UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANDREW J. STEWART,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DA-3330-21-0059-I-1

DATE: August 27, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jack Whitehead, Jr., Esquire, John-Ed L. Bishop, Esquire, and Joshua L. 

Davis, Esquire, Baton Rouge, Louisiana, for the appellant.

Kenneth Bork, Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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. Except as expressly

MODIFIED as to the reason why the appellant is not entitled to corrective action

on his claim of denial of a right to compete under 5 U.S.C. § 3304(f)(1), we

AFFIRM the initial decision.

BACKGROUND

The appellant, a preference-eligible veteran, is a GS-11 Engineering

Technician at the agency’s Federal Bureau of Prisons (BOP). Initial Appeal File

(IAF), Tab 1 at 1, 9, Tab 5 at 14-15, Tab 6 at 4, Tab 9 at 49. In July 2020, the

agency posted a vacancy announcement for a GS-12 Correctional Program

Specialist (Emergency Preparedness Officer) position. IAF, Tab 9 at 9. It is

undisputed that the vacancy announcement was open to current BOP employees

and certain applicants outside of its own workforce, i.e., military spouses, and

that the agency filled it using merit promotion procedures. IAF, Tab 5 at 4-5, 16,

Tab 9 at 4-5 & n.6, Tab 13 at 6. The appellant applied for the position, but he

received a notification stating that the agency determined he did not meet the

qualifications for the position. IAF, Tab 1 at 9, 13, Tab 5 at 18-19. On

October 1, 2020, he timely filed a VEOA complaint with the Department of Labor

(DOL) regarding his nonselection. IAF, Tab 5 at 7-10.

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After receiving a close-out letter from DOL dated October 28, 2020, the

appellant filed the instant appeal arguing that the agency’s failure to forward his

application to the selecting official violated his right to compete as a

preference-eligible applicant under 5 U.S.C. § 3304(f)(1). 2 IAF, Tab 1 at 1-2, 9,

13-14. 

The administrative judge issued an initial decision denying the appellant’s

request for corrective action under VEOA, finding that he failed to establish by

preponderant evidence that the agency denied him the opportunity to compete.

IAF, Tab 17, Initial Decision (ID) at 1, 7-8. Specifically, the administrative

judge found that the appeal was within the Board’s jurisdiction, the appellant was

a preference-eligible veteran, and the agency’s action occurred after

December 10, 2004. ID at 3. She further found that the agency provided the

appellant the right to compete because it evaluated his application on the same

basis as those of the other applicants. ID at 7.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response, and the appellant has replied. PFR

File, Tabs 3-4.

DISCUSSION OF ARGUMENTS ON REVIEW

To prevail on the merits of a VEOA appeal involving a veterans’ preference

claim,3 an appellant must prove by preponderant evidence that he is a preference

eligible or veteran who was separated from the armed forces under honorable

conditions after 3 years or more of active service; that the actions at issue took

place on or after the October 31, 1998 enactment date of VEOA for preference

eligibles or the December 10, 2004 enactment date of the Veterans’ Benefits

Improvement Act of 2004 for veterans covered by section 3304(f)(1); and that the

2

 The appellant expressly elected not to pursue a claim under 5 U.S.C. § 3330a(a)(1)(A)

that the agency violated other statutory or regulatory rights he might have as a

preference eligible. IAF, Tab 3 at 2-4, Tab 5, Tab 10 at 2 n.3.

3 The parties do not dispute, and we find no reason to disturb, the administrative judge’s

finding that the Board has jurisdiction over this appeal. ID at 2-4. 

3
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. See Oram v. Department of the Navy, 2022 MSPB 30,

¶ 6 (setting forth an appellant’s jurisdictional burden); see also Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 209, ¶¶ 10, 19 (2010) (reflecting

that an appellant’s burden to prove the merits of his VEOA claim is preponderant

evidence). Here, the parties do not dispute, and we find no reason to disturb, the

administrative judge’s findings that the appellant is preference eligible and the

nonselection took place after VEOA’s enactment. ID at 3-4; IAF, Tab 1 at 9,

Tab 5 at 8-9, Tab 6 at 4-5, Tab 9 at 9-13; see 5 U.S.C. § 2108(3) (defining

“preference eligible” for purposes of Title 5). Therefore, the remaining issue is

whether the agency’s action violated his right to compete. See Oram,

2022 MSPB 30, ¶ 6.

We agree with the administrative judge’s conclusion that the appellant was not

entitled to any corrective action under VEOA, however, we modify the initial

decision as to the legal basis for this determination.

Under 5 U.S.C. § 3304(f)(1), preference eligibles and certain veterans “may

not be denied the opportunity to compete for vacant positions for which the

agency making the announcement will accept applications from individuals

outside its own workforce under merit promotion procedures.” The

administrative judge concluded that the agency did not violate the appellant’s

right to compete under 5 U.S.C. § 3304(f)(1) because “[t]he undisputed record

shows the agency evaluated the appellant’s application on the same basis as the

other applicants’ and, based on his score, did not refer the appellant for further

consideration.” ID at 7. On review, the appellant reiterates his argument that the

right to compete affords preference eligibles “the [r]ight to be [c]onsidered [and]

requires [p]reference-[e]ligibles to be submitted to the selecting official(s).” PFR

File, Tab 1 at 5. We find this argument unavailing because, as explained below,

4
the right to compete does not extend to the appellant because he was already a

Federal employee. We modify the initial decision accordingly.

In Oram, 2022 MSPB 30, ¶ 17, the Board found that, as a matter of law,

current Federal employees are not entitled to corrective action based on a claim of

denial of an opportunity to compete under 5 U.S.C. § 3304(f)(1). In reaching this

decision, the Board relied on the U.S. Court of Appeals for the Federal Circuit’s

decision in Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015).

In Kerner, after reviewing the text and legislative history of the VEOA and its

precursor, the Veterans’ Preference Act, the Federal Circuit reasoned that nothing

in the statutory language, the legislative history, or case law supported a

presumption that the “opportunity to compete” provision in 5 U.S.C. § 3304(f)

applies in instances in which an applicant is already employed in the Federal civil

service. Kerner, 778 F.3d at 1338. The Federal Circuit reasoned that the intent

of the subject provision was to assist veterans in obtaining an initial appointment

to the Federal service, not subsequent promotions or other intra-agency

movement. Id. The court concluded that, because veterans currently employed in

a competitive service position are already “eligible to apply” to merit promotion

vacancies, such applicants could not have been the intended beneficiaries of

section 3304(f). Id. at 1338-39. Here, because it is undisputed that the appellant

was already a Federal employee, 5 U.S.C. § 3304(f) was inapplicable to him as a

matter of law. See Oram, 2022 MSPB 30, ¶¶ 13, 17 (citing Kerner, 778 F.3d

at 1338-39). Because the right to compete does not extend to the appellant’s

application for the Correctional Program Specialist position, it is unnecessary to

address the parties’ argument regarding what such a right entails. PFR File,

Tab 1 at 5-10, Tab 3 at 7-11, Tab 4.

Accordingly, we affirm as modified the initial decision, still denying the

appellant’s request for corrective action under VEOA.

5
NOTICE OF APPEAL RIGHTS4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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: 

4

 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
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

7
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

8
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.5 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. 

5

 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 jurisdiction.

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

132 Stat. 1510. 

9
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

10