        NOTE: This opinion is nonprecedential.

 United States Court of Appeals
     for the Federal Circuit
             __________________________

        ROBERT DONNELL DONALDSON,
                 Petitioner,

                          v.
   DEPARTMENT OF HOMELAND SECURITY,
               Respondent.
             __________________________

                     2012-3106
             __________________________

   Petition for review of the Merit Systems Protection
Board in consolidated case nos. DC3330110367-I-1,
DC4324110475-I-1, and DC3330110637-I-1.
             ___________________________

               Decided: October 4, 2012
             ___________________________

    ROBERT DONNELL DONALDSON, of Landover, Mary-
land, pro se.

    JOSHUA E. KURLAND, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States De-
partment of Justice, of Washington, DC, for respondent.
With him on the brief were STUART F. DELERY, Acting
DONALDSON   v. DHS                                     2


Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and SCOTT D. AUSTIN, Assistant Director.
              __________________________

   Before NEWMAN, CLEVENGER, and MOORE, Circuit
                     Judges.
   PER CURIAM.

     Robert Donnell Donaldson (“Donaldson”) seeks re-
view of the final decision of the Merit Systems Protec-
tion Board (“Board”) which sustained the decisions of
an Administrative Judge in three individual appeals
brought by Donaldson. In the appeals, Donaldson
alleged violations of his rights under the Veterans
Employment Opportunities Act of 1998 (“VEOA”) and
the Uniformed Services Employment and Reemploy-
ment Rights Act of 1994 (“USERRA”). The Administra-
tive Judge denied Donaldson’s claims of violation in
each of the three appeals. The Board consolidated the
three appeals for decision when Donaldson petitioned
for review of the Administrative Judge’s decisions, and
sustained the rejection of Donaldson’s alleged statutory
violations. Donaldson v. Dep’t of Homeland Security,
Docket. Nos. DC-3330-11-0367-I-1, DC-4324-11-0475-I-
1, DC-3330-11-0637-I-1 (March 30, 2012). We have
jurisdiction under 28 U.S.C. 1295 (a)(9).      We must
affirm the Board’s final decision unless we determine
that it is (1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.      5 U.S.C. § 7703(c); Kewley v.
Dep’t of Health & Human Servs., 153 F.3d 1357, 1361
(Fed. Cir. 1998). We affirm.
3                                      DONALDSON   v. DHS


                            I

    As the parties are familiar with the facts of this
case, we need recite here only the facts necessary to
frame and decide the issues Donaldson presents on
appeal.

     Donaldson is a 30% disabled veteran entitled to cer-
tain rights under VEOA and USERRA. He applied for
the advertised position of Marine Transportation Spe-
cialist, GS 12/13, with the U.S. Coast Guard in Wash-
ington, D.C. The Department of Homeland Security
(“agency”) interviewed each of the best qualified appli-
cants, including Donaldson. The agency determined
that Donaldson lacked the technical expertise necessary
to succeed at the position.

    As a result of his veteran’s preference, Donaldson
was number one on the certificate of eligibles, but
nevertheless the agency did not select him for the
vacancy. Instead, the selecting official submitted a
request to the agency’s Human Resources Department
to pass over Donaldson in favor of non-veteran appli-
cant, on the ground that Donaldson was not qualified
for the position. The Human Resources Department
rejected the request, noting that a 30% disabled veteran
need be only minimally qualified, and therefore must be
selected over non-veterans. The Human Resources
Department further advised the selecting official of an
option: not to select Donaldson and request permission
to re-advertise the opening. Consequently, the agency
did not select Donaldson, cancelled the vacancy an-
nouncement to which Donaldson had replied, re-
advertised the position, and selected a non-veteran for
the vacancy.
DONALDSON   v. DHS                                    4


    On February 9, 2011, Donaldson filed two appeals
with the Board. In one appeal, he argued that the
agency violated his veterans’ preference rights under
VEOA by not selecting him for the Marine Transporta-
tion Specialist job. Because Donaldson had not ex-
hausted his administrative remedies with the
Department of Labor before filing his VEOA suit, the
Board dismissed his VEOA suit for want of jurisdiction.
On May 20, 2011, after exhausting his administrative
remedies, Donaldson re-filed his VEOA suit with the
Board. Donaldson’s second action before the Board
asserted that the agency failed to select him for the
vacancy on the basis of his prior performance of mili-
tary service, in violation of USERRA.

     A hearing was conducted on Donaldson’s USERRA
complaint on June 23, 2011. To prevail on his USERRA
suit, Donaldson was obligated to prove, by a preponder-
ance of the evidence, that his military experiences were
a substantial or motivating factor in the agency’s deci-
sion not to select him. See 38 U.S.C. § 4311(a). At the
hearing, agency officials testified that Donaldson was
passed over for the job because he was not qualified,
citing statements Donaldson made during his interview
that he did not have the expertise for the job and their
own independent assessments of his qualifications for
the job. Donaldson however testified that he believed
his former military service was a motivating factor in
the agency’s decision to pass him over. The administra-
tive judge weighed the conflicting testimony and found
the agency’s testimony more credible and consistent
with the record, which included notes taken during the
Donaldson’s interview.      The Administrative Judge
concluded that the record failed to show evidence that
“the agency has either expressed hostility towards or
engaged in a conspiracy against military members
5                                      DONALDSON   v. DHS


protected by USERRA” and “the credible evidence
showed that, rather than his military status, the appel-
lant’s inexperience in commercial maritime matters
along with his limited experience in drafting regula-
tions and providing technical advice on issues related to
the manning and training of personnel working on
commercial vessels was his downfall.” Consequently,
the Administrative Judge ruled on July 22, 2011, that
Donaldson failed to sustain his claim for relief under
USERRA.

    On July 29, 2011, the Administrative Judge ruled
on Donaldson’s re-filed VEOA case. Donaldson alleged
that the agency’s actions in passing him over violated
his procedural rights under 5 U.S.C. § 3318 and his
right    to   compete     for   the   position    under
5 U.S.C. § 3304(f)(1).   As for his procedural rights,
Donaldson argued that the agency erred in not giving
him notice of its attempt to pass him over internally to
select non-veterans for the job. The Administrative
Judge rejected this argument because the relevant
statute, 5 U.S.C. § 3318(b), provides for notice to the
veteran applicant if the agency seeks permission from
the Office of Personnel Management (“OPM”) to pass
over a veteran with preference, and here the agency
never sought such permission from OPM. The Admin-
istrative Judge held that the right-to-compete statute
did not include a right to win the competition, but
instead guaranteed a right to be considered on the
merits. Reasoning that the agency here afforded that
right to Donaldson, the Administrative Judge rejected
Donaldson’s second VEOA claim. Donaldson sought
review before the full Board.
DONALDSON   v. DHS                                      6


                            II

     The full Board minimally reviewed the decision of
the Administrative Judge in the USERRA and VEOA
cases. As for the USERRA appeal, the full Board
agreed with the Administrative Judge that Donaldson
failed to show that his military status was a substantial
or motivating factor in the agency’s decision not to
select him for the job. Citing Abell v. Dep’t of the Navy,
343 F.3d 1378 (Fed. Cir. 2003), the full Board held that
so long as the agency ranked Donaldson on the certifi-
cate of eligibles and gave him the opportunity to com-
pete for the position, its decision to cancel the vacancy
announcement rather than offer him the position did
not violate his VEOA rights.         The full Board also
rejected new arguments made by Donaldson regarding
the re-advertising of the position and the selection of a
non-veteran, Roger Henderson.          The rejection was
based on Donaldson’s failure to raise the new argu-
ments before the close of the record in the two cases,
even though Donaldson was aware of the facts of Hen-
derson’s selection before close of the record. The full
Board also rejected Donaldson’s argument that it erred
by not consolidating Donaldson’s two appeals challeng-
ing the agency’s action on the re-advertisement with
the three initial appeals.

                           III

    Donaldson timely petitioned for review in this
court. We greet his arguments under our standard of
review, stated above, and we conclude for the reasons
that follow that the Board committed no error in reject-
ing Donaldson’s requests for corrective action under
VEOA and USERRA, or in declining to consider
7                                      DONALDSON   v. DHS


Donaldson’s untimely arguments and to consolidate the
other two appeals.

    Donaldson has filed extensive pro se briefs with this
court, and the agency has responded. Donaldson makes
three primary arguments. 1 First, he reasserts violation
of his VEOA rights by the agency for not having notified
him that the selecting official sought internal permis-
sion to pass him over and select a non-veteran appli-
cant. He also argues that his VEOA rights were
violated when an agency employee allegedly tried to
discourage him from applying for the advertised posi-
tion. Donaldson further argues that he was subjected
to retaliation for having made a protected disclosure,
with the retaliatory act being the hiring of Roger Hen-
derson for the position. This argument relates to the
Board’s refusal to consider the arguments based on
Henderson’s hiring, because the arguments had not
been timely raised before the Board.             Finally,
Donaldson argues again that the Board erred in decid-
ing his appeals “piecemeal” when it did not consolidate
the two appeals challenging the re-advertisement with
the previous three appeals. We consider Donaldson’s
arguments in turn.

    1   Donaldson’s briefs do not directly challenge the
Board’s conclusion that he failed to sustain his burden
of proof on the USERRA appeal, which argued that his
military status was the reason for the agency’s adverse
action. Because Donaldson is appearing without coun-
sel, we will treat him as having indirectly challenged
the Board’s USERRA decision. Like the Board, we
conclude that the evidence of record fails to show that
the agency acted out of animus towards Donaldson
because of his military status. Instead, substantial
evidence shows the agency acted as it did because it
deemed him not qualified for the job. The Board’s
denial of remedial action under USERRA is correct.
DONALDSON   v. DHS                                        8


                             A

    As for Donaldson’s prime VEOA challenges, we
agree with the Board that 5 U.S.C. § 3318(b) only
applies when an agency seeks permission from OPM to
pass over a veteran with veterans’ preference. Because
the agency here did not seek OPM approval, the agency
was not obligated to notify Donaldson of its internal
actions. We note, in addition, that Donaldson has not
shown harm to him from failure of the agency to give
him notice of its internal proceedings.             Indeed,
Donaldson became aware of the agency’s actions and
brought his basic VEOA claim because he was not
awarded the job. We nevertheless treat Donaldson as
making a broader VEOA challenge, namely that the
agency should not be able to cancel a job announcement
as a way of denying a veteran his right to a job when he
is sufficiently qualified to be listed on the certificate of
eligibles, as he was in this case. We thus understand
Donaldson to argue that where an agency cancels a job
announcement and re-advertises the job as a means of
avoiding the appointment of the eligible veteran, it
violates the veteran’s VEOA rights. 2

   Donaldson’s broader VEOA challenge is precluded
by the decision of this court in Abell v. Dep’t of the

    2   Donaldson’s separate VEOA argument that an
agency employee sought to discourage him from apply-
ing for the job seems connected to the challenge he
made before the Board that his right to compete under
5 U.S.C.§3304(f)(1) was violated in this case. As the
Board found, Donaldson was afforded the right to be
considered on the merits, regardless of whether an
agency employee sought to convince him not to compete.
Further, Donaldson’s allegation that an agency em-
ployee tried to dissuade him from applying for the job is
not borne out on the record before us.
9                                        DONALDSON   v. DHS


Navy, 343 F.3d 1378 (Fed. Cir. 2003), for the reasons we
explain below. Indeed, Mr. Donaldson recognizes as
much, as he argues in his brief that Abell should be
overruled.

     Like Donaldson, Barry Abell was on a certificate of
eligibles for an advertised job as a result of his veterans’
preference. The agency interviewed Abell along with
others including applicants who did not have veterans’
preference. The agency decided that it wanted to pass
over Abell in favor of other candidates, because it
considered Abell not qualified for the position and
lacking necessary experience. As in this case, the
agency in Abell did not seek OPM approval to pass the
veteran over; instead, as here, it sought permission
within the agency to do so, and like here, the selecting
official was told that the vacancy could be cancelled and
readvertised as a way of avoiding selection of Abell. In
the end, the agency cancelled the vacancy without
selection of Abell, thus effectively passing him over.
The facts in Abell do not relate whether the agency
subsequently re-advertised the position and selected a
non-veteran over a qualified veteran with preference.
Abell sought relief under VEOA with his suit to the
Board. The Board rejected his claim, and Abell ap-
pealed to this court.

    Abell argued first that the agency violated his
VEOA rights under 5 U.S.C. § 3318(b) by not notifying
him of its intention to pass him over. We held, as we do
in this case, that the notification rights only apply when
pass over permission is sought from OPM. Abell’s
broader challenge was that the agency violates VEOA
when it cancels a job vacancy announcement for the
purpose of passing over a preference eligible veteran
who otherwise would get the job.          Donaldson finds
DONALDSON   v. DHS                                    10


himself in the same predicament as Abell. Here, there
can be no question that the agency avoided hiring
Donaldson on purpose by withdrawing the job vacancy:
the same was true in Abell.

    We held in Abell that an agency is “not required to
hire a preference eligible veteran, if, as was the case
here, it does not believe that the candidate is qualified
or possesses the necessary experience.” 343 F.3d at
1384. We concluded that the agency’s decision not to
hire Abell and to cancel the job announcement was
based on a good faith reason supported by the record,
and did not violate Abell’s VEOA rights.

    The facts in this case are not materially different
from those in Abell. Here, the agency intentionally
passed Donaldson over by refusing to hire him and by
cancelling the vacancy for which he had applied. The
agency did so, as the Board found, and as the record
amply supports, because it deemed Donaldson to lack
the experience necessary to do the job. The same good
faith reason for the blatant pass over of Donaldson
exists here, and we are bound by precedent to conclude
that the agency did not violate Donaldson’s VEOA
rights. The fact that the agency here proceeded to re-
advertise the job and again pass Donaldson over does
not afford Donaldson a remedy in this case. Indeed, he
has challenged the Board’s actions on the re-
advertisement in two separate appeals to the Board.
The consequences of the re-advertisement and job
award to Roger Henderson are not before us.

    We thus affirm the Board’s final decision that on
the record before us Donaldson has not sustained his
claim to violation of his VEOA and USERRA rights.
11                                      DONALDSON   v. DHS


                            B

    Donaldson seeks to present a whistleblower cause
of action on appeal to this court. He asserts that his
complaint to the Department of Labor that the agency
had violated his VEOA rights is a protected disclosure,
and that the subsequent hiring of Roger Henderson was
an act of reprisal against Donaldson for having made
the protected disclosure. Whether Donaldson’s whistle-
blower contention has merit is not before us, because,
as the Board found, a key part of the factual underpin-
ning of the claim — the circumstances of Henderson’s
hiring — was not before the Board. Donaldson failed to
bring the necessary facts forward to support his claim
before the record closed. The Board thus declined to
consider Donaldson’s new whistleblower complaint, and
we cannot conclude that the Board abused its discretion
in refusing to consider arguments not supported by the
record before it. Furthermore, although Donaldson may
be correct that his complaint to the Department of
Labor is a protected disclosure, no finding of such exists
in the record. Nor has the agency been given an oppor-
tunity to show that the alleged act of reprisal would
have been taken notwithstanding the protected disclo-
sure. In short, the basis on which a violation of
Donaldson’s whistleblower rights might be shown has
yet to be created on a factual record. For that reason,
we dismiss Donaldson’s hypothetical whistleblower
contention without reaching its merits. As the agency
notes in its brief, Donaldson brought two appeals con-
cerning the propriety of Henderson’s selection.

                            C

    As before the Board, Donaldson here argues that
the Board committed reversible error by not consolidat-
DONALDSON   v. DHS                                    12


ing his two appeals concerning the re-advertisement
and appointment of Henderson with the three appeals
the Board did consolidate. The Board possesses wide
discretion in determining how best to manage its
docket. Because the record before the Board in the
three consolidated appeals did not contain the factual
information necessary to adjudicate the two additional
appeals, the Board properly declined to grant
Donaldson’s request for consolidation. Furthermore,
the Board has since decided adversely to Donaldson the
two appeals for which Donaldson here seeks consolida-
tion. Donaldson is free to pursue review of the deci-
sions in those two appeals, and no purpose would be
served by remanding this case to the Board for pur-
poses of consolidating two decided appeals with the
three appeals already decided and reviewed here.

    We have carefully reviewed the arguments pre-
sented by Donaldson and conclude that the Board did
not err in sustaining the denial of his claims for relief
under VEOA and USERRA. We therefore affirm the
final decision of the Board.


                     AFFIRMED

                         COSTS

   No costs.
