UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DION TAYLOR,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-3330-14-0088-I-1

DATE: October 20, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Dion Taylor, Lake City, Florida, pro se.

Corey J. Thompson, Gainesville, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice 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 of 1998 (VEOA). Generally, we grant petitions such as this 

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

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 this 

appeal, 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 

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).

¶2 The appellant held a WG-09 Carpenter position at the agency’s Gainesville

(Florida) Veterans Affairs (VA) Medical Center. Initial Appeal File (IAF), Tab 1 

at 9. He applied for a WS-09 Maintenance Mechanic Supervisor position at the 

agency’s Gainesville VA Medical Center, as advertised under job announcement 

number GF-13-RSe-954350. IAF, Tab 4, Subtab 2e at 1. The job announcement 

stated that the position was only open to current employees of the North 

Florida/South Georgia Health System. Id. The job announcement indicated that 

eligible veterans should claim preference on the required Occupational 

Questionnaire and provide a copy of their DD214 forms. Id. at 3. The agency 

referred the appellant and three other candidates to a scoring panel that 

interviewed them, but the agency ultimately did not select the appellant for the 

position. IAF, Tab 4, Subtab 2c at 1-2, Subtab 2d. The appellant thereafter filed 

a complaint with the Department of Labor (DOL) regarding his nonselection. 

IAF, Tab 1 at 10-13. The DOL notified the appellant that it had completed its 

investigation and concluded that veterans’ preferences rules did not apply because 

the agency conducted the selection process under merit promotion procedures. 
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Id. at 7-8. The DOL informed him of his right to appeal its decision to the Board. 

Id.

¶3 The appellant filed a Board appeal and disputed whether the position was 

filled under merit promotion procedures, arguing that the job announcement did 

not state that it would operate as a merit promotion. Id. at 3. The agency 

responded that it was not required to follow preference-related requirements 

because it filled the position under merit promotion procedures, and thus 

veterans’ preference provisions were not applicable. IAF, Tab 4, Subtab 1. In his 

summary of a prehearing conference, the administrative judge determined that the 

appellant established Board jurisdiction over his appeal pursuant to 5 U.S.C. 

§ 3330a(d)(1) by showing that he exhausted his remedy with the DOL and by 

making nonfrivolous allegations that he was a preference eligible within the 

meaning of VEOA, the agency violated his rights under a statute or regulation 

relating to veterans’ preference, and the action took place on or after October 30, 

1998 (the enactment date of VEOA). IAF, Tab 7 at 1-2; see Goldberg v. 

Department of Homeland Security, 99 M.S.P.R. 660, ¶ 8 (2005). The 

administrative judge also informed the appellant that veterans’ preference rules 

do not apply to a merit promotion action and he must prove by preponderant 

evidence that the agency violated his rights with respect to a statute or regulation 

related to veterans’ preference in order to be entitled to relief under VEOA. IAF, 

Tab 7 at 2-3. 

¶4 The appellant submitted as hearing exhibits three agency job 

announcements for comparison with the job announcement at issue. IAF, Tab 8. 

However, the agency’s witness, a Section Chief for Recruitment/Placement, 

testified that the job announcement at issue was a merit promotion announcement 

open only to current employees. She further testified that the language 

concerning veterans’ preference in the job announcement for the mechanic 

position was not placed there by the agency but was part of the USAJOBS 

template. Hearing CD (32:10-34:20). She also testified that the required 
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documents section of the job announcement, which was under the agency’s 

control, did not require any veterans’ preference documents. Id. The appellant 

did not dispute that the selection process was restricted to current agency 

employees within the North Florida/South Georgia Veterans’ Health System and 

presented no evidence that the agency considered external candidates for the 

position. After holding the requested hearing, the administrative judge denied the 

appellant’s request for corrective action. IAF, Tab 9, Initial Decision (ID) at 1, 5. 

The administrative judge considered the job vacancy announcement, the 

appellant’s hearing exhibits and testimony, the testimony of the agency’s witness, 

and both parties’ arguments in concluding that the appellant failed to establish 

that the agency violated any right under a statute or regulation related to veterans’ 

preference. ID at 3-4.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has not filed a response.

¶6 To be entitled to relief under VEOA, the appellant must prove by 

preponderant evidence that the agency’s selection violated one or more of his 

statutory or regulatory veterans’ preference rights. Dale v. Department of 

Veterans Affairs, 102 M.S.P.R. 646, ¶ 10 (2006). An appellant is not entitled to 

veterans’ preference points under merit promotion procedures. Dean v. Consumer 

Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008). In his petition for

review, the appellant reiterates his argument from below that the job 

announcement did not state that it was for a merit promotion. PFR File, Tab 1 

at 3. The administrative judge properly considered the appellant’s argument 

based on the statements in the job announcement. ID at 3-4. The appellant has 

not identified any error in the administrative judge’s explained finding that the 

position was filled through merit promotion procedures for the reasons stated in 

the initial decision. Based on our review of the record in this matter, we find no 

reason to disturb the administrative judge’s finding that the agency did not violate 

any right under a statute or regulation related to veterans’ preference by not 
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selecting the appellant for the mechanic position. See Crosby v. U.S. Postal 

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the 

administrative judge’s findings where the administrative judge considered the 

evidence as a whole, drew appropriate inferences, and made reasoned 

conclusions).

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 

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.
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If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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