United States Court of Appeals for the Federal Circuit 

2007-3073 

DEVON JOSEPH, 

Petitioner, 

v. 

FEDERAL TRADE COMMISSION, 

Respondent. 

Doris G. Traub, Traub & Traub, P.C., of New York, New York, argued for 

petitioner. 

John C. O’Quinn, Deputy Associate Attorney General, Civil Division, Appellate 

Staff, United States Department of Justice, of Washington, DC, argued for respondent. 

With him on the brief were Peter D. Keisler, Acting Attorney General, and Thomas M. 

Bondy, Attorney. 

Appealed from: United States Merit Systems Protection Board 
United States Court of Appeals for the Federal Circuit 

 

2007-3073 

DEVON JOSEPH, 

 Petitioner, 

v. 

FEDERAL TRADE COMMISSION, 

 Respondent. 

______________________________ 

DECIDED: NOVEMBER 5, 2007 

______________________________ 

Before NEWMAN, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit 

Judge. 

FRIEDMAN, Senior Circuit Judge. 

An unsuccessful applicant for a specific federal position contends that the 

agency’s procedure in filling the vacancy denied him his veterans’ preference rights. 

The Merit Systems Protection Board (“Board”) rejected this contention, as do we. 

I 

A. Federal agencies generally use two types of selection to fill vacancies: 

(1) the open “competitive examination” process and (2) the “merit promotion” process. 

See 5 C.F.R. §§ 330.101, 332.101, 335.103 (2007). 

The open competitive examination generally is used for employees seeking to 

join the competitive service and often is used for reviewing applicants outside the 

agency. Under this process, applicants for employment are given a numerical rating 
and placed on a list of qualified personnel for appointment. 5 C.F.R. § 2.1. The 

applicants with the three highest ratings are submitted to the appointing official, who is 

ordinarily required to select one of them. 5 U.S.C. § 3318(a) (1978). 

Veterans seeking such employment are given special advantages. Five or ten 

points are added to their competitive score to determine their final rating. See 5 U.S.C. 

§ 3309; 5 C.F.R. § 337.101(b). They are ranked ahead of others with the same score. 

See 5 U.S.C. § 3313; 5 C.F.R. § 332.401. If a veteran has the highest numerical rating 

on the list, the agency must appoint that individual, unless the agency seeks and 

receives from the Office of Personnel Management (“OPM”) written authority to appoint 

someone ranking below the veteran. 5 U.S.C. § 3318(b); see Scharein v. Dep’t of 

Navy, 91 M.S.P.R. 329, 334 (2002). 

The merit promotion process is used when the position is to be filled by an 

employee of the agency or by an applicant from outside the agency who has “status” in 

the competitive service. See 5 C.F.R. § 335.103(b)(1); see also Perkins v. United 

States Postal Serv., 100 M.S.P.R. 48, 51 (2005). 

Veterans’ point preferences under the competitive appointment process do not 

apply in the merit promotion process. Perkins, 100 M.S.P.R. at 51. Congress has 

provided, however, that “for all merit promotion announcements . . . veterans . . . are 

eligible to apply.” 5 U.S.C. §§ 3304(f)(3) – (4). Veterans “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). Congress further provided, 

2007-3073 2
however, that the latter provision does not “confer an entitlement to veterans’ 

preference that is not otherwise required by law.” 5 U.S.C. § 3304(f)(3). 

B. In 2004 the Federal Trade Commission (“Commission”) announced that it 

would appoint a paralegal and invited applications for the position. Joseph v. Fed. 

Trade Comm’n, 103 M.S.P.R. 684, 685-86 (2006). The announcement stated that the 

Commission could consider applicants under both merit promotion and open 

competitive procedures if they either submitted two applications or indicated they 

wanted to be considered under both procedures. Id. at 686. 

The petitioner Devon Joseph, a veteran employed by another federal agency, 

applied for the position and requested that he be considered under both procedures. Id. 

The Commission evaluated and rated all of the applicants under both procedures. Id. 

The Commission then prepared a merit promotion list that alphabetically listed the four 

applicants with the highest numerical ratings. Id. Joseph and Cheryl Thomas, a 

Commission employee whom the agency ultimately selected for the position, were 

among the four. Id. The Commission also listed the three top applicants rated under 

the competitive process. Id. Joseph was ranked first on that list — a ranking that 

reflected a ten point veterans’ preference. Id. Ms. Thomas was not listed on the 

competitive list. Id. 

The Commission decided to make the appointment from the merit promotion list. 

It interviewed the four candidates on that list, including Joseph, and selected Ms. 

Thomas, a non-veteran. Id.

After unsuccessfully challenging his non-appointment before the Department of 

Labor, pursuant to 5 U.S.C. § 3330(a)(1), as violating his veterans’ preference rights, 

2007-3073 3
Joseph appealed his non-selection to the Board. Because he was a Board employee, 

the Board referred the complaint to the National Labor Relations Board for adjudication 

by one of that agency’s administrative law judges. In his initial decision the 

administrative law judge sustained Joseph’s contention and ordered his selection. The 

Board, however, reversed. The Board held that Joseph 

received veterans’ preference in the competitive examination 

that the agency used to assess external candidates for the 

Paralegal Specialist position. The appellant did not receive 

veterans’ preference in the concurrent assessment that the 

agency conducted under merit promotion procedures, but as 

explained above, an individual is not entitled to veterans’ 

preference under merit promotion procedures. See Perkins, 

100 M.S.P.R. 48, ¶ 9. The ALJ committed a clear error of 

law in concluding that the appellant’s veterans’ preference 

rights were violated. 

Id. at 688. 

II 

Joseph does not challenge the Commission’s simultaneous use of the open 

competition examination process (in which his veterans’ ten-point preference was 

recognized) and the merit promotion process (in which that preference was not 

recognized) to fill a single position. He challenges only the way the Commission used 

the two processes to make its selection. He contends that having conducted the open 

competition process, in which he was at the top of the list after receiving a ten point 

veterans’ preference, the Commission could not then make its selection from the merit 

process list, which did not reflect his veterans’ preference. Such selection, he contends, 

denied him his preference rights. 

The statutory and regulatory provisions defining veterans’ rights in seeking and 

obtaining federal employment require rejection of this contention. 

2007-3073 4
The addition of points to a veteran’s score because of his status applies only in 

the open competition examination process and not in the merit appointment process. 

The Commission fully recognized Joseph’s veterans’ preference in the competitive 

examination process when it added ten-points to his score because he was a disabled 

veteran. If the Commission had made its selection by that process, presumably it would 

have selected Joseph, unless it had obtained OPM authority to choose someone else. 

The Commission, however, made the appointment not under that process but 

under the merit promotion process, in which the requirement to appoint a veteran who is 

at the top of the list did not apply. The question is whether the provisions governing 

veterans’ rights under merit promotion procedures precluded the Commission from 

doing so. The answer is no. 

Unlike the statutes governing open competition applicants, under which a 

veteran’s numerical rating is increased because of his status and a veteran ordinarily is 

appointed if he is at the top of the list, Congress adopted a different approach in dealing 

with veterans and merit promotion. It guaranteed veterans only a right to apply and an 

opportunity to compete for such positions. It said nothing about the basis upon which 

the agency could make its selection. 

The critical statutory provision is 5 U.S.C. § 3304(f)(1), which was added to the 

veterans statutes by the Veterans Employment Opportunity Act of 1998 (“VEOA”). It 

provides that “all merit promotion announcements . . . shall indicate that . . . veterans . . 

. are eligible to apply . . .” and that specified categories of veterans 

may not be denied the opportunity to compete for vacant 

positions for which the agency . . . will accept applications 

from individuals outside its own workforce under merit 

promotion procedures. 

2007-3073 5
All that this latter provision entitles veterans to is “the opportunity to compete for 

vacant positions” to be filled “under merit promotion procedures.” Indeed, the same 

statute also provides that this “opportunity to compete” provision “shall not be construed 

to confer an entitlement to veterans’ preference that is not otherwise required by law.” 

As the Board has correctly pointed out, “an employee is not entitled to veterans’ 

preference in the merit promotion process.” Perkins, 100 M.S.P.R. at 51. 

Joseph was given a full “opportunity to compete” in the merit selection process 

by which the appointment was made. He filed his application, and he was one of four 

applicants who qualified for final consideration. He, like the other three in that group, 

was interviewed before the final selection was made. The fact that he was not selected 

does not mean that he did not have a full “opportunity to compete”; it means only that, 

after such competition, he was not selected. 

Joseph received his ten point veterans’ preference under the competitive 

examination procedure, but the Commission then decided to make the appointment 

under the alternative merit promotion procedure. We know of no statute or regulatory 

provision that required the Commission, once it undertook to inaugurate the selection 

process by following the alternative procedure, to limit itself to the competitive 

examination process in making its final selection. As the Board pointed out in this case, 

“[a]n agency has the discretion to fill a vacant position by any authorized method. 5 

C.F.R. § 330.101; Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 10 

(2001).” Joseph, 103 M.S.P.R. at 689. Joseph’s argument would preclude the agency 

from using the selection process that it deems most suitable for filling the particular 

vacancy. 

2007-3073 6
This court rejected a comparable attempt to invalidate a non-appointment 

because it denied veterans’ preference rights in Abell v. Department of the Navy, 343 

F.3d 1378 (Fed. Cir. 2003). There the Navy announced three vacancies for the same 

position and that it would consider applications under both merit promotion and 

competitive examination procedures. Id. at 1380. Abell, a veteran, applied for any one 

of those positions. Id. The Navy appointed other applicants to two of the positions — 

one under the merit promotion process and the other under the competitive examination 

process. Id. at 1381. It then cancelled the third vacancy. Id. 

Abell challenged the Navy’s cancellation of the third vacancy as violating his 

veterans’ preference rights because such action denied him the opportunity to compete 

for that position. Id. at 1381-82. We sustained the Navy’s action. We “h[e]ld that Mr. 

Abell was not denied his opportunity to compete by virtue of the Navy’s decision to 

cancel the vacancy announcement.” Id. at 1384. We explained: 

The VEOA required that the Navy give Mr. Abell the 

opportunity to compete for the three vacant positions; the 

VEOA did not require that the Navy give Mr. Abell a position 

if he scored the most points. The Navy reasonably relied on 

its interview process to determine that Mr. Abell did not meet 

the qualifications required for the position. In short, Mr. Abell 

had the opportunity to compete and did compete; the Navy’s 

decision not to fill the position did not violate Mr. Abell’s 

rights under the VEOA. 

Id. at 1384-85. 

Similar reasoning applies in this case and requires the same conclusion. 

Although the issue in Abell was the Navy’s right to cancel the third vacancy after filling 

the other two, there are significant similarities between that case and the present one. 

In both cases the agency conducted simultaneous parallel procedures under the 

2007-3073 7
2007-3073 8

competitive examination and merit promotion processes to fill the same position. In 

both cases the alleged violation of the veteran’s preference stems from the agency’s 

failure to appoint the veteran to a position he sought — in Abell by canceling the 

position, and in the present case by making the selection under the merit promotion 

process, in which someone other than the veteran was selected. In both cases the 

dispositive issue is whether the employing agency denied the applicant the opportunity 

to compete. Just as the Navy did not deny such an opportunity when it cancelled the 

third vacancy, so the Commission also did not deny the opportunity to compete by 

selecting another applicant under its merit promotion process. 

By changing a few words to reflect the different facts in the present case, the 

following statement from the Abell opinion quoted above is equally applicable in the 

present case: 

The [Commission] gave Mr. [Joseph] the opportunity to 

compete for the . . . vacant position[;] the VEOA did not 

require that the [Commission] give Mr. [Joseph] a position if 

he scored the most points. . . . In short, Mr. [Joseph] had the 

opportunity to compete and did compete; the [Commission’s] 

decision . . . to fill the position [through the merit system 

rather than through the competitive process] did not violate 

Mr. [Joseph’s] rights under the VEOA. 

Id. at 1384-85. 

CONCLUSION 

The decision of the Merit Systems Protection Board is 

AFFIRMED.