UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LARRY L. PRICE,

Appellant,

v.

DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT,

Agency.

DOCKET NUMBER

CH-4324-12-0740-I-1

DATE: August 13, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Larry L. Price, Belleville, Illinois, pro se.

Katherine A. Varney, Kristy McTighe, and Yuliya Levitan, Kansas City, 

Kansas, 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 

denied his requests for corrective action under the Veterans Employment 

Opportunities Act of 1998 (VEOA) and the Uniformed Services Employment and 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) 

(USERRA). Generally, we grant petitions such as this one only when: the 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). 

BACKGROUND

¶2 The administrative judge found that the appellant established jurisdiction 

over his VEOA claim concerning his nonselection for the General Engineer 

position. 2

 Initial Appeal File (IAF), Tab 42, ID at 2. The administrative judge

also found that the appellant established jurisdiction over his USERRA claims 

that the agency discriminated against him on the basis of his military service 

when it declined to select him for the General Engineer position, which was 

advertised under dual authorities, and when it canceled its advertised vacancy for 

the Project Manager position without filling it, only to later fill the position via 

the “hardship transfer” of an existing employee. ID at 6. 

 2 The administrative judge found that the appellant failed to demonstrate that he 

exhausted his administrative remedies with the Department of Labor concerning his 

nonselection for the Program Analyst and Construction Analyst positions. Initial 

Decision (ID) at 2 n.1. 
3

¶3 The administrative judge held a hearing and denied corrective action under 

both VEOA and USERRA. He found that the appellant did not establish that the 

agency violated his rights under VEOA when it did not select him for the General 

Engineer position. ID at 6. Specifically, the administrative judge found that the 

agency afforded the appellant a right to compete under merit promotion 

procedures and that the agency’s failure to issue a certificate under the delegated 

examining unit (DEU) procedures did not violate the appellant’s veterans’ 

preference rights. ID at 3-5. Further, he found that the agency did not violate the 

appellant’s veterans’ preference rights when it determined that he did not meet 

the minimum educational requirements set by the Office of Personnel 

Management (OPM) for the General Engineer position. ID at 5-6 n.5. 

Concerning the appellant’s USERRA claim, the administrative judge found that 

the appellant provided no evidence that his nonselections to the General Engineer 

and Project Manager positions were motivated by discrimination based on his 

military service. ID at 6-10.

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed an opposition to the petition for review. PFR 

File, Tab 4. For the following reasons, we affirm the administrative judge’s 

decision to deny corrective action. 

ANALYSIS

The administrative judge correctly analyzed the appellant’s VEOA claim

concerning the General Engineer position. 

¶5 On review, the appellant challenges the administrative judge’s factual 

findings, legal conclusions, and discovery rulings regarding his VEOA claim. 

First, the appellant argues that the administrative judge did not adequately 

address his argument that the agency violated his veterans’ preference rights 

when it failed to issue a DEU certificate with his veterans’ preference points that 

would have placed him above the other candidates for the position. PFR File,

Tab 1 at 1-2. He further argues that the agency improperly passed him over and 
4

that the agency improperly deemed him unqualified for the position because he 

lacked sufficient years of education. Id. at 5-7. Second, he makes several 

arguments regarding violations of rules and procedures in the adjudication of his 

appeal, including alleged errors in discovery rulings. Id. at 3-5. The appellant 

also argues that the selecting official “lied” about her justification for selecting 

an individual who, according to the appellant, was not qualified for the General 

Engineer position. Id. at 8-9. The appellant asserts that, contrary to the agency’s 

claim, the evidence reflects that a DEU certificate for the General Engineer 

position was prepared and issued with the appellant at the top of the certificate. 

Id. at 9. 

¶6 As the administrative judge found, the appellant was given the opportunity 

to compete for the position under merit promotion procedures. 3

 Under such

procedures, the agency was not obligated to provide any other preference to the 

appellant other than an opportunity to compete. See Joseph v. Federal Trade 

Commission, 505 F.3d 1380, 1383-84 (Fed. Cir. 2007). Further, when an agency 

advertises a vacancy under both merit promotion and open competitive 

procedures, it does not violate veterans’ preference rights when it makes its 

selection exclusively under merit promotion procedures. Id. at 1384-85. Thus, 

regardless of any actions under the DEU procedures, 4 the agency did not violate

the appellant’s veterans’ preference rights when it used the merit promotion 

procedures to fill the position. 

¶7 Concerning the appellant’s argument that he was qualified for the position

even though the agency determined that he did not meet the minimum education 

 3 The appellant does not dispute that he was given the opportunity to compete for the

position under merit promotion procedures. 

4 Although the appellant asserts that the agency did issue a certificate under the DEU 

procedures, PFR File, Tab 1 at 9, the record does not support his assertion. Regardless, 

whether the agency issued a certificate under the DEU procedures is irrelevant given 

that it made a selection through the merit promotion procedures and was not obligated 

to pursue the DEU process. 
5

requirements, the appellant relies upon 38 U.S.C. § 4214, which states, in part, 

that “(A) such an appointment may be made up to and including the level GS-11 

or its equivalent; (B) a veteran shall be eligible for such an appointment without 

regard to the number of years of education completed by such veteran.” 

38 U.S.C. § 4214(b)(1)(A)-(B) (emphasis added). It is undisputed, however, that 

the General Engineer position was a level GS-12/13. IAF, Tab 12, Subtabs 2j, 2k. 

Therefore, this provision does not apply to the General Engineer position. 

Further, the appellant provides no meaningful challenge to the administrative 

judge’s finding that the agency properly set the minimum education requirement 

for the position. ID at 5 n.5. An agency may impose a minimum education

requirement when it “decides that the duties of a scientific, technical, or 

professional position cannot be performed by an individual who does not have a 

prescribed minimum education.” 5 U.S.C. § 3308; see Burroughs v. Department 

of the Army, 115 M.S.P.R. 656, ¶¶ 12-13, aff’d, 445 F. App’x 347 (Fed. Cir. 

2011). Further, OPM has minimum education guidelines for the General 

Engineer position, which is in the 0800 series for professional engineering 

positions.

5

 Id., ¶ 13. 

¶8 The appellant also contends that the administrative judge erred in denying 

his witness request to elicit the testimony of the Deputy Assistant Secretary for 

Field Operations. The Deputy Assistant Secretary provided a declaration 

concerning the vacancy announcement for the General Engineer position. IAF,

Tab 37, Witnesses List at 2; PFR File, Tab 1 at 4. The declaration concerned the 

need for the General Engineer position to be filled by individuals with the 

requisite education and professional experience. IAF, Tab 38, Exhibit (Ex.) 7 

at 21-22. We agree with the administrative judge’s finding that such testimony 

 5 See OPM’s General Schedule Qualification Standards, All Professional Engineering 

Positions, 0800, available at http://www.opm.gov/policy-data-oversight/classificationqualifications/general-schedule-qualification-standards/0800/all-professionalengineering-positions-0800/. 
6

was not relevant to the issues to be decided at the hearing. As we discussed 

above, the agency’s minimum education requirement was proper because of the 

nature of the position. 

¶9 Finally, the appellant argues that the selecting official for the General 

Engineer position lied in her deposition about who was most qualified. The 

deposition transcript reflects that she testified that the appellant “probably” had 

more years of experience “doing cost estimates, reviewing specifications, drawing 

and bid documents” but that the selectee was more qualified for the position 

because he had an engineering degree. IAF, Tab 37, Subtab O at 60; PFR File,

Tab 1 at 9. We have reviewed the portions of the deposition identified by the 

appellant and disagree with his characterization of the testimony as an admission 

that the selectee was not qualified. PFR File, Tab 1 at 9; IAF, Tab 37, Subtab R 

at 23-42. The selecting official also stated that the appellant was not qualified for 

the position because he lacked the combination of education and experience 

required for the General Engineer position. IAF, Tab 37, Subtab R at 42-45. 

Further, the administrative judge found her hearing testimony consistent and 

credible, and we discern no reason to disturb such findings. ID at 4-6. We find, 

therefore, that the administrative judge appropriately weighed the record evidence 

to resolve the conflicting opinions regarding the appellant’s qualifications for the 

General Engineer position. 6

 PFR File, Tab 1 at 8; ID at 8. 

¶10 Thus, we affirm the administrative judge’s finding that the appellant did not 

establish a violation of his veterans’ preference rights.

The administrative judge correctly analyzed the appellant’s USERRA claims. 

¶11 Regarding the appellant’s USERRA claims, the appellant argues that the 

administrative judge improperly disallowed two of his proffered witnesses. PFR 

 6 The appellant has not demonstrated that the resume of an agency engineer, which he 

attaches to his petition for review, was unavailable to him before the close of the record 

below. PFR File, Tab 1 at 13, Ex. A; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 

211, 214 (1980); see also PFR File, Tab 4 at 13. 
7

File, Tab 1 at 4. One of the witnesses, however, was not listed on the appellant’s

list of witnesses attached to his prehearing submission; consequently, the 

administrative judge made no ruling on this particular witness. IAF, Tab 37, 

Witnesses List. The administrative judge ruled that the other witness was not 

relevant, and we agree. IAF, Tab 39 at 4. The appellant sought to question the 

individual who was reassigned to the Project Manager position in order to 

“determine all the particular[s] and time frames by which he was appointed to the 

position.” IAF, Tab 37, Witnesses List at 2. The record shows that the selecting 

official elected to not hire anyone from the certificates of eligibles issued for the 

position because none of the applicants, including the appellant, had the 

qualifications that they were seeking for the position. The selecting official 

specifically stated that the appellant did not have relevant experience in asset 

management, which was highly preferred for the position. IAF, Tab 12,

Subtab 2b. Accordingly, the selecting official returned the certificates with “no 

action taken.” About 6 months later, the selecting official agreed to accept a 

noncompetitive lateral reassignment of an employee as a “hardship transfer.” 7

 Id. 

Although the employee also was not trained in asset management, the selecting 

official accepted the reassignment based on his favorable educational background, 

a PhD, and his good professional reputation within the agency. Id. The issue

presented here was whether the agency discriminated against the appellant based 

on his military service when it declined to select him for the position. The 

appellant has not argued how the testimony of this employee, who was transferred 

to the position more than 6 months after the appellant’s nonselection, would have 

 7 A “hardship transfer” is a term of art referring to a noncompetitive reassignment of an 

employee under 5 C.F.R. part 335 because of a serious medical condition that affects

the health and welfare of a family member of an employee. Hardship Reassignment 

Policy and Procedures, HUD Handbook 650-1, July 2010. Under these procedures, the 

agency may exercise its discretion to noncompetitively reassign an employee to a 

vacant position as long as the employee meets the minimum qualifications of the

position, the position is of an equivalent or lower grade, and the position does not have 

greater promotion potential than the employee’s current position. Id.
8

been relevant to this appeal. PFR File, Tab 1 at 4. Furthermore, the 

administrative judge approved as a witness the selecting official, who also 

approved the reassignment. Therefore, the appellant had the opportunity to elicit 

testimony directly from her concerning the details of the hardship transfer, 

including whether it was motivated by discriminatory animus. IAF, Tab 39 at 4. 

¶12 The record reflects that the appellant filed multiple motions to compel. 

IAF, Tabs 17, 23, 26, 29, 32, 35. The administrative judge denied them for 

failure to involve discovery reasonably calculated to lead to admissible evidence. 

IAF, Tab 35 at 5. Although the appellant objects to the denial of his motions, he 

only specifically objects to the denial of his motion to compel documents relating 

to the hardship transfer to the Project Manager position. PFR File, Tab 1 at 4. 

The administrative judge found that the agency’s witness credibly testified about 

the circumstances surrounding the hardship transfer, including that she was 

compelled to honor the hardship transfer request from the employee despite the 

fact that he did not have the asset management experience that is preferred for the 

position. ID at 9. The appellant does not argue how any additional details 

surrounding the hardship transfer could have demonstrated that the agency’s 

failure to select him for the Project Manager position was motivated by 

discriminatory animus based on his military service or status. Thus, we find that 

the administrative judge did not abuse his discretion in denying the appellant’s 

motions to compel. See Lee v. Environmental Protection Agency, 115 M.S.P.R. 

533, ¶ 7 (2010). 

¶13 Finally, the appellant argues that the administrative judge failed to make a 

finding to resolve the two conflicting declarations in the record concerning who 

actually reviewed the applications for the Project Manager position. PFR File,

Tab 1 at 10-12; IAF, Tab 37, Subtab Y (declaration of selecting official). We 

find, however, that the administrative judge carefully considered the testimony of 

the selecting official, in addition to her declaration, and found her a credible 
9

witness. ID at 8-10. Further, the selecting official’s declaration explained the 

discrepancy in the record. IAF, Tab 37, Subtab Y. 

¶14 For the foregoing reasons, we affirm the administrative judge’s decision to 

deny corrective action under USERRA and VEOA. 

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. 
10

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