UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2007 MSPB 130 

Docket No. PH-3443-06-0506-I-1 

Ronald A. Davis, 

Appellant, 

v. 

Department of Defense, 

Agency. 

May 7, 2007 

Ronald A. Davis, Baltimore, Maryland, pro se. 

Robert E. Golinski, Esquire, Denver, Colorado, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 The appellant has petitioned for review of an initial decision that dismissed 

his appeal for failure to state a claim upon which relief may be granted. For the 

reasons set forth below, we DENY the petition for review, REOPEN the appeal 

on our own motion, VACATE the initial decision in part, AFFIRM the initial 

decision in part, and REMAND the appeal for further adjudication. 

BACKGROUND

¶2 The appellant, a GS-5 Military Pay Technician with the agency and a 

preference-eligible veteran, applied for a competitive service GS-6 Military Pay 

Technician position with the agency. The agency appears to have canceled the 
2

first referral list that it generated, and it later selected an internal candidate who 

is not preference eligible for the GS-6 Military Pay Technician position. The 

appellant then brought this appeal under the Uniformed Services Employment and 

Reemployment Rights Act (USERRA), 38 U.S.C. §§ 4311, 4324, claiming that 

the agency discriminated against him because of his status as a veteran. He also 

asserted a claim under the Veterans Employment Opportunities Act (VEOA) for 

an alleged violation of his veterans’ preference rights. In addition, the appellant 

claimed that the agency violated four merit system principles and that it 

committed two prohibited personnel practices. The appellant requested a hearing. 

Initial Appeal File (IAF), Tab 1. 

¶3 The agency moved to dismiss the appeal for lack of Board jurisdiction, 

arguing that it did not violate veterans’ preference laws. IAF, Tab 4, Subtab 1. 

Specifically, the agency argued that the area of consideration for the position was 

restricted, as permitted by the vacancy announcement, to permanent agency 

employees, and that as a result the appellant’s status as a veteran had no bearing 

on hiring because the position was filled as a merit promotion. Id. The agency 

further argued that it did not violate USERRA or merit systems principles and 

that it did not commit any prohibited personnel practices. Id.

¶4 The appellant responded, arguing that he met the jurisdictional 

requirements for USERRA and VEOA appeals. IAF, Tab 9. He also argued, 

inter alia, that the position could not be filled as a merit promotion because the 

vacancy announcement stated that the position was open to all candidates, the 

agency limited the area of consideration to circumvent veterans’ rights, and the 

agency violated 5 U.S.C. §§ 3317 and 3318(a), (b). Id.

¶5 The administrative judge (AJ) dismissed the appeal for failure to state a 

claim upon which relief may be granted under USERRA or the VEOA, although 
3

the AJ also suggested that the Board lacks jurisdiction under the VEOA.1

 The AJ 

dismissed the appeal for lack of jurisdiction insofar as the appellant asserted 

claims of prohibited personnel practices and violations of the merit system 

principles. Initial Decision (ID), IAF, Tab 11. 

ANALYSIS

USERRA

¶6 This appeal is within the Board’s jurisdiction under USERRA because the 

appellant alleges that he performed uniformed service, that he applied for a 

promotion and was not selected, and that the agency’s action was because of his 

uniformed service. See 38 U.S.C. §§ 4311(a), 4324; Dale v. Department of 

Veterans Affairs, 102 M.S.P.R. 646, ¶¶ 14-15 (2006). As noted above, the 

appellant requested a hearing in his petition for appeal, but the AJ disposed of the 

appellant’s USERRA claim without a hearing. After the AJ issued his initial 

decision, the Board’s reviewing court held that an individual who brings a 

USERRA appeal has an unconditional right to a hearing on the merits. 

Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007). 

Accordingly, we vacate the AJ’s findings and conclusions on the merits of the 

appellant’s USERRA claim and remand that claim for a hearing. 

VEOA

¶7 In order to establish Board jurisdiction over a VEOA appeal, the appellant 

must: (1) Show that he exhausted his remedy with the Department of Labor 

(DOL); and (2) make nonfrivolous allegations that: (i) He is a preference eligible 

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

 

1

 In the ID, the AJ stated, “In sum, I find that the appellant has demonstrated all of the 

necessary criteria for the Board to assume jurisdiction and consider his appeal under the 

VEOA.” ID at 8. However, the AJ also stated that the appellant failed to make a 

nonfrivolous allegation that the agency violated his rights under a statute or regulation 

relating to veterans’ preference, which is a jurisdictional requirement. Id. 
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October 30, 1998, enactment date of the VEOA; and (iii) the agency violated his 

rights under a statute or regulation relating to veterans’ preference. Abrahamsen 

v. Department of Veterans Affairs, 94 M.S.P.R. 377, ¶ 6 (2003). For the appellant 

to meet the VEOA’s requirement that he exhaust the DOL complaint procedure, 

he must establish that: (1) He filed a complaint with the Secretary of Labor; and 

(2) the Secretary of Labor was unable to resolve the complaint within 60 days or 

has issued a written notification that the Secretary’s efforts have not resulted in 

resolution of the complaint. Goldberg v. Department of Homeland Security, 

99 M.S.P.R. 660, ¶ 8 (2005). 

¶8 The appellant asserted in his appeal that he filed a VEOA complaint with 

DOL on May 15, 2006, and received notification on May 30, 2006, that it was 

closing its case on the complaint. IAF, Tab 1 at 2. The Board’s regulation at 

5 C.F.R. § 1208.23(a)(5) requires “evidence” that the appellant exhausted his 

remedy with DOL, such as a notification letter. The AJ appears to have either 

found jurisdiction based on the appellant’s assertions in his appeal, or implicitly 

waived the regulation requiring the DOL letter. ID at 7. We note that an 

unsworn statement by an appellant in an initial appeal file is admissible evidence. 

Scott v. Department of Justice, 69 M.S.P.R. 211, 228 (1995), aff’d, 99 F.3d 1160 

(Fed. Cir. 1996) (Table). The fact that it is unsworn may detract from its 

probative value, but it should still be considered admissible evidence. Id. 

Moreover, the agency does not dispute the appellant’s assertion that he exhausted 

his remedy with DOL, and in fact incorporates this assertion in its response and 

motion to dismiss. IAF, Tab 4, Subtab 1. Based on the foregoing, we agree with 

the AJ that the appellant has exhausted his remedy with DOL. 

¶9 It is undisputed that the appellant is a preference eligible and that his 

nonselection took place after October 30, 1998. The AJ suggested that the 

appellant did not establish jurisdiction because he did not make a nonfrivolous 

allegation that the agency violated his rights under a statute or regulation relating 

to veterans’ preference. The AJ noted that the only laws cited by the appellant in 
5

support of his VEOA claim were 5 U.S.C. §§ 3317 & 3318.2

 The AJ observed 

that those laws apply to a selection made after a competitive examination, and 

found that here the position was filled as a merit promotion without a competitive 

examination. See Joseph v. Federal Trade Commission, 103 M.S.P.R. 684, ¶ 8 

(2006) (veterans’ preference that must ordinarily be given when making a 

selection for a competitive-service position does not apply when the agency 

selects an internal candidate under merit promotion procedures). The AJ thus 

concluded that the agency was not required to follow sections 3317 & 3318. 

¶10 The AJ’s analysis went to the merits of the appellant’s VEOA claim, not to 

the Board’s jurisdiction. We conclude that the appellant has established the final 

jurisdictional element under the VEOA by alleging that the agency violated 

specific rules that generally apply to selections for competitive-service positions. 

A finding that under the circumstances of this case the agency was not required to 

follow the veterans’ preference rules at 5 U.S.C. §§ 3317 & 3318 is a finding that 

the appellant’s VEOA claim fails on the merits, not a finding that the Board lacks 

the authority to adjudicate the claim. See Young v. Federal Mediation and 

Conciliation Service, 93 M.S.P.R. 99 (2002) (a finding that the agency was not 

required to follow veterans’ preference rules when it filled the particular position 

that the appellant sought was a denial of relief on the merits, not a dismissal for 

lack of jurisdiction), aff'd, 66 F. App’x 858 (Fed. Cir. 2003). 

 

2

 After a competitive examination that includes rating and ranking with veterans’ 

preference points added to the passing scores of preference eligibles, an examining 

authority certifies “enough names from the top of the appropriate register” to permit the 

appointing authority “to consider at least three names for appointment to each vacancy 

in the competitive service.” 5 U.S.C. § 3317(a). The appointing authority “shall select 

for appointment to each vacancy from the highest three eligibles available for 

appointment on the certificate furnished under section 3317(a).” 5 U.S.C. § 3318(a). If 

an appointing authority “proposes to pass over a preference eligible ... in order to select 

an individual who is not a preference eligible, such authority shall file written reasons 

with the Office [of Personnel Management (OPM)] for passing over the preference 

eligible” and obtain OPM's approval. 5 U.S.C. § 3318(b)(1). 
6

¶11 The AJ also stated that the appellant failed to state a claim upon which 

relief may be granted under the VEOA. However, such a disposition is 

appropriate only if, taking the appellant’s allegations as true, he cannot prevail as 

a matter of law. Ainslie v. United States, 355 F.3d 1371, 1373 (Fed. Cir. 2004); 

Will v. Department of the Treasury, 2007 MSPB 79, ¶ 9 (2007); Kennedy v. 

Department of the Air Force, 102 M.S.P.R. 524, ¶ 7 (2006). The appellant 

alleged before the AJ that the selection of a non-veteran for the GS-6 Military 

Pay Technician position was not a merit promotion, and that as a result, the 

agency was required to give him veterans’ preference. IAF, Tab 9 at 1-2. The AJ 

did not take the appellant’s allegation as true, but instead found, based on the 

agency’s documentary evidence, that the agency filled the GS-6 Military Pay 

Technician position by merit promotion of an internal candidate. Accordingly, it 

was inappropriate for the AJ to have dismissed the appellant’s VEOA claim for 

failure to state a claim upon which relief may be granted. 

¶12 The Board’s regulations provide for disposition of a VEOA claim on the 

merits without a hearing. 5 C.F.R. § 1208.23(b). Furthermore, the VEOA does 

not contain any language relating to a “hearing” comparable to the language in 

USERRA that the Kirkendall plurality relied upon to find an unconditional right 

to a hearing in a USERRA appeal; indeed, the word “hearing” does not appear 

anywhere in the VEOA. Compare 5 U.S.C. §§ 3330a – 3330c with 38 U.S.C. 

§ 4324(c)(1). Accordingly, the Board continues to have the authority to decide a 

VEOA claim on the merits, without a hearing, when there is no genuine dispute 

of material fact and one party must prevail as a matter of law. See Sherwood v. 

Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 11 (2001), modified on other 

grounds by Abrahamsen v. Department of Veterans Affairs, 94 M.S.P.R. 377 

(2003). 

¶13 Here, the parties dispute whether the agency appointed a non-preference 

eligible to the GS-6 Military Pay Technician position under merit promotion 

procedures. This dispute is material, in light of the applicable law on the 
7

relationship between veterans’ preference rules and merit promotion procedures. 

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (the applicable 

substantive law will determine which disputed facts are material). What is 

unclear is whether the dispute is genuine. A factual dispute is “genuine” when 

there is sufficient evidence supporting the contention of the party seeking an 

evidentiary hearing for the factfinder to resolve the dispute in that party’s favor. 

Anderson, 477 U.S. at 249; MacGlashing v. Dunlop Equipment Co., 89 F.3d 932, 

938 (1st Cir. 1996). The appellant alleges that the agency’s action was not taken 

under merit promotion procedures, but the agency’s documentary evidence 

appears to show the opposite. IAF, Tab 4, Subtabs 4A, 4F. 

¶14 The appellant was not put on notice of the need to show a genuine dispute 

of material fact in order to receive a hearing on his VEOA claim. Accordingly, 

on remand the AJ should afford the appellant an opportunity to show that there is 

a genuine dispute of material fact that requires a hearing to resolve, and then 

reconsider his denial of a hearing on the appellant’s VEOA claim. 

Alleged violation of merit system principles and prohibited personnel 

practices

¶15 The appellant alleged below that the agency’s decision not to select him 

violated the merit system principles found at 5 U.S.C. § 2301(b)(1), (4), (6) & 

(8). IAF, Tab 1 at 3. The merit system principles are not themselves a source of 

Board jurisdiction, however, D’Leo v. Department of the Navy, 53 M.S.P.R. 44, 

48 (1992), nor is a non-selection 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.” 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”). 

¶16 The appellant also alleged below that the agency’s decision not to select 

him was a prohibited personnel practice under 5 U.S.C. § 2302(b)(11) 

(prohibiting knowing violations of veteran’s preference requirements) and (12) 
8

(prohibiting actions that violate the merits systems principles). IAF, Tab 1 at 2. 

Absent an otherwise appealable action, however, the appellant’s prohibited 

personnel practice claims cannot be considered. Fogerty v. Department of the 

Treasury, 53 M.S.P.R. 168, 170 (1992); see also Ruffin v. Department of the 

Treasury, 89 M.S.P.R. 396, ¶ 12 (2001) (in a VEOA appeal the Board cannot 

consider a claim of prohibited discrimination under 5 U.S.C. § 2302(b)(1) 

because VEOA does not grant the Board the authority to consider claims for 

violations of laws other than veterans preference rules); Bodus v. Department of 

the Air Force, 82 M.S.P.R. 508, ¶¶ 10-17 (1999) (in a pure USERRA appeal the 

Board cannot consider a claim of prohibited discrimination under 5 U.S.C. 

§ 2302(b)(1) because USERRA does not grant the Board the authority to consider 

claims for violations of laws other than USERRA). 

¶17 The exception to the rule that a prohibited personnel practice claim may be 

considered by the Board only if it is raised in connection with an otherwise 

appealable action under section 7701 is when the appellant claims retaliation for 

whistleblowing in violation of 5 U.S.C. § 2302(b)(8). In that event, a Board 

appeal may be based on any “personnel action” listed at 5 U.S.C. 

§ 2302(a)(2)(A), not just those actions that are covered by section 7701. See

5 U.S.C. §§ 1214(a)(3), 1221. The AJ found that the appellant asserted a 

whistleblower retaliation claim, but based on our review of the record we find 

that the appellant did not raise such a claim in his pleadings. Furthermore, even 

if he did, he has abandoned such a claim because the AJ dismissed it and the 

appellant does not protest on review. In this connection, the appellant was 

informed in the initial decision that a claim of retaliation for whistleblowing 

could not be considered by the Board unless he first filed a retaliation complaint 

with the Office of Special Counsel (OSC) and exhausted OSC procedures. The 

AJ found that the appellant failed to show that he had exhausted OSC procedures, 

IAF, Tab 11 at 4-5, and the appellant does not argue otherwise on review. Cf. 

Pryor v. U.S. Postal Service, 61 M.S.P.R. 202, 206 (1994) (the AJ’s error in 
9

dismissing an appeal for lack of jurisdiction without first issuing an adequate 

show-cause order was not a prejudicial error requiring a remand; the initial 

decision put the appellant on notice of the jurisdictional elements and the 

appellant did not explain persuasively on review how he would have established 

jurisdiction below if he had been given an adequate show-cause order).3

ORDER

¶18 The appellant has established jurisdiction under USERRA and VEOA. He 

has not shown that his other claims relating to his unsuccessful application for the 

GS-6 Military Pay Technician position can be considered. The appeal is 

remanded for a hearing on the merits of the appellant’s USERRA claim. On 

remand, the AJ should also afford the appellant an opportunity to show that there 

is a genuine dispute of material fact necessitating a hearing on the appellant’s 

VEOA claim. The AJ should issue a new initial decision containing his findings 

and conclusions under USERRA and VEOA, and incorporating by reference the 

Board’s findings and conclusions on the appellant’s remaining claims, so that the 

appellant has a single appealable decision addressing all of his claims concerning 

his non-selection for the GS-6 Military Pay Technician position. See Bagunas v. 

 

3

 The AJ misstated the test for jurisdiction under 5 U.S.C. § 1221, but he did correctly 

state the element of exhaustion of OSC procedures. See IAF, Tab 11 at 4-5; Yunus v. 

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001) (the Board has 

jurisdiction over an appeal under 5 U.S.C. § 1221 if the appellant has exhausted his 

remedies before OSC and nonfrivolously alleges that he made a protected disclosure 

that contributed to the agency's decision to take or fail to take a personnel action). 
10

U.S. Postal Service, 92 M.S.P.R. 5, ¶ 20 (2002); Ryan v. Interstate Commerce 

Commission, 70 M.S.P.R. 17, 20 (1996). 

FOR THE BOARD: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C.