006). As discussed 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 entitled to invoke the exemption from the docketing fee applicable 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: 7 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 department[]” 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 Ratification 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 adjudication 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 affirmed.

The parties shall bear their own costs.

AFFIRMED

Case: 22-2303 Document: 47 Page: 8 Filed: 12/07/2023