UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JESSE OVERBY,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DE-3330-17-0398-I-1

DATE: July 18, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jesse Overby, Castle Rock, Colorado, pro se.

Yolanda Hernandez, Chantilly, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, 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 of 1998 (VEOA). Generally, we grant petitions such as this 

one only in the following circumstances: the initial decision contains erroneous 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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 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 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 After exhausting administrative procedures with the Department of Labor 

(DOL), the appellant filed a Board appeal alleging that the agency violated his 

rights under VEOA when it did not select him for a Project Manager position. 

Initial Appeal File (IAF), Tab 1. The appellant did not request a hearing. Id. 

¶3 Based on the parties’ written submissions, the administrative judge found 

that the appellant established jurisdiction, but that he did not show that his 

veterans’ preference rights had been violated. IAF, Tab 15, Initial Decision (ID) 

at 3-5. She found that the agency issued two announcements for the position, a 

merit promotion announcement and a public announcement. ID at 4. She found 

that, because the appellant applied only under the merit promotion announcement, 

and the agency made its selection under the public announcement, the appellant’s 

entitlements under VEOA were not violated when he was not selected for the 

position. ID at 5.

¶4 In his petition for review, the appellant alleges that DOL mistakenly stated 

that the agency made its selection for the Project Manager position from the merit 
3

promotion announcement. Petition for Review File, Tab 1. He also appears to 

assert that only current employees of the agency could be considered under the 

merit promotion announcement, and because none of the applicants on that 

announcement were current agency employees, veterans’ preference rules applied 

to the selection under the announcement. Id. He argues that the selectee for the 

position was not merit promotion eligible, and that Congress intended that 

veterans’ preference rules apply to merit promotion announcements. Id. He 

argues that veterans’ preference should be considered in every instance. Id. The 

agency has not responded to the petition.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board has jurisdiction over two types of VEOA claims: (1) the denial 

of a right to compete; and (2) the violation of a statute or regulation relating to 

veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference 

claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (“right-to-compete” claims); see

generally Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015). 

The administrative judge determined that the appellant was raising a VEOA claim 

concerning the violation of a statute or regulation relating to veterans’ preference. 

She advised the appellant that, to establish Board jurisdiction over such a claim, 

he must show the following: (1) that he exhausted his remedy with DOL; and

(2) that he make nonfrivolous allegations that (i) he is preference eligible within 

the meaning of VEOA; (ii) the action at issue took place on or after the 

October 30, 1998 enactment date of VEOA; and (iii) the agency violated his 

rights under a statute or regulation relating to veterans’ preference. ID at 2; see 

Miller v. Federal Deposit Insurance Corporation, 121 M.S.P.R. 88, ¶ 6 (2014), 

aff’d, 818 F.3d 1357 (Fed. Cir. 2016). The administrative judge found that the 

appellant established jurisdiction over his appeal but did not establish that the 

agency violated his veterans’ preference rights. ID at 3-5. 
4

¶6 The appellant has not provided a basis for disturbing this finding on review. 

The Board has held that an agency has the discretion to fill a vacant position by 

any authorized method. Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, 

¶ 11 (2006), aff’d, 505 F.3d 1380 (Fed. Cir. 2007). There is nothing preventing 

an agency from soliciting applications from the general public and from merit 

promotion applicants simultaneously. Id. We agree with the administrative 

judge’s well-reasoned finding that, because the appellant only applied for the 

Project Manager position through the merit promotion announcement and the 

agency selected a non-merit promotion eligible candidate from the public 

announcement, the agency did not violate the appellant’s entitlements under 

VEOA. ID at 5.

¶7 Regarding the appellant’s allegation that DOL mistakenly stated that the 

agency made its selection from the merit promotion announcement, in a VEOA 

appeal, the matter that is appealable to the Board is the alleged violation of the 

individual’s rights under a statute or regulation related to veterans’ preference, 

not DOL’s decision concerning the alleged violation. 5 U.S.C. § 3330a(d)(1). In 

other words, the appeal before the Board is a de novo proceeding in which the 

Board is not required to defer to DOL’s findings regarding the merits of the 

individual’s complaint. Shaver v. Department of the Air Force, 106 M.S.P.R. 

601, ¶ 8 n.4 (2007). Thus, whether DOL mistakenly stated that the agency made 

its selection from the merit promotion announcement has no bearing on the 

Board’s adjudication of the matter.

¶8 To the extent the appellant is seeking to raise a “right to compete” claim 

under 5 U.S.C. § 3330a(a)(1)(B), he has failed to establish jurisdiction over any 

such claim.2 To establish jurisdiction over a VEOA right to compete claim, the 

 

2

The administrative judge did not provide the appellant with notice of how to establish 

jurisdiction over a “right to compete” VEOA claim. To the extent the administrative 

judge erred in this regard, any such adjudicatory error is not prejudicial to the 

appellant’s substantive rights and it provides no basis for reversal of the initial decision 
5

appellant must: (1) show that he exhausted his remedy with DOL; and (2) make 

nonfrivolous allegations that (i) he is a veteran within the meaning of 5 U.S.C. 

§ 3304(f)(1), (ii) the actions at issue took place on or after the December 10, 2004 

enactment date of the Veterans Benefits Improvement Act of 2004, and (iii) the 

agency denied him the opportunity to compete under merit promotion procedures 

for a vacant position for which the agency accepted applications from individuals 

outside its own workforce in violation of 5 U.S.C. § 3304(f)(1). Becker v. 

Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). Here, the 

appellant has not alleged that he was denied the right to compete as a preference 

eligible under the merit promotion announcement issued by the agency. In fact, 

the record reflects that he was interviewed for the Project Manager p osition. IAF,

Tab 6 at 11-12; see Harellson v. U.S. Postal Service, 113 M.S.P.R. 534, ¶ 11 

(2010) (explaining that the only issue in an appeal concerning 5 U.S.C. 

§ 3304(f)(1) is whether the appellant was permitted to compete for the position on 

the same basis as other candidates). Thus, we also find that the appellant has 

failed to establish the Board’s jurisdiction over a VEOA right to compete claim.

NOTICE OF APPEAL RIGHTS3

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). 

 

because the record is sufficiently developed for us to resolve the jurisdictional issue at 

this stage. See Morris v. Department of the Army, 113 M.S.P.R. 304, ¶ 8 (2010)

(considering for the first time on review whether the Board has jurisdiction over the 

appeal under VEOA when the appellant was not provided with specific notice of the 

VEOA jurisdictional criteria and when the record was sufficiently developed on this 

issue); Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an

adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis 

for reversal of an initial decision).

3

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.
6

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). 

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 partic ular 

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. 
7

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. 420 (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 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 
8

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 

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 appeals of 

competent jurisdiction.4The court of appeals must receive your petition for 

 

4

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 
9

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 

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

any attorney will accept representation in a given case. 

 

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

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