                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2008-3255

                                WILLIAM B. JOLLEY,

                                                          Petitioner,

                                           v.

            DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

                                                          Respondent.


      William B. Jolley, of Brunswick, Georgia, pro se.

       Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director and Kirk T. Manhardt, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                        2008-3255


                                 WILLIAM B. JOLLEY,

                                                            Petitioner,

                                           v.

            DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

                                                            Respondent.


Petition for review of the Merit Systems Protection Board in AT3443080162-I-1.

                            _________________________

                            DECIDED: November 18, 2008
                            _________________________


Before SCHALL, FRIEDMAN, and BRYSON, Circuit Judges.

PER CURIAM.

                                        DECISION

      William B. Jolley petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) which denied his claim for corrective action brought pursuant

to the Uniformed Services Employment and Reemployment Rights Act of 1994

(“USERRA”).    Jolley v. Dep’t of Housing & Urban Dev., No. AT-3443-08-0162-I-1

(M.S.P.B. April 29, 2008). We affirm.
                                       DISCUSSION

                                             I.

       Mr. Jolley is a preference eligible veteran currently employed by the Department

of Housing and Urban Development (“HUD”). In 2003, he brought a claim in the United

States District Court for the Southern District of Georgia based on his non-selection for

various HUD positions for which he applied from 1994 until the date of the complaint.

One of these was the position of Program Advisor, GS-0301-15. Mr. Jolley alleged that

HUD had violated the Age Discrimination in Employment Act, 29 U.S.C. § 621–634

(“ADEA”) by not selecting him for any of the positions. HUD settled the claim with Mr.

Jolley on October 4, 2004. Jolley v. Jackson, No. 03-CV-39, slip op. at 1 (Oct. 6, 2004)

(“Settlement Agreement”). Pursuant to the Settlement Agreement, HUD paid Mr. Jolley

$60,000 and appointed him to a position as an operations specialist, GS-0301-15. Id. at

2. In return, Mr. Jolley agreed to “waive[] and release[] all claims arising from any facts .

. . against [HUD] through the effective date of this Agreement.” Id.

       On November 26, 2007, Mr. Jolley brought an MSPB appeal, alleging that his

non-selection for various positions, including the Program Advisor position, violated

USERRA.      For the positions at issue, HUD announced the vacancies via “dual

announcements.”     In the dual announcement procedure, HUD advertises a position

vacancy through a competitive examination listing, which is typically open to applicants

from the general public, and also through a merit promotion listing, which is open to

applicants already employed by the agency or applicants from outside the agency who

have “status” in the competitive service.         Veterans receive extra points in the

competitive process, thereby boosting their scores and making it more likely they will be




2008-3255                                    2
hired, but they do not receive such points in the merit promotion process. With respect

to the Program Advisor position, HUD made its dual announcement in 2002.

Subsequently, the competitive announcement vacancy was cancelled, and the position

was filled through the merit promotion announcement. Mr. Jolley argued before the

MSPB that the dual announcement system itself violates USERRA.

       The administrative judge (“AJ”) to whom Mr. Jolley’s appeal was assigned ruled

that HUD’s practice of using dual vacancy announcements did not violate USERRA.

Jolley v. Dep’t of Housing & Urban Dev., No. AT-3443-08-0162-I-1, slip op. at 2

(M.S.P.B. March 25, 2008). Further, the AJ determined that the Settlement Agreement

precluded Mr. Jolley from raising claims which accrued prior to October 4, 2004, and

that a collective bargaining agreement (“CBA”) precluded some of the post-2004 claims.

Id. The AJ’s initial decision became the final decision of the Board on April 29, 2008,

after Mr. Jolley declined to petition the Board for review of the initial decision. This

appeal followed.

                                            II.

       We have jurisdiction over Mr. Jolley’s appeal pursuant to 28 U.S.C. § 1295(a)(9)

(2006). As stated in 5 U.S.C. § 7703(c), we must affirm a 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.        See

Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). We

see no error in the decision of the Board in this case.




2008-3255                                    3
                                           III.

      Mr. Jolley argues that the use of dual announcements violates USERRA.

USERRA provides that a veteran “shall not be denied initial employment . . . on the

basis of [military service].” 38 U.S.C. § 4311(a) (2006). We have interpreted a violation

of USERRA to require “discriminatory animus”—in other words, a veteran must

establish he was treated in a harsher manner than were non-veterans. Sheehan v.

Dep’t of Navy, 240 F.3d 1009, 1014 n.3 (Fed. Cir. 2001). Mr. Jolley argues that dual

announcements violate USERRA because an agency can use the merit promotion list to

ignore the veteran’s preference and thereby manipulate the selection to avoid hiring a

veteran. He does not contend, however, that his non-selection was the result of bias

directed at him personally.

      Although we have not specifically addressed the use of dual announcements in

this context, we have evaluated the propriety of using such announcements in light of

the Veterans Employment Opportunities Act, Pub. L. No. 105-339, 112 Stat. 3182

(1998) (“VEOA”). As opposed to USERRA, which simply provides that veterans may

not be discriminated against, VEOA actually provides veterans a preference in hiring in

certain circumstances. It is through VEOA that veterans receive additional points in the

competitive hiring process.

      In Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007), we

held that the use of dual vacancy announcements does not violate VEOA. Mr. Joseph

was a preference-eligible veteran who applied for a paralegal position through both the

merit promotion and the competitive processes. Joseph, 505 F.3d at 1382. Although he

was the top-ranked applicant on the competitive list (which reflected his veteran’s




2008-3255                                   4
preference), he was only one of the top four candidates on the merit promotion list. Id.

Ultimately, the Commission hired someone who applied only via the merit promotion list.

Id.   Mr. Joseph alleged that he was denied his veteran’s preference because the

Commission used the merit promotion list to make the hire. Id. at 1383. We held that

dual announcements do not run afoul of VEOA because “an agency has the discretion

to fill a vacant position by any authorized method. 5 C.F.R. § 330.101; Sherwood v.

Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 10 (2001)” and the merit promotion

list is such a method. Id. at 1384 (internal quotations omitted).

       Likewise, such announcements do not violate USERRA.            USERRA requires

equal treatment for veterans, while VEOA actually provides for a veterans preference in

some circumstances. See, e.g., 5 U.S.C. §§ 3309–3312 (enumerating some forms of

preferential treatment for veterans). The merit promotion list places nonveterans and

veterans on equal footing, because it does not add preference points to any application.

Thus, it cannot be said that veterans are treated “more harshly than non-veterans”

through the use of dual announcements. Farenbacher v. Dep’t of Navy, 85 M.S.P.R.

500, 510 (2000), aff’d sub nom Sheehan, 240 F.3d 1009. “The fact that [veterans] were

not treated better than non-veterans does not show discrimination.” Id. Mr. Jolley

alleged no specific facts indicating dual announcements were utilized in a discriminatory

way. Therefore, it was not error for the Board to deny corrective action.

       Because we find dual announcements do not violate USERRA, we need not

address in depth whether the Settlement Agreement or the CBA preclude review of Mr.

Jolley’s USERRA claims. We note, briefly, however, that Mr. Jolley only specifically

alleges facts regarding the 2002 Program Advisor position. This non-selection was




2008-3255                                    5
covered by the Settlement Agreement, as it occurred before October 2004. We have

specifically acknowledged and enforced settlements of USERRA claims; thus, we find

unpersuasive Mr. Jolley’s argument that USERRA supersedes such contracts because

they “reduce, limit, or eliminate” USERRA rights. 38 U.S.C. § 4302. Although the

settlement does not mention USERRA, it does release “all claims arising from any facts

. . . through [2004].” Settlement Agreement at 2. We agree with HUD that the language

of the agreement indicates that HUD did not intend to subject itself to multiple

recoveries stemming from one non-selection. Therefore, Mr. Jolley’s contentions as to

the Program Advisor position are additionally barred by the Settlement Agreement.

                                             IV.

       Mr. Jolley also argues that the Board abused its discretion by failing to address

his motion to issue a subpoena requesting documents pertaining to all dual vacancy

announcements to which he responded from 1987 to the present. He also argues the

Board abused its discretion by failing to rule on his motion for sanctions, alleging that

HUD    did   not   provide    specifically   requested   documentation    regarding   dual

announcements to which he responded from 1994 to the present.

       The government responds that Mr. Jolley cannot meet his high burden of proving

an abuse of discretion and substantial harm or prejudice from the Board’s management

of discovery. Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988)

(“This court will not overturn the board on such matters unless an abuse of discretion is

clear and is harmful.”).   We agree. Mr. Jolley himself acknowledged that “the issue at

stake is a matter of interpretation of law and should not rest upon the individual personal

experiences or cases for validation.” Complaint at 11 (Nov. 21, 2007). Documentation




2008-3255                                     6
relating to specific dual announcements would not help Mr. Jolley prove that the dual

announcement procedure itself violates USERRA as a matter of law. Thus, Mr. Jolley

has not shown neither an abuse of discretion nor substantial harm or prejudice resulting

from the non-disclosure.

      For the foregoing reasons, the final decision of the Board is affirmed.




2008-3255                                  7
