UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EARNEST C. ELLIS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-3330-14-0748-I-1

DATE: December 23, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Earnest C. Ellis, Antioch, Tennessee, pro se.

Alan E. Foster, Esquire, Nashville, Tennessee, 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 

dismissed his request for corrective action under the Veterans Employment 

Opportunities Act of 1988 (VEOA) for failure to state a claim upon which relief 

may be granted. Generally, we grant petitions such as this one only when: 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency issued a vacancy announcement under merit promotion 

procedures for a GS-11 Supervisory Diagnostic Radiologic Technologist position

at the Tennessee Valley Healthcare System (TVHS).

2 Initial Appeal File (IAF), 

Tab 11, Subtab 2l. The vacancy announcement indicated that it was open only to 

current TVHS employees. Id. at 1-4. The appellant, a preference-eligible veteran

employed as a GS-8 Diagnostic Radiologic Technologist with the TVHS, applied

and was considered for the position, but the agency ultimately selected another 

applicant. IAF, Tab 1 at 1, Tab 2 at 2 (Standard Form 50), Tab 11, Subtabs

2d-2k.

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

of the agency or by an applicant already employed in the competitive service. See

5 C.F.R. § 335.103(b)(1); see Joseph v. Federal Trade Commission, 505 F.3d 1380, 

1382 (Fed. Cir. 2007).
3

¶3 The appellant challenged his nonselection to the Department of Labor 

(DOL) alleging a violation of his veterans’ preference rights under VEOA and 

employment discrimination under the Uniformed Services Employment and 

Reemployment Rights Act of 1994 (USERRA). 3

 IAF, Tab 1 at 17-19. The 

appellant explained that he had been passed over for a nonveteran with no 

supervisory experience and that the selection panel had repeatedly passed over 

veterans for less or equally experienced nonveterans. Id. at 19. DOL closed the 

complaint effective March 18, 2014, without taking any corrective action because 

the vacancy announcement had only been open to current agency employees and 

therefore VEOA did not apply. See id. at 7.

¶4 The appellant then filed an appeal with the Board on June 4, 2014, arguing 

that he was the most qualified candidate and that he had been improperly passed 

over because the selection panel had been biased against him and had failed to 

“operat[e] within the 1st and 2nd Merit Systems Principles.” Id. at 5. He asserted

that, although veterans’ preference was inapplicable to the position he applied 

for, he should have been selected because he is a veteran and was the most 

qualified candidate for the position. Id. 

¶5 The administrative judge issued orders on timeliness and on the burdens of 

proof to establish jurisdiction under VEOA, and the appellant responded only to 

the order on timeliness. IAF, Tabs 4-5, 8. Without holding a hearing, the 

administrative judge dismissed the appellant’s request for corrective action for 

failure to state a claim upon which relief could be granted. IAF, Tab 12, Initial 

Decision (ID). Specifically, he found that the vacancy announcement was open 

 3 Although the appellant alleged a USERRA violation in his complaint to DOL, IAF, 

Tab 1 at 18, he did not mention it anywhere in his appeal to the Board or on petition for 

review, see IAF, Tabs 1, 5; Petition for Review (PFR) File, Tabs 1-2, 5. Accordingly, 

we find that the appellant abandoned any USERRA claim.
4

only to current TVHS employees, and, therefore, veterans’ preferences rights did

not apply.

4

 ID at 3-4. 

¶6 The appellant has filed a petition for review, in which he asserts that his 

appeal was not based on a violation of his veterans’ preference rights but rather 

on the agency’s prohibited personnel practices, violations of merit systems 

principles, mismanagement of funds, and abuse of authority. PFR File, Tab 1 at 

4. The agency has responded in opposition and the appellant has replied to the 

agency’s response. PFR File, Tabs 4-5. 

¶7 To the extent that the appellant’s claim is based on an alleged violation of 

his veterans’ preference rights under VEOA, we agree with the administrative 

judge that the appellant has failed to state a claim upon which relief may be 

granted. See ID at 3-4. The record reflects, and the parties do not dispute, that 

the appellant applied under a merit promotion vacancy announcement to which 

only current TVHS employees could apply.

5 See IAF, Tab 1, Tab 11, Subtab 1 at 

1, Subtab 2l; see also PFR File, Tabs 1, 4-5. It is well-settled that an employee is 

not entitled to veterans’ preference in the merit promotion process. Perkins v. 

U.S. Postal Service, 100 M.S.P.R. 48, ¶ 9 (2005). Accordingly, as the appellant 

has acknowledged, he is not entitled to veterans’ preference under the 

circumstances present here. See id.; see also PFR File, Tab 1 at 4.

¶8 Insofar as the appellant seeks to challenge the agency’s alleged prohibited 

personnel practices, violations of the merit systems principles, gross 

mismanagement, and abuse of authority, the Board lacks jurisdiction over such 

 4 Because the appeal was dismissed for failure to state a claim, the administrative judge 

did not reach the timeliness issue. See ID at 2 n.1.

5 Although the vacancy announcement indicated in one place that all United States 

citizens may apply, it specified that the position was “Full Time – Agency Employees 

Only” in the “position information” field and indicated under “key requirements” that 

the applicant must be a current TVHS employee. IAF, Tab 11, Subtab 2l at 3-4. 

Further, the appellant does not challenge the finding by DOL or the administrative 

judge that the position was only open to current TVHS employees. See PFR File, Tab 1 

at 4; see also IAF, Tab 1 at 7; ID at 2, 4. 
5

allegations. See PFR File, Tab 1 at 4, Tab 5 at 4-5. The merit system principles 

are not themselves a source of Board jurisdiction, nor is a nonselection an 

otherwise appealable action with respect to which the appellant could claim that 

the agency’s alleged violation of merit system principles made its decision “not in 

accordance with law.” Davis v. Department of Defense, 105 M.S.P.R. 604, ¶ 15

(2007); see 5 U.S.C. § 7701(c)(2)(C) (an otherwise appealable action cannot be 

sustained if the appellant shows that it is “not in accordance with law”).

Similarly, absent an otherwise appealable action, the Board cannot consider the 

appellant’s claim that the agency committed various prohibited personnel 

practices. Davis, 105 M.S.P.R. 604, ¶ 16. Finally, to the extent that the appellant 

seeks to base his claim on disclosures of gross mismanagement or abuse of 

authority, the appellant must first seek corrective action from the Office of 

Special Counsel (OSC). Benton-Flores v. Department of Defense, 121 M.S.P.R. 

428, ¶ 4 (2014). Here, the appellant has presented no evidence of exhaustion 

before OSC; accordingly, the Board lacks jurisdiction to hear his claims regarding 

abuse of authority or gross mismanagement. See id.

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 
6

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.

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