UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KARL MUEGO,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

PH-3330-22-0069-I-1

DATE: August 16, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Darius Rohani-Shukla, Esquire, and Debra D’Agostino, Esquire, 

Washington, D.C., for the appellant.

Channah S. Broyde, Esquire, Philadelphia, Pennsylvania, for the agency.

Karen Modesta Barefield, Esquire, Arlington, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

granted the appellant’s request for corrective action in his Veterans Employment 

Opportunities Act (VEOA) appeal. For the reasons discussed below, we GRANT 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the agency’s petition for review and VACATE and REVERSE the initial decision, 

finding that the appellant was not entitled to corrective action under VEOA.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a preference eligible employed with another Federal agency, 

applied for a position with the responding agency in this appeal. Initial Appeal 

File (IAF), Tab 8 at 159-60, 188, 215. The agency accepted applications from 

outside its workforce and used merit promotion procedures to fill the vacancy. 

Id. at 30, 277. The agency did not include the appellant on its initial certificate of 

eligibles for the vacancy based on its determination that he did not meet the 

position’s specialized experience requirements. Id. at 76-77. After the agency 

informed him of this determination, the appellant filed a complaint with the 

Veterans’ Employment and Training Service (VETS) alleging that the agency’s 

determination constituted a veterans’ preference issue. Id. at 173-75. 

¶3 In response to the appellant’s VETS complaint, the agency reassessed the 

appellant’s application, determined that he did meet the specialized experience 

requirements for the position, and amended the certificate of eligibles to include 

him. Id. at 67, 184-85. However, the agency did not refer the appellant’s 

application to any hiring manager or selecting official for consideration. IAF,

Tab 20, Hearing Recording (testimony of the human resources liaison). The 

appellant was informed of his nonselection for the position and filed a second 

VETS complaint.

2

IAF, Tab 1 at 7-10. VETS issued the appellant a close-out 

letter, IAF, Tab 8 at 66, and the appellant timely filed an appeal with the Board, 

IAF, Tab 1.

After holding a hearing, the administrative judge granted the appellant’s 

request for corrective action, finding that the agency violated his right to compete 

 

2 VETS previously issued the appellant a letter stating that his first complaint was being 

closed as prematurely filed and informing him that he could file a new complaint after a 

selection had been made. IAF, Tab 8 at 16
3

as a preference eligible for a vacancy for which it was accepting applications 

outside its workforce under 5 U.S.C. § 3304(f)(1). IAF, Tab 21, Initial Decision

(ID) at 12-13. The administrative judge thus ordered the agency to reconstruct 

the hiring action for the vacancy announcement. ID at 13. The agency filed a 

petition for review, to which the appellant has responded. Petition for Review 

File, Tabs 2, 4.

The appellant was not entitled to corrective action under 5 U.S.C. § 3304(f)(1).

¶4 The Board’s regulations reserve to it the authority to consider any issue in 

an appeal before it. McClenning v. Department of the Army, 2022 MSPB 3, ¶ 16; 

5 C.F.R. § 1201.115(e). Thus, although not raised by the agency, we exercise our 

authority to consider whether the administrative judge erred by granting 

corrective action.

¶5 In Kerner v. Department of the Interior, 778 F.3d 1336, 1338-39 (Fed. Cir. 

2015), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) 

concluded, based on a review of the statute’s text and legislative history, that 

5 U.S.C. § 3304 does not apply when a veteran or other preference-eligible 

applicant is already employed in the Federal civil service. The Federal Circuit 

found instead that VEOA is intended to assist veterans in gaining access to 

Federal employment, not to give veterans preference in merit promotions. 

Kerner, 778 F.3d at 1338. Because the appellant was a Federal employee when 

he applied for the agency position, IAF, Tab 8 at 188, 215, according to Kerner, 

he was not entitled to an opportunity to compete for that position under 5 U.S.C. 

§ 3304(f)(1). Thus, the agency did not commit a VEOA violation, and the 

administrative judge erred by granting corrective action.
4

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). 

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: 

 

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.
5

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. 

(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 
6

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 

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 
7

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.4 The court of appeals must receive your petition for 

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. 

 

4

The original statutory provision that provided for judicial review of certain 

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

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 jurisd iction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
8

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