UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KENNETH VANDERFORD,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBERS

SF-3330-14-0556-I-1

SF-300A-15-0006-I-1

DATE: August 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kenneth Vanderford, San Diego, California, pro se.

Eric LaZare, Esquire, San Diego, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions, which

denied his request for corrective action under the Veterans Employment 

Opportunities Act of 1998 (VEOA) and dismissed his employment practices 

appeal for lack of jurisdiction. We have granted the appellant’s request to JOIN 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

these appeals because we have determined that it will expedite processing of the 

cases and will not adversely affect the parties’ interests. 5 C.F.R. § 1201.36.

¶2 Generally, we grant petitions such as these 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 erroneous application of 

the law to the facts of the case; the 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 these appeals, and based on the 

following points and authorities, we conclude that the petitioner has not 

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

Therefore, we DENY the petitions for review and AFFIRM the initial decisions, 

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

BACKGROUND

¶3 The appellant is a veteran entitled to compensation for a service-connected 

disability rated at 30% or more. Kenneth Vanderford v. Department of Veterans 

Affairs, MSPB Docket No. SF-3330-14-0556-I-1, Initial Appeal File (3330 IAF), 

Tab 10, Exhibit A at 11. He timely applied for the position of Housekeeping Aid, 

WG-1, advertised by the agency on USAJOBS. Id. at 6. The announcement 

indicated that two vacancies would be filled and that the positions were 

“restricted to preference eligible veterans ONLY.” Id. at 1. The agency prepared 

two certificates of eligibles, a competitive and a noncompetitive certificate. 3330 

IAF, Tab 7 at 18-22, 24-28. The names of nine candidates appeared on each 

certificate, and the appellant’s name was on both. The selecting official chose a 
3

preference-eligible veteran from each certificate. Id. at 19, 25. The appellant

was notified that he was not selected. 3330 IAF, Tab 10, Exhibit C.

¶4 The appellant challenged his nonselection by filing a complaint with the 

Department of Labor (DOL) in which he alleged that the agency violated his 

rights under VEOA, but, upon investigation, DOL found that no violation had 

occurred. 3330 IAF, Tab 1, Exhibit 15. On appeal to the Board, the appellant

argued that the agency violated his veterans’ preference rights and denied him the 

opportunity to compete for the positions in question for which it accepted 

applications from outside its own workforce. 3330 IAF, Tab 1. 

¶5 The administrative judge issued an order setting out the requirements for 

establishing the Board’s jurisdiction over a VEOA claim alleging a violation of 

rights under any statute or regulation relating to veterans’ preference, 5 U.S.C. 

§ 3330a(a)(1)(A), and a VEOA claim alleging denial of a right to compete under 

5 U.S.C. § 3304(f)(1). 3330 IAF, Tab 9. In response, the appellant argued that 

the selecting official’s decision to make his selections based on candidates’ 

résumés rather than by conducting interviews violated his veterans’ preference 

rights. 3330 IAF, Tab 10. He also claimed that, based on his service-connected 

disability, he should have been placed at the top of the registers. Id.

¶6 After reviewing the parties’ submissions, the administrative judge

determined that the appellant had established the Board’s jurisdiction over his 

VEOA appeal under both 5 U.S.C. §§ 3330a(a)(1)(A) and 3304(f)(1). 3330 IAF, 

Tab 19. The appellant asked to amend his appeal to include an employment 

practices claim. 3330 IAF, Tab 27. He also sought certification of an 

interlocutory appeal based on the administrative judge’s apparent failure to allow 

him to amend his appeal, and he moved that she recuse herself based on bias. 

3330 IAF, Tab 28.
4

¶7 The administrative judge docketed a separate employment practices appeal.2 

Kenneth Vanderford v. Department of Veterans Affairs, MSPB Docket No. 

SF-300A-15-0006-I-1, Initial Appeal File (300A IAF), Tab 2. During 

adjudication of the VEOA appeal, she denied the appellant’s motion for 

certification of an interlocutory appeal and his motion for her recusal. 3330 IAF, 

Tab 30.

¶8 Thereafter, the administrative judge denied the appellant’s request for 

corrective action. 3330 IAF, Tab 42, 3330 Initial Decision (ID) at 1, 8. She 

found that the agency advertised the Housekeeping Aid positions at issue 

pursuant to 5 U.S.C. § 3310, which provides that, in examinations for certain 

delineated positions in the competitive service, including Housekeeping Aids, 

competition is restricted to preference eligibles so long as they are available. 

3330 ID at 5; see 5 C.F.R. § 330.401. She found that 5 U.S.C. § 3310 is a law 

related to veterans’ preference but that the agency did not violate it because it 

restricted competition to preference eligibles and selected preference eligibles for 

both positions. 3330 ID at 5. The administrative judge then considered the 

appellant’s claim that the hiring process was an open competitive one and that, as 

a disabled preference eligible, he should have been ranked and selected ahead of 

others. She found that the evidence established that, because the positions were 

not open to all U.S. citizens, the agency did not employ an open competitive 

examination but rather a merit promotion process to which veterans’ preference 

does not apply and that, because the agency found the appellant qualified and 

referred him to the selecting official, he was not denied the right to compete. 

3330 ID at 6.

 2 As the administrative judge explained in the initial decision, she did not adjudicate the 

appellant’s employment practices claim in the context of his VEOA appeal because the 

Board cannot, in a VEOA appeal, consider claims of violations of laws other than 

veterans’ preference rules. 3330 IAF, Tab 42, 3330 Initial Decision at 3 n.1; see Ruffin 

v. Department of the Treasury, 89 M.S.P.R. 396, ¶ 12 (2001).
5

¶9 In acknowledging the appellant’s employment practices appeal, the 

administrative judge set out the requirements for establishing the Board’s 

jurisdiction over such a claim. 300A IAF, Tab 2. The appellant sought 

certification of an interlocutory appeal based on his apparent disagreement with 

the administrative judge’s rulings in his VEOA appeal, and he moved that she 

recuse herself based on bias. 300A IAF, Tab 3. In response to the administrative 

judge’s jurisdictional order, the appellant argued that the agency removed his 

name from the Office of Personnel Management (OPM) register to provide 

unauthorized preference to other preselected applicants and that it misapplied the 

merit promotion procedures to deprive him of his veterans’ preference. 

300A IAF, Tabs 4, 7. The administrative judge denied the appellant’s motions. 

300A IAF, Tab 9.

¶10 The administrative judge dismissed the appellant’s employment practices 

appeal for lack of jurisdiction. 300A IAF, Tab 10, 300A ID at 2, 7. She found 

that, even assuming that he established significant involvement by OPM in the 

agency’s action, he failed to nonfrivolously allege that the employment practice 

violated the basic requirements set forth at 5 C.F.R. § 300.103, but that instead he 

challenged alleged irregularities in the agency’s selection process, matters that 

are not otherwise appealable to the Board. 300A ID at 5-6. The administrative 

judge rejected the appellant’s allegation that the agency’s failure to afford him 

veterans’ preference constituted an employment practice, finding that its decision 

to use the merit promotion process to fill the positions in question was an 

individual agency decision that was not made pursuant to or as a part of a rule or 

practice. 300A ID at 6-7.

¶11 As to each initial decision, the appellant has filed a petition for review. 

3330 Petition for Review (PFR) File, Tab 1; 300A PFR File, Tab 1, to which the 

agency has responded in opposition, 3330 PFR File, Tab 3; 300A PFR File, 
6

Tab 3, and the appellant has replied thereto,

3 3330 PFR File, Tab 6; 

300A PFR File, Tab 5.

ANALYSIS

The administrative judge properly denied the appellant’s request for corrective 

action in his VEOA appeal.

¶12 Preference eligibles or veterans who have been separated from the armed 

services under honorable conditions after 3 years or more of active service may 

not be denied the opportunity to compete for vacant positions for which the 

agency making the announcement will accept applications from individuals 

outside its own workforce under merit promotion procedures. 5 U.S.C. 

§ 3304(f)(1). An agency uses these procedures when it announces a position to 

those already employed by the agency and those who have “status” in the 

competitive service. Veterans’ preference does not apply when positions are 

filled under merit promotion. Joseph v. Federal Trade Commission, 505 F.3d 

1380, 1382 (Fed. Cir. 2007); Perkins v. U.S. Postal Service, 100 M.S.P.R. 48, ¶ 9 

(2005); 5 C.F.R. § 335.103(b)(2), (b)(4).

¶13 An agency also may make selections under an open competitive 

examination process, which is generally used to fill vacant positions in the 

competitive service and is based on a fair test of the relative capacity and fitness 

of the persons examined for the position to be filled. Perkins, 100 M.S.P.R. 48, 

¶ 10; 5 C.F.R. § 2.1. An integral part of the open competitive examination 

process is the assignment of numerical scores, followed by the rating and ranking 

of candidates according to those scores. Dean v. Consumer Product Safety 

 3 In both cases, the appellant has filed pleadings on petition for review challenging the 

Board’s decision to move the pleading the agency filed in response to his petition for 

review to the 3330 File. 3330 PFR File, Tabs 4-5; 300A PFR File, Tab 4. That 

pleading, in fact, addressed both the VEOA appeal and the employment practices 

appeal. The Board has considered, in both cases, the appellant’s replies to the agency’s 

responses. 3330 PFR File, Tab 5; 300A PFR File, Tab 6. Any errors that may have 

appeared earlier in the Board’s e-Appeal Online Repository have been corrected.
7

Commission, 108 M.S.P.R. 137, ¶ 2 n.* (2008); see 5 U.S.C. § 3309; 

5 C.F.R. § 337.101(a). Preference-eligible veterans are entitled to five additional 

points, and disabled veterans, as well as certain relatives of disabled veterans, are 

entitle to ten additional points, which are added to their passing examination 

scores. Dean, 108 M.S.P.R. 137, ¶ 2; see 5 U.S.C. § 3309; 5 C.F.R. § 337.101(b).

¶14 On review, the appellant challenges the administrative judge’s finding that 

the agency properly announced the Housekeeping Aid positions under the merit 

promotion process and reasserts that the agency thereby violated his rights under 

VEOA. 3330 PFR File, Tab 1 at 8-12; 3330 ID at 5. However, the vacancy 

announcement does not reflect that the agency was filling the WG-1

Housekeeping Aid positions under the competitive examining process. Although 

the appellant correctly notes that the “Key Requirements” section of the 

announcement provides that the applicant must be a U.S. citizen, 3330 IAF, Tab 7 

at 31, that provision does not mean that any U.S. citizen may apply. As noted, 

consistent with 5 U.S.C. § 3310, the position was restricted to preference-eligible 

veterans only. Id. at 30. Furthermore, nothing in the record shows that the 

agency assigned numerical scores to applicants and rated and ranked them based 

on those scores. 3330 IAF, Tab 7 at 19-21, 25-28. In fact, both certificates of 

eligibles specifically state: “Vet points used: No” and “Priority Order Used: 

None.” Id. at 18, 24. Consequently, we discern no error in the administrative 

judge’s finding that the agency used the merit promotion process to select the best 

qualified candidates for the Housekeeping Aid positions. 4

 Joseph, 505 F.3d at 

 4 In reaching this finding, the administrative judge considered declarations submitted 

under penalty of perjury by a Supervisory HR Specialist of the agency familiar with the 

hiring process and the selecting official to the effect that the vacancy announcement for 

Housekeeping Aid was issued under the agency’s merit promotion process. 3330 IAF, 

Tabs 33, 38; 3330 ID at 6. Although the appellant challenges the administrative judge’s 

decision to afford weight to these declarations on the basis that the declarants provided 

no testimony, 3330 PFR File, Tab 1 at 11-12, it was the appellant’s decision to 

withdraw his request for a hearing and to proceed on the written record, 3330 IAF, Tab 

36. Under the circumstances, the appellant has provided no valid basis upon which to 

challenge the administrative judge’s consideration of this evidence. Borninkhof v. 
8

1389 (finding that an agency has the discretion to fill a vacant position by any 

authorized method); Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 

208, ¶ 10 (2001) (same).

¶15 As noted, veterans’ preference points do not apply to the merit promotion 

process, which instead gives veterans the “opportunity to compete” for vacancies 

for which an agency will accept applications from outside its workforce. 

5 U.S.C. § 3304(f)(1); Joseph, 505 F.3d at 1381-82. Here, the appellant’s name 

was among those forwarded to the selecting official for consideration. 3330 IAF, 

Tab 7 at 21, 27. Thus, we find that the appellant was clearly allowed to compete 

for the position. Our finding is unaffected by the fact that the selecting official 

exercised his discretion not to interview any of the candidates but rather to make 

his decision based upon a review of their résumés. In sum, the appellant has 

failed to show that the administrative judge erred in finding that he did not 

demonstrate a violation of his rights under VEOA in connection with these

selections. 5

 

Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (assessment of the probative value 

of hearsay evidence necessarily depends on the circumstances of each case).

5 We acknowledge, but reject, the appellant’s claim that, in an earlier order, the 

administrative judge found that the selections were not made through merit promotion

and that the law of the case doctrine precluded her from reaching a contrary conclusion 

in the initial decision. 3330 PFR File, Tab 1 at 7. The law of the case doctrine 

provides that a decision on an issue of law made at one stage of a proceeding becomes a 

binding precedent to be followed in successive stages of the same litigation. Pawn v. 

Department of Agriculture, 90 M.S.P.R. 473, ¶ 15 (2001). In the order to which the 

appellant refers, the administrative judge set forth the jurisdictional requirements for a 

VEOA appeal and, at that early stage of the proceedings, indicated that the agency had 

not yet shown that the vacancy announcement was issued under the merit promotion 

process. 3330 IAF, Tab 19. The appellant has not demonstrated, as he suggests, that, 

in that order, the administrative judge decided “by necessary implication” that the 

selections were not made through merit promotion. The appellant has provided no

support for his position that the law of the case doctrine applies to such statements 

made by the trier of the fact during adjudication and prior to issuance of the decision, 

and we are not aware of any such support.
9

¶16 The appellant urges on review that the administrative judge abused her 

authority by attempting to “lure [[him] into an unnecessary and otherwise 

unlawful hearing.” 3330 PFR File, Tab 1 at 10. The record reflects that the 

appellant initially requested a hearing, 3330 IAF, Tab 1 at 1, that the 

administrative judge scheduled it, 3330 IAF, Tab 20, but that, subsequently, the 

appellant withdrew his request, 3330 IAF, Tab 36. The administrative judge then 

set a date for the close of the record. 3330 IAF, Tab 37. The appellant has not 

shown that the administrative judge abused her discretion in controlling the 

proceedings by scheduling the hearing, and then canceling it at the appellant’s 

request. 6

 See 5 C.F.R. § 1201.41(a), (b).

The administrative judge correctly dismissed the appellant’s employment 

practices appeal for lack of jurisdiction.

¶17 Pursuant to 5 C.F.R. § 300.104(a), the Board has jurisdiction to hear an 

employment practices claim if: (1) the appeal concerns an employment practice 

in which OPM is involved in administering; and (2) the appellant nonfrivolously 

alleges that the employment practice violated one of the “basic requirements” set 

forth at 5 C.F.R. § 300.103. Burroughs v. Department of the Army, 116 M.S.P.R. 

292, ¶ 15 (2011). Those requirements consist of a job analysis to identify the 

basic duties and responsibilities, knowledge, skills, and abilities to perform them, 

and the factors that are important in evaluating candidates; relevance between 

performance in the position and the employment practice used; and equal 

employment opportunity with no prohibited forms of discrimination. 5 C.F.R. 

§ 300.103(a)-(c). An agency’s misapplication of a valid OPM requirement may 

constitute an employment practice, but an individual agency action or decision 

that is not a rule or practice of some kind does not qualify as an employment 

 6 With his petition, the appellant has submitted four “true and correct excerpts” of 

documents submitted or issued during the proceeding below. 3330 PFR File, Tab 1 at 

13, 15-32; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) 

(evidence that is already a part of the record is not new). Therefore, we have not 

considered these attachments to the appellant’s petition for review.
10

practice. Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 403, ¶ 7 

(2010).

¶18 As noted, the administrative judge found that the appellant failed to 

nonfrivolously allege that either the agency’s failure to advertise the 

Housekeeping Aid positions by use of the open competitive process, or the 

selecting official’s decision not to interview candidates, demonstrated a violation 

of the basic requirements set forth in OPM’s regulations. 300A ID at 5-7. The 

appellant generally challenges these findings on review, 300A PFR File, Tab 1 at 

5-6, but he has not established that they were made in error. Rather, the record 

supports the administrative judge’s finding that the appellant’s challenges are to 

what he perceives as irregularities in the selection process. 300A ID at 6; see 

Banks v. Department of Agriculture, 59 M.S.P.R. 157, 159-60 (1993), aff’d, 

26 F.3d 140 (Fed. Cir. 1994) (Table). However, it is well established that 

agencies have discretion to fill vacancies by any authorized method. Phillips v. 

Department of the Navy, 110 M.S.P.R. 184, ¶ 6 (2008).

¶19 On review, the appellant appears to challenge certain of the rulings the 

administrative judge made, or failed to make, during adjudication of the VEOA 

appeal, arguing that they demonstrated bias. 300A PFR File, Tab 1 at 8-9. To the 

extent that such a claim is cognizable in the appellant’s petition for review of this 

employment practices appeal, it is well settled that a party claiming bias must 

show that the administrative judge engaged in extrajudicial conduct, not conduct 

arising in the administrative proceeding. O’Neill v. Office of Personnel 

Management, 102 M.S.P.R. 298, ¶ 9 (2006); cf. Caracciolo v. Department of the 

Treasury, 105 M.S.P.R. 663, ¶ 14 (2007) (finding that an appellant’s 

disagreement with an administrative judge’s rulings in an earlier appeal is 

insufficient to establish bias).

¶20 Finally, the appellant appears to challenge the administrative judge’s 

acknowledgment order of October 2, 2014, and her statement therein regarding 

the close of the record. 300A PFR File, Tab 1 at 9-10; 300A IAF, Tab 2. The 
11

appellant argues that, based on that order, his December 1, 2014 submission 

“should be fully and properly considered.” 300A PFR File, Tab 1 at 10. In fact, 

the administrative judge specifically stated in the initial decision that she did 

consider that submission. 300A ID at 2 n.1. Therefore, to the extent the 

appellant argues that the administrative judge committed adjudicatory error, he 

has not established that claim. 7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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 United States 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 United 

 7 With his petition in the employment practices appeal, the appellant has provided what 

he describes as “true and correct excerpts” of documents submitted or issued during the 

proceeding below. 300A PFR File, Tab 1 at 11, 19-25. As noted, evidence that is 

already a part of the record is not new. Meier, 3 M.S.P.R. at 256. Therefore, we have 

not considered these attachments.
12

States 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 your appeal to 

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

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

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