UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC WILLIAMS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

AT-3330-15-0624-I-1

DATE: March 25, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Steven P. Stoer, Philadelphia, Pennsylvania, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied his request for corrective action under the Veterans Employment 

Opportunities Act (VEOA). Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. See title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 On or about November 25, 2014, the agency posted a vacancy 

announcement, listed under Job Announcement Number NE41102-12-

1265003XXXXXXXXE, for the position of Contract Specialist, GS-1102-9/12. 

Initial Appeal File (IAF), Tab 6 at 42-48. The agency announced the vacancy 

pursuant to its Expedited Hiring Authority (EHA) under 10 U.S.C. § 1705(g). 

IAF, Tab 6 at 42. The announcement identified a Quality Ranking Factor (QRF) 

that would be used to determine applicants’ qualifications. Id. at 44-45. The

announcement further explained that applicants not possessing at least one of two 

listed types of experience would be found ineligible for the position. Id. 

¶3 In his application, the appellant indicated on the occupational questionnaire 

that he did not possess either type of experience at issue. Id. at 40. Accordingly, 

the agency determined that he was ineligible for the position, and he was notified 

of that determination in an email dated June 4, 2015. Id. at 10-11. The appellant 

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

agency had violated his veterans’ preference rights. IAF, Tab 4.

2

 By letter dated 

 2 The record reflects that the appellant is a preference eligible. IAF, Tab 9. 
3

June 17, 2015, DOL informed him that it had completed its investigation and 

determined that the evidence did not support his allegation. Id. DOL further 

informed the appellant of his right to appeal the matter to the Board. Id. 

¶4 On June 22, 2015, the appellant filed the instant VEOA appeal, again 

alleging that the agency had violated his veterans’ preference rights when it failed 

to select him for the Contract Specialist position. IAF, Tab 1. Specifically, he 

claimed 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 material to the position. IAF, Tabs 7, 12, 

14. He noted that his application package included a Standard Form 50 (SF‐50) 

indicating that he had previously held a Contract Specialist position in another 

agency. Id. He argued that the agency had improperly relied on his responses to 

the occupational questionnaire when the experience indicated on his SF-50 was 

sufficient to meet the QRF for the position. IAF, Tab 14. He further contended 

that it was improper for the agency to use the QRF to screen out applicants, as 

opposed to using it as a ranking or tie-breaking tool. IAF, Tab 7. In addition, he

claimed that the agency failed to comply with passover procedures under 5 U.S.C. 

§ 3318. IAF, Tabs 7, 12, 14. 

¶5 The administrative judge found that the Board had jurisdiction over the 

matter, but denied the appellant’s request for corrective action. IAF, Tab 16, 

Initial Decision (ID). In his decision, the administrative judge observed that the 

agency had filled the vacancy pursuant to 10 U.S.C. § 1075(g), 3 which authorizes 

the Secretary of Defense to “designate any category of acquisition workforce 

positions as positions for which there exists a shortage of candidates or there is a 

critical hiring need,” and “utilize the authorities in [5 U.S.C. §§ 3304, 5533, and 

 3 The administrative judge cited to 10 U.S.C. § 1705(h), which is where the EHA 

provision was originally codified. See Duncan Hunter National Defense Authorization 

Act for Fiscal Year 2009, Pub. L. No. 110-427, § 833, 122 Stat. 4356 (2008). However, 

the provision has been located at section 1705(g) at all times relevant to this appeal.

See National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 

§ 803, 126 Stat. 1632 (2013) (redesignating section 1705(h) as section 1705(g)). 
4

5753] to recruit and appoint qualified persons to positions directly to positions so 

designated.” The administrative judge reasoned that, because the agency filled 

the Contract Specialist position under the competitive‐service process, the 

relevant statute was 5 U.S.C. § 3304(a)(3), which provides authority for agencies 

to directly appoint candidates to positions, “without regard to the provisions of 

sections 3309 through 3318,” to positions “for which there exists a severe 

shortage of candidates or . . . there is a critical hiring need.” Id. Accordingly, he 

found that the agency was not required to follow 5 U.S.C. §§ 3311(2) and 3318 

when filling the Contract Specialist position through the EHA. ID at 6-7. As for 

the alleged violation of 5 C.F.R. § 302.302(d), the administrative judge noted that 

the regulation governs excepted‐service appointments and therefore is 

inapplicable. ID at 8 n.6. He further found that he lacked authority under VEOA 

to review the manner in which the agency applied the QRF. ID at 7. 

¶6 This petition for review followed. Petition for Review (PFR) File, Tab 1. 

The agency has responded, and the appellant has filed a reply to its response. 

PFR File, Tabs 3, 6. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 On petition for review, the appellant again argues that, in finding that he 

did not meet the QRF, the agency improperly relied on the occupational 

questionnaire instead of considering the experience listed on his SF-50. PFR 

File, Tabs 1, 6. He further argues, for the first time on review, that using the 

QRF to screen out candidates is contrary to the procedures set forth in chapter 5 

of the Office of Personnel Management (OPM) Delegated Examining Operations 

Handbook (DEOH). Id.

4

 

 4 In his reply to the agency’s response to his petition, the appellant further contends 

that, contrary to the initial decision, the agency violated 5 U.S.C. § 3311(2). PFR File,

Tab 6. However, our regulations provide that a party may not raise new allegations of 

error on the part of the administrative judge in a reply to a response to a petition for 

review. 5 C.F.R. § 1201.114(a)(4). In any event, we discern no error in the 
5

¶8 Concerning the appellant’s argument that the agency should have 

considered his SF-50 instead of the occupational questionnaire in deciding

whether he met the QRF, we agree with the administrative judge that the Board 

lacks authority to consider that claim. VEOA does not authorize the Board to 

adjudicate the merits of an agency action beyond determining whether the action 

violated a statute or regulation relating to veterans’ preference. See Villamarzo v. 

Environmental Protection Agency, 92 M.S.P.R. 159, ¶ 5 (2002). The appellant 

has not identified a statute or regulation relating to veterans’ preference that 

would prohibit the agency from relying on an applicant’s response to the 

occupational questionnaire in determining whether the QRF is satisfied. Nor are 

we aware of any such statute or regulation. 

¶9 As to the alleged violation of the DEOH, 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). In any event, the appellant’s claim that the agency 

violated the DEOH is not cognizable under VEOA. To be entitled to relief under 

VEOA, an appellant must show by a preponderance of the evidence that the 

agency violated his rights under a statute or regulation relating to veterans’ 

preference. Beyers v. Department of State, 120 M.S.P.R. 573, ¶ 6, aff’d,

593 F. App’x 980 (Fed. Cir. 2014). The DEOH does not constitute such a statute 

or regulation, and therefore cannot support a claim for corrective action under 

VEOA. Cf. Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 9 

(2012) (finding that, to the extent the appellant alleged that the agency violated 

OPM’s VetGuide, he failed to nonfrivolously allege a violation of statute or 

regulation relating to veterans’ preference); Coats v. U.S. Postal Service, 

 

administrative judge’s finding that the agency was not bound by the requirements of 

5 U.S.C. § 3311(2), 5 U.S.C. § 3318, or 5 C.F.R. § 302.302(d) when filling the Contract 

Specialist position through the EHA. 
6

111 M.S.P.R. 268, ¶ 14 (2009) (finding that a veterans’ preference provision of a 

Postal Service handbook was not a “statute or regulation” relating to veterans’ 

preference under VEOA). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 
7

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board