NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

WILLIAM B. JOLLEY,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2018-1538

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-4324-17-0728-I-1.

-------------------------------------------------

WILLIAM B. JOLLEY,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2018-1539

______________________ 
2 JOLLEY v. MSPB

Petition for review of the Merit Systems Protection 

Board in No. AT-3330-18-0074-I-1.

______________________ 

Decided: October 2, 2018

______________________ 

WILLIAM B. JOLLEY, Brunswick, GA, pro se. 

 SARA B. REARDEN, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by KATHERINE MICHELLE 

SMITH. 

 ______________________ 

Before CHEN, MAYER, and BRYSON, Circuit Judges.

PER CURIAM. 

William B. Jolley seeks review of two final decisions of 

the Merit Systems Protection Board (Board) denying his 

requests for corrective action based on alleged violations 

of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301–

4335, and the Veterans Employment Opportunities Act 

(VEOA), 5 U.S.C. §§ 3302–30. We address these two 

appeals in a single opinion because they cover similar 

questions and are based on the exact same record. Because the Board correctly determined that it lacked 

jurisdiction to consider either request, we affirm.

BACKGROUND

Mr. Jolley is a preference-eligible veteran who served 

with the U.S. Air Force for nine years before being honorably discharged in 1959. Mr. Jolley is also a former 

employee of the U.S. Department of Housing and Urban 

Development (HUD). In 2008, HUD transferred Mr. 

Jolley from his GS-15 Operations Specialist position in 
JOLLEY v. MSPB 3

Jacksonville, Florida, to a GS-15 Field Office Director 

position in Boise, Idaho. He retired on March 31, 2010. 

In 2017, Mr. Jolley applied for two HUD vacancies 

and was not selected to fill either vacancy. On September 

27, 2017, Mr. Jolley filed an appeal with the Board alleging that: (1) HUD, as reprisal for Mr. Jolley’s pre-2008

allegations that HUD had violated USERRA when it in 

2008 reassigned him from Jacksonville, Florida, to Boise, 

Idaho; and (2) HUD’s use of “dual announcements” in the 

two vacancies Mr. Jolley applied for in 2017 violated

USERRA and VEOA by failing to fairly evaluate his 

applications for those vacancies. This second allegation 

rests in part on Mr. Jolley’s assertion that his nonselection was a retaliatory act by HUD for his various 

prior claims of USERRA violations. Mr. Jolley requested 

an order requiring HUD to assign Mr. Jolley to a GS-15 

supervisory position east of the Mississippi River as of 

April 1, 2010, and to provide him with associated backpay. 

On September 29, 2017, the Board issued an order directing Mr. Jolley to show good cause as to why his appeal 

should not be dismissed for attempting to appeal a claim 

that had already been raised in an earlier appeal. Mr. 

Jolley has previously appealed a decision finding that his 

directed reassignment complied with USERRA. See

Jolley v. Merit Systems Protection Board, 636 Fed. App’x 

567 (Fed. Cir. 2016). That case is currently pending at 

the Board after remand from this Court. On October 5, 

2017, Mr. Jolley responded to the Board’s order, acknowledging that the present appeal concerns the same matter 

being considered in the 2016 appeal and asserting that 

there has not been sufficient action taken by the Board to 

resolve the issue. 

On September 29, 2017, the Board issued a second order addressing the USERRA allegations relating to Mr. 

Jolley’s non-selection for two positions. In that second 
4 JOLLEY v. MSPB

order, the Board stated that there was a question as to 

whether the appeal was within the Board’s jurisdiction. 

The Board set out the circumstances under which it would 

have jurisdiction over a USERRA appeal and ordered Mr. 

Jolley to show good cause why it had jurisdiction over his 

appeal, including any specific allegations and evidence

that Mr. Jolley’s uniformed service was a substantial or 

motivating factor in HUD’s decision in selecting who 

would fill the 2017 vacancies. 

On October 5, 2017, Mr. Jolley responded to the second order, alleging that “a substantial and motivating 

factor” in HUD’s decision not to choose him for the 2017 

HUD vacancies was due to his complaint that he had not 

been chosen for prior 2016 HUD vacancies on account of 

his veteran status. Mr. Jolley then provided a chronology 

from 2004 through 2017 of instances where HUD allegedly discriminated against him. HUD filed an agency 

response, and Mr. Jolley replied two days later. 

On November 17, 2017, the Board issued an initial 

decision explaining that the directed reassignment matter

was not properly at issue in this appeal because it is 

currently pending before the Board in a separate appeal. 

The Board dismissed the USERRA complaint for lack of 

jurisdiction because Mr. Jolley failed to assert a nonfrivolous allegation, due to the conclusory and vague 

nature of the complaint. The Board found that Mr. Jolley 

did not allege sufficient facts to show that his uniformed 

service was a substantial and motivating factor in his 

failure to be chosen for the HUD vacancies. 

The Board docketed Mr. Jolley’s VEOA claim relating 

to the 2017 HUD vacancy announcements as a separate 

appeal. On November 3, 2017, the Board issued an order 

explaining what the statute requires for the Board to 

have jurisdiction over a VEOA appeal and requesting

proof that Mr. Jolley complied with those requirements. 

Among the requirements was 5 U.S.C. § 3330(a)(1)(A)’s 
JOLLEY v. MSPB 5

need for the appellant to establish that he exhausted his 

Department of Labor administrative remedy before bringing an appeal to the Board. Mr. Jolley responded with a 

motion noting his disagreement with the Board’s sua 

sponte docketing of a separate appeal for the VEOA issue 

and asking the Board to dismiss the VEOA appeal so that 

his USERRA and VEOA-based appeals could be heard in 

a single case. On November 7, 2017, the Board denied 

Mr. Jolley’s motion, citing its discretionary authority to 

regulate the course of appeals. On November 16, 2017, 

Mr. Jolley responded, maintaining his request to dismiss 

the VEOA appeal and confirming that he has not filed the 

requisite complaint with the Department of Labor in 

order for the Board to have jurisdiction over the VEOA 

appeal. The Board denied the VEOA appeal for lack of 

jurisdiction, citing both Mr. Jolley’s failure to file a complaint with the Department of Labor and Mr. Jolley’s 

failure to assert a non-frivolous allegation that HUD’s 

decisions not to choose him to fill the vacancies violated 

the VEOA. 

Mr. Jolley appeals. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

We must affirm a final decision of the Board unless 

we find it to be: (1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) 

obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence. 5 U.S.C. § 7703(c). We review de 

novo the Board’s determinations concerning jurisdiction 

but review for substantial evidence factual findings that 

underlie the Board’s jurisdictional analysis. Parrott v. 

Merit Sys. Prot. Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).

The Board’s jurisdiction is limited to that expressly 

granted by statute, rule, or regulation. See 5 U.S.C. 

§ 7701(a); Delalat v. Dep’t of Air Force, 557 F.3d 1342, 
6 JOLLEY v. MSPB

1343 (Fed. Cir. 2009). The burden is on the petitioner to 

establish the Board’s jurisdiction over his or her appeal by 

a preponderance of the evidence. Delalat, 557 F.3d at 

1343. If the appellant makes non-frivolous allegations, 

the Board should hold a hearing for the appellant to 

present further evidence. Coradeschi v. Dep’t of Homeland Sec., 439 F.3d 1329, 1332 (Fed. Cir. 2006). 

As the Board noted, the issue of whether the Board 

properly dismissed Mr. Jolley’s appeal regarding his 

reassignment from Florida to Idaho is currently pending

in front of the Board after remand from this court in a 

separate matter. See Jolley v. Merit Sys. Prot. Bd., 636 F. 

App’x 567, 569–70 (Fed. Cir. 2016). That issue is therefore not properly on appeal in this proceeding. 

Moreover, as to Mr. Jolley’s attack against the use of

“dual announcements” to fill a vacancy, we have already 

decided that dual announcements comply with both the 

VEOA and USERRA.1 See Joseph v. FTC, 505 F.3d 1380, 

1385 (Fed. Cir. 2007) (holding that the use of dual announcements does not violate the VEOA). 

As we explained in Joseph, federal agencies generally 

use two types of selection to fill vacancies: (1) an open 

“competitive examination” process, and (2) the “merit 

promotion” process. 505 F.3d at 1381. When an agency 

uses both types of hiring processes for a particular position, it issues “dual announcements.” 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. Id. Under this 

1 In a non-precedential opinion, we have previously 

rejected a prior challenge by Mr. Jolley under USERRA to 

HUD’s use of dual announcements. Jolley v. Dep’t of 

Hous. & Urban Dev., 299 F. App’x 966, 968 (Fed. Cir. 

2008). 

 
JOLLEY v. MSPB 7

process, applicants for employment are given a numerical 

rating and placed on a list of qualified personnel for 

appointment. Id. (citing 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. Id. (citing 5 U.S.C. § 3318(a) (1978)). Under the 

VEOA, veterans seeking such employment receive special 

advantages, including five or ten points being added to 

their scores and being ranked ahead of candidates with 

the same score. Id. at 1381–82. 

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. Id. at 1382 (citing 5 C.F.R. 

§ 335.103(b)(1)). Veterans’ point preferences under the 

competitive appointment process do not apply in the merit 

promotion process, but veterans may not be denied the 

opportunity to apply. Id. (citing 5 U.S.C. §§ 3304(f)(3)-

(4)). 

In Joseph, we looked to Abell v. Department of the Navy, 343 F.3d 1378 (Fed. Cir. 2003), to provide guidance. 

Joseph, 505 F.3d at 1384–85. In Abell, we determined 

that use of dual vacancy announcements did not violate 

the VEOA. 343 F.3d at 1384–85. We concluded that 

because the veteran was given the opportunity to compete 

in the process, which was all that the VEOA required, the 

Navy’s decision to fill the position through the merit 

promotion system rather than through the competitive 

process did not violate the veteran’s rights. Id. We then 

adopted the same reasoning and result in Joseph to 

determine that dual vacancy announcements did not 

violate the VEOA. 505 F.3d at 1384–85. 

We have interpreted a violation of USERRA to require 

“discriminatory animus,” or that the veteran be treated in 

a harsher manner than non-veterans. Sheehan v. Dep’t of 

Navy, 240 F.3d 1009, 1014 n.3 (Fed. Cir. 2001). Here, Mr. 
8 JOLLEY v. MSPB

Jolley did not allege specific facts indicating that dual 

announcements were utilized in a discriminatory way. 

To prove a USERRA violation, an appellant bears the 

initial burden of showing by a preponderance of the 

evidence that the employee’s military service was “a 

substantial or motivating factor” in the adverse employment action. See Sheehan, 240 F.3d at 1013. Mr. Jolley 

alleges he would have been selected to fill the 2017 HUD 

vacancies “if the competition had been fairly administered 

in accordance with law.” Appeal No. 2018-1538 Appendix 

25. Mr. Jolley then alleges that the fact that he appealed 

his 2016 non-selections to the Department of Labor and 

the Board was a substantial and motivating factor for him 

not being selected to fill the 2017 vacancies. Id. Mr. 

Jolley does not provide anything more specific to support

these otherwise conclusory allegations. 

On the record presented, we agree that Mr. Jolley did 

not meet his burden of making non-frivolous allegations 

that HUD violated the VEOA or USERRA by not selecting 

Mr. Jolley for the 2017 vacancies. Accordingly, we agree 

that the Board does not have jurisdiction to hear Mr. 

Jolley’s VEOA and USERRA claims. We also agree that 

the Board lacks jurisdiction to hear the VEOA appeal 

because Mr. Jolley did not exhaust his Department of 

Labor remedy. 

For the foregoing reasons, the final decision of the 

Board is affirmed.

AFFIRMED