UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ERIC WILLIAMS,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-3330-18-0427-I-1

DATE: August 26, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

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

Katherine Largo Yourth, Esquire, Richmond, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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) of 1998. On petition for review, the appellant argues 

that he is entitled to corrective action because he proved that the agency violated 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

his veterans’ preference rights, under 5 U.S.C. §§ 3311(2) and 3319,

2

5 C.F.R. 

§ 302.302(d), and another provision that appears to be from the Office of 

Personnel Management (OPM) Delegated Examining Operations Handbook 

(DEOH),

3

by rating him ineligible based only on his occupational assessment; by 

rating him ineligible, regardless, because his response to Question #1 of the 

assessment showed that he rated himself as minimally qualified; by failing to 

place him in the highest category; and by selecting a nonveteran over him without 

following the passover procedures. Petition for Review (PFR) File, Tab 2 at 5, 9-

12. He also argues that the administrative judge was biased because he ruled for 

the agency, declined his request for a hearing, failed to issue a close of record 

order, and denied him an opportunity to respond to the agency’s evidence before 

issuing the initial decision. Id. at 6-10.

¶2 Generally, we grant petitions such as this one only in the following 

circumstances: the initial decision contains erroneous findings of material fac t; 

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 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 

 

2

The appellant argues that the agency violated the passover procedures identifi ed in 

5 U.S.C. § 3318, which apply to the traditional rating and ranking process. Here, the 

agency utilized category rating in making a selection for the position at issue. Initial 

Appeal File, Tab 5 at 49. Section 3319 sets forth the process for utilizing category 

rating, including the procedures for placing preference-eligible candidates in categories 

in accordance with their veterans’ preference and passing over preference -eligible 

candidates. 5 U.S.C. § 3319(a), (b), (c)(7). We therefore construe the appellant’s 

argument as raising a section 3319 claim.

3

See Office of Personnel Management, Delegated Examining Operations Handbook, 

chapter 5, section B at 105 (May 2007), https://www.opm.gov/policy-dataoversight/hiring-information/competitive-hiring/deo_handbook.pdf (last visited Aug.

19, 2022).
3

diligence, was not available when the record closed. 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 appellant has not

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

Therefore, we DENY the petition for review. Except as expressly MODIFIED to 

address the appellant’s claims that the administrative judge committed reversible 

procedural errors and to consider in more detail his arguments that were not 

addressed below, we AFFIRM the initial decision.

¶3 The administrative judge did not address whether the agency allowed the 

appellant to credit all of his experience when completing the assessment. Under

5 U.S.C. § 3311, a preference eligible is entitled to have a broad range of prior 

experience considered, including relevant military experience and experience 

gained “in religious, civic, welfare, service, and organizational activities.” No 

aspect of the application materials restricted the appellant from considering that 

type of experience in assessing whether he met the specialized experience 

requirement for the position and in selecting the most appropriate response to 

Question #2 of the assessment. Initial Appeal File (IAF), Tab 5 at 21, 47-48; see 

5 U.S.C. § 3311; cf. Kirkendall v. Department of the Army, 573 F.3d 1318, 

1324-25 (2009) (finding that the agency violated the veterans’ preference rights 

afforded to the preference-eligible applicant under 5 U.S.C. § 3311 by failing to 

consider his relevant military experience in determining his eligibility). Rather, 

the announcement apprised applicants that such experience would be credited. 

IAF, Tab 5 at 47-48. To the extent that the appellant did not consider those 

experiences in selecting an answer to Question #2, that error is attributable to 

him, not the agency.

¶4 Further, the appellant’s claim that the DEOH required the agency to 

consider his application attachments in determining his eligibility is without 

merit. PFR File, Tab 2 at 11-12; Initial Appeal File (IAF), Tab 8 at 4. The 

DEOH is not a statute or regulation and therefore cannot support a claim for 
4

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). Because the

appellant rated himself not minimally qualified in his assessment, he was not

entitled to be considered for the next phases of the selection process, such as 

being placed in a category in accordance with his veterans’ preference. IAF, Tab 

6, Initial Decision (ID) at 5-6; IAF, Tab 5 at 10-12, 18, 20-21, 47-48; see 

Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, 539 (2010) (observing that 

no authority requires that a preference eligible be considered at every stage of the 

selection process); Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, 

¶ 13 (2006) (explaining that VEOA does not provide that veterans will be 

considered for positions for which they are not qualified).

¶5 In addition, we agree with the administrative judge that a hearing was 

unnecessary, as the parties did not dispute the dispositive factual issues—that the 

appellant indicated in his online assessment that he lacked the specialized 

experience and/or education for the position at the advertised levels and that his 

application was automatically removed from consideration as a result. ID at 5; 

see Jarrard v. Department of Justice, 113 M.S.P.R. 502, ¶ 10 (2010) (explaining 

that the Board may decide the merits without a hearing when there is no genuine 

dispute of material fact and one party must prevail as a matter of law). However,

as correctly argued by the appellant, the administrative judge erred by failing to 

advise him that she would not be holding his requested hearing, set a date on 

which the record would close, or allow the parties to submit further argument and 

evidence on the merits of the appeal before the close of the record.

4

 See Jarrard, 

 

4

The appellant cites to Schucker v. Federal Deposit Insurance Corporation, 401 F.3d 

1347 (Fed. Cir. 2005), as support for his contention that the administrative judge 

committed reversible error in denying him an opportunity to submit rebuttal evidence . 

PFR File, Tab 2 at 9-10. In Schucker, the Federal Circuit found that the Board had a 

longstanding policy of finding that an administrative judge has committed error by 
5

113 M.S.P.R. 502, ¶ 11. Because of that error, we have considered all of the 

appellant’s submissions from below and on review, including his May 7, 2018

response that he submitted to the administrative judge after the initial decision’s 

issuance. PFR File, Tabs 2, 4; IAF, Tabs 1, 4, 8. Accordingly, the appellant has 

not shown how, under these circumstances, the administrative judge’s procedural 

errors prejudiced his substantive rights; therefore, those errors do not provide a 

basis for review. See Heckman v. Department of the Interior, 106 M.S.P.R. 210, 

¶ 13 (2007) (finding no reversible error because the appellant did not show that 

the cancellation of his requested hearing prejudiced his substantive rights under 

VEOA); see generally Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 

(1981) (finding that an administrative judge’s procedural error is of no legal 

consequence unless it is shown to have adversely affected a party’s substantive 

rights).

¶6 Finally, in making a claim of bias or prejudice against an administrative 

judge, a party must overcome the presumption of honesty and integrity that 

accompanies administrative adjudicators. Oliver v. Department of 

Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct 

during the course of a Board proceeding warrants a new adjudication only if his 

comments or actions evidence “a deep-seated favoritism or antagonism that would 

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 

555 (1994)). The appellant’s claims, which do not relate to any extrajudicial 

conduct by the administrative judge, neither overcome that presumption, nor 

establish a deep-seated favoritism or antagonism.

 

closing the record without allowing the parties an opportunity to submit rebuttal 

evidence. 401 F.3d at 1355-57. Although Schucker did not involve a VEOA appeal, 

the Board’s approach in VEOA appeals is consistent with the Federal Circuit’s holding 

in that case.
6

NOTICE OF APPEAL RIGHTS5

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 

5

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
7

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

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

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
8

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
9

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appea ls of 

competent jurisdiction.6The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, 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 

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

 

6

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
10

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board