UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 47

Docket No. DC-3330-14-1058-I-1

Michael A. Murphy Boston,

Appellant,

v.

Department of the Army,

Agency.

July 28, 2015

Michael A. Murphy Boston, Troy, Virginia, pro se.

Michael E. Hokenson, Fort Belvoir, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND 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). For the reasons set forth below, we DENY 

the petition for review and AFFIRM the initial decision. However, we MODIFY 

the initial decision to find that the agency was not required to apply Title 5 

veterans’ preference rights and the appellant was not entitled to veterans’ 

preference under the agency’s regulations.
2

BACKGROUND

¶2 The appellant, a 10-point preference-eligible veteran, was previously 

employed by the agency’s U.S. Army Intelligence and Security Command, 

National Ground Intelligence Center (NGIC) as a GG-0132-13 Intelligence 

Specialist until he resigned, effective April 7, 2012. Initial Appeal File (IAF), 

Tab 6 at 13, 23. In June or July 2014, he applied for a GG-0132-13 excepted 

service Intelligence Specialist position with NGIC. IAF, Tab 1 at 16, Tab 6 at 15. 

The vacancy announcement for the position indicated that multiple vacancies 

were available and that applications would be accepted from both internal and 

external candidates. IAF, Tab 6 at 15-16. According to the agency, it generated 

three certificates of eligible candidates: (1) status candidates (individuals with 

prior Federal service); (2) nonstatus candidates (individuals with no prior Federal 

service and no veterans’ preference eligibility); and (3) veterans’ preference 

eligible candidates. IAF, Tab 6 at 5 & nn.2, 4; id. at 34-50. The appellant was 

placed on the status candidate list and referred to the selecting official, but was 

not selected for any of the positions. IAF, Tab 6 at 5, 35. The agency hired two 

other individuals from the status candidate list and one individual from the 

veterans’ preference list. Id. at 5, 35-36, 46. 

¶3 After exhausting his administrative remedies before the U.S. Department of 

Labor (DOL), the appellant filed a Board appeal alleging that the agency’s 

decision not to select him violated his veterans’ preference rights. IAF, Tab 1

at 5, 17. In response, the agency asserted that the appellant was not entitled to 

veterans’ preference and that it had properly placed him only on the status 

candidate list in accordance with Department of Defense Instruction (DoDI) 

1400.25, which states that veterans’ preference does not apply to prior Federal 

employees. IAF, Tab 6 at 5; DoDI No. 1400.25, Volume 2005, Enclosure 2, 

¶ 15b-c (Mar. 3, 2012), available at http://www.dtic.mil/whs/directives/corres/pdf

/1400.25-V2005.pdf. The agency further asserted that the Title 5 provisions 
3

relating to veterans’ preference rights did not apply because the positions were 

filled pursuant to 10 U.S.C. § 1601. IAF, Tab 6 at 7-8.

¶4 The administrative judge found that the Board has VEOA jurisdiction over 

the appeal, but that the appellant was not entitled to his requested hearing 

because, based on the written record, there were no genuine issues of material 

fact and the appellant failed to show that the agency violated his veterans’ 

preference rights. IAF, Tab 8, Initial Decision (ID). In reaching his decision, the 

administrative judge found that, under DoDI 1400.25, the appellant, an applicant 

with prior Federal service, was properly placed on the status candidate list and 

was not entitled to veterans’ preference consideration. ID at 4-5. The 

administrative judge further found that the agency made selections from the 

status list and that the agency’s decision to fill the positions through merit 

promotion procedures rather than through the competitive process did not violate 

the appellant’s rights under VEOA because an individual is not entitled to 

veterans’ preference points under merit promotion procedures. ID at 5-6; Dean v. 

Consumer Product Safety Commission, 108 M.S.P.R. 137, ¶ 11 (2008).

¶5 The appellant has filed a petition for review1 in which he asserts that the 

initial decision and DoDI 1400.25 are inconsistent with Title 5 and Title 10 

regulations, the agency improperly failed to respond to his discovery requests, 

and the administrative judge “permitted leniency on the part of the agency” by 

allowing the agency additional time to file its response. 2

 Petition for Review 

 

1 The appellant has filed additional copies of his petition for review. Petition for 

Review (PFR) File, Tab 3. For the sake of clarity, we cite only to the initially filed 

petition. 

2 To the extent the appellant is alleging that the administrative judge was biased in 

favor of the agency, we find that he has failed to set forth any evidence or argument to 

overcome the presumption of honesty and integrity that accompanies administrative 

adjudicators. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 46 (2014). 
4

(PFR) File, Tab 1 at 3-4. The agency has filed a response in opposition, and the 

appellant has filed a reply. 3

 PFR File, Tabs 2, 5.

ANALYSIS

¶6 To establish jurisdiction over a VEOA appeal alleging a violation of 

veterans’ preference rights, an appellant must (1) show that he exhausted his 

remedy with DOL; and (2) make nonfrivolous allegations that: (i) he is a 

preference eligible within the meaning of VEOA, (ii) the action at issue took 

place on or after the date that VEOA was enacted, and (iii) the agency violated 

his rights under a statute or regulation relating to veterans’ preference. 5 U.S.C. 

§ 3330a(a)(1)(A); Jarrard v. Social Security Administration, 115 M.S.P.R. 397, 

¶ 7 (2010), aff’d, 669 F.3d 1320 (Fed. Cir. 2012). As applicable here, to be 

entitled to relief under VEOA, the appellant must prove by preponderant evidence 

that the agency violated one or more of his statutory or regulatory veterans’ 

preference rights in its selection process. Graves v. Department of Veterans 

Affairs, 114 M.S.P.R. 209, ¶ 10 (2010).

¶7 The Board has the authority to decide the merits of a VEOA appeal without 

a hearing if there is no genuine dispute of material fact and one party must 

prevail as a matter of law. Haasz v. Department of Veterans Affairs, 

 

3 After the record on review closed on April 5, 2014, the appellant filed an untimely 

reply on April 10, 2015, without showing that it was based on evidence that was not 

readily available prior to the close of the record on review. PFR File, Tabs 4-6; see

5 C.F.R. § 1201.114(k). Notwithstanding this procedural defect, we find unavailing the 

appellant’s arguments therein that 10 U.S.C. § 1601 is inapplicable to the Intelligence 

Specialist positions and that the provisions of DoDI 1400.25 are contradictory and 

ambiguous. PFR File, Tab 5 at 4-6, 8. Further, under 5 C.F.R. § 1201.114(a)(4), a 

reply is limited to the factual and legal issues raised by another party in the response to 

the petition for review and may not raise new allegations of error. Thus, we decline to 

consider the appellant’s new argument that his veterans’ preference rights were violated 

because other current and former Defense Civilian Intelligence Personnel System

employees were included on the veterans’ preference eligible list. PFR File, Tab 5 

at 7-8.
5

108 M.S.P.R. 349, ¶ 9 (2008); see 5 C.F.R. § 1208.23(b). In this case, the 

administrative judge properly found that there is no genuine dispute of material 

fact and that, although the appellant established jurisdiction over his appeal, the 

record showed that the agency did not violate his veterans’ preference rights. See

ID. However, the administrative judge improperly found that the agency only 

made selections from the status list and applied Title 5 standards relating to 

veterans’ preference rights when the agency filled the positions pursuant to its 

Title 10 hiring authority, under which it was not required to follow Title 5 

veterans’ preference rules. 4

 See ID at 5-6. Therefore, we modify the initial 

decision to find that the agency was not required to apply Title 5 veterans’ 

preference rights and that the appellant was not entitled to veterans’ preference 

rights under the agency’s regulations, which are reasonable and consistent with 

the requirement in 10 U.S.C. § 1601(a)(2) that it consider “the availability of 

preference eligibles for appointment.”

¶8 The Intelligence Specialist positions to which the appellant applied are in 

the Defense Civilian Intelligence Personnel System (DCIPS) and were filled 

under the agency’s Title 10 hiring authority. See IAF, Tab 6 at 15; DoDI 

No. 1400.25, Volume 2005, Enclosure 1, Enclosure 2, ¶ 2. Pursuant to 10 U.S.C. 

§ 1601, the Secretary of Defense may “establish, as positions in the excepted 

service, such defense intelligence positions in the Department of Defense as the 

Secretary determines necessary to carry out the intelligence functions of the 

Department” and “appoint individuals to those positions (after taking into 

consideration the availability of preference eligibles for appointment to those 

positions).” 10 U.S.C. § 1601(a)(1)-(2). The Secretary’s authority to do so 

 

4 Further, the administrative judge erred in finding that merit promotion procedures 

applied to the agency’s selections from the status list. These procedures generally are 

limited to selecting among internal candidates and thus would not apply here. See 

Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, ¶ 11 (2006), aff’d, 505 F.3d 

1380 (Fed. Cir. 2007).
6

“applies without regard to the provisions of any other law relating to the 

appointment, number, classification, or compensation of employees.” 10 U.S.C. 

§ 1601(b). 

¶9 Because Title 10 appointments are made “without regard to the provisions 

of any other law relating to the appointment . . . of employees,” the Board has 

held that Title 5 veterans’ preference rules do not apply to positions filled 

pursuant to 10 U.S.C. § 1601. See Wilks v. Department of the Army, 91 M.S.P.R. 

70, ¶¶ 8-9 (2002); see also Montee v. Department of the Army, 110 M.S.P.R. 271, 

¶ 13 (2008) (stating that 10 U.S.C. § 1601(b) arguably exempts military 

departments that are filling DCIPS positions from the requirements of 5 U.S.C. 

§ 3304); Young v. Federal Mediation & Conciliation Service, 93 M.S.P.R. 99, 

¶¶ 8-9 (2002) (appointments made “without regard to the provisions of the civil 

service laws” are not subject to the provisions of Title 5, including those relating 

to veterans’ preference), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Accordingly, 

we find that the agency was not required to apply Title 5 veterans’ preference 

rights during the selection process for the Intelligence Specialist positions. 

¶10 Though not required to apply Title 5 veterans’ preference rights, the 

agency was required to consider the “availability of preference eligibles for 

appointment” to the positions under 10 U.S.C. § 1601(a)(2). The statute’s text 

and legislative history do not define or clarify what Congress meant by requiring 

appointments to be made “after taking into consideration the availability of 

preference eligibles.” National Defense Authorization Act for Fiscal Year 1997

(NDAA), Pub. L. No. 104-201, § 1632, 110 Stat. 2422, 2746 (1996). The 

relevant language was first proposed by the Senate. See NDAA, S. 1745, 104th 

Cong. § 1132 (1996). It was subsequently adopted into the corresponding bill 

from the U.S. House of Representatives in conference. 5

 See H.R. Rep. 

 

5 A prior version of the statute, which was repealed, did not contain a reference to 

veterans’ preference. See 10 U.S.C. § 1590 (1994) (providing the Secretary of Defense 
7

No. 104-724, at 825-26 (1996) (Conf. Rep.). No reports from either the U.S. 

House of Representatives or the U.S. Senate discuss the meaning of the language. 

See H.R. Rep. No. 104-724, at 336, 825-26 (providing the text for, and generally 

discussing, amendments relating to the authority of the Secretary of Defense to 

manage civilian personnel in the Department of Defense intelligence community);

H. Comm. on National Security, H.R. Rep. No. 104-563 (1996) (containing no 

discussion of the relevant language); S. Select Comm. on Intelligence, S. Rep. 

No. 104-278 (1996) (same); S. Rep. No. 104-267 (1996) (same). 

¶11 Under 10 U.S.C. § 1613, Congress authorized the Secretary of Defense to 

prescribe regulations to carry out section 1601. DoDI 1400.25, issued pursuant to 

10 U.S.C. § 1613, addresses veterans’ preference rights and provides that the 

determination and application of veterans’ preference is not required when 

considering former DCIPS employees or candidates with prior Federal 

competitive or excepted service who have completed a probationary or trial 

period and have not been separated for cause. DoDI No. 1400.25, Volume 2005, 

¶ 8, Enclosure 2, ¶ 15b-c. DoDI 1400.25 further provides that, when filling 

positions with external applicants new to Federal service, preference-eligible 

veterans shall be granted preference in selection over nonpreference-eligible 

candidates with substantially equal qualifications. Id., Enclosure 2, ¶ 15a. We 

find that DoDI 1400.25 is reasonable and consistent with the statute to the extent 

it requires the application of veterans’ preference as a tie-breaker for DCIPS 

external new employee hiring. See Hawkins v. United States, 469 F.3d 993, 1000 

(Fed. Cir. 2006) (where a statute is silent or ambiguous on a specific issue, the 

Board must sustain the agency’s interpretation if it is “based on a permissible 

construction” of the statute) (citing Chevron, U.S.A., Inc. v. Natural Resources 

 

with the authority to appoint employees to carry out military department intelligence 

functions “without regard to the provisions of any other law relating to the number, 

classification, or compensation of employees”); NDAA, § 1633(a), 110 Stat. at 2571

(repealing this section).
8

Defense Council, Inc., 467 U.S. 837, 842-43 & n.9 (1984)). Thus, we agree with 

the administrative judge that, applying DoDI 1400.25, the appellant, a former 

DCIPS employee, was not entitled to veterans’ preference rights. 

¶12 The appellant also argues on review that the “[r]esponse to interrogatories 

was never addressed.” PFR File, Tab 1 at 3. The record reflects that the 

appellant filed three pleadings below that could be construed as discovery 

requests. IAF, Tab 1 at 20-21, Tab 3 at 4, Tab 7 at 4-5. However, discovery 

requests and responses are not to be filed in the first instance with the Board. 

5 C.F.R. § 1201.71. The administrative judge properly advised the appellant of 

the Board’s regulations regarding discovery and notified him that, unless he was 

filing a motion to compel, he could not submit discovery requests and responses 

to the Board. IAF, Tab 2 at 4-5. Thus, to the extent that the appellant contends 

that the administrative judge committed any error as to his discovery requests, we 

disagree because the appellant failed to file a motion to compel below. See 

Szejner v. Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005) (an 

appellant’s failure to file a motion to compel prior to the close of record below 

precludes him from raising a discovery dispute for the first time on petition for 

review), aff’d, 167 F. App’x 217 (2006); see also 5 C.F.R. § 1201.73(c) 

(indicating the requirements for a motion to compel). Even if the appellant had 

filed a motion to compel, he has not shown how the information he sought to 

discover would have changed the result in his appeal, and thus he does not state a 

basis for granting review. See Russell v. Equal Employment Opportunity 

Commission, 110 M.S.P.R. 557, ¶ 15 (2009). 

ORDER

¶13 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)).
9

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. 

If you are interested in securing pro bono representation for an appeal to 

the United States 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 
10

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.