UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

YOLANDA P. ROACH,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

DA-3330-15-0610-I-1

DATE: November 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Stanley R. Smith, Killeen, Texas, for the appellant.

Jennifer Merkle, Esquire, Grand Prairie, Texas, for the agency.

John T. LeMaster, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied her request for corrective action under the Veterans Employment 

Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this 

one only when: the initial decision contains erroneous findings of material fact; 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant is a preference-eligible veteran currently employed with the 

agency as a GS-10 Safety and Occupational Health Specialist. Initial Appeal File 

(IAF), Tab 1 at 1, Tab 6 at 4, Tab 21 at 24. In March 2015, the agency announced 

a vacancy for the Safety and Occupational Health Manager (Environmental and 

Safety Compliance Administrator) position, GS-0018-12/13. IAF, Tab 10 at 49. 

The announcement was open to Federal Government employees nationwide and 

certain others, including “[p]reference eligibles or veterans who have been 

separated from the armed forces under honorable conditions after three years or 

more of active service.” Id. The appellant applied for the vacancy and was later 

notified that her application was reviewed but not referred to the selecting offic ial 

because she exceeded the age requirement for Federal law enforcement 

employment. IAF, Tab 2 at 7, Tab 10 at 34‐47. 

¶3 After learning that she was not selected, the appellant filed a VEOA 

complaint with the Department of Labor (DOL) alleging that she was denied her 

right to compete for the position under 5 U.S.C. § 3304(f). IAF, Tab 2 at 8-11. 

During the investigation, the agency informed DOL that, in the final steps of 
3

processing the appellant’s application, it discovered that the appellant’s 

application status was inadvertently changed to ineligible based on age 

restrictions for Federal law enforcement employment. IAF, Tab 7 at 57. The 

agency claimed that the change was incorrect and that the appellant was ineligible 

for consideration because she did not meet a time-in-grade requirement (52 weeks 

at a GS-11 position) for promotion to the GS-12 position. Id. On September 11, 

2015, DOL informed the appellant of the agency’s error and that her case was 

officially closed. IAF, Tab 2 at 12. 

¶4 On September 17, 2015, the appellant filed the instant VEOA appeal with 

the Board alleging a violation of her right to compete. IAF, Tabs 1-2. After 

filing her appeal, the agency informed her that the reason she was not selected for 

the position was her failure to meet the time-in-grade requirement. IAF, Tab 10

at 15. 

¶5 After conducting a hearing, the administrative judge denied the appellant’s 

request for corrective action under VEOA. IAF, Tab 42, Initial Decision (ID)

at 11. She found that the appellant failed to meet the time-in-grade requirement 

and that the agency’s having eliminated the appellant from consideration on those 

grounds was not an action that denied the appellant her right to compete. ID

at 10. She also found that the initial notification erroneously referenced the age 

requirement due to an administrative coding error that did not deny the appellant 

an opportunity to compete, as the agency’s initial determination was that the 

appellant was ineligible due to the time-in-grade requirement. Id. The appellant 

has filed a petition for review. Petition for Review (PFR) File, Tab 1. The 

agency has filed an opposition to the appellant’s petition. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The appellant argues on petition for review that the initial decision contains

an erroneous interpretation of law regarding the administrative judge’s 

application of 5 U.S.C. § 3304(f)(1) and an erroneous finding of fact regarding 
4

her eligibility for the vacancy. PFR File, Tab 1 at 4. She also argues that the 

agency engaged in a prohibited personnel practice. Id.

2

 

¶7 The appellant argues on review that the administrative judge erred in her 

interpretation of 5 U.S.C. § 3304(f)(1). Id. at 4, 11-12. That section provides

that: 

[p]reference eligibles or veterans who have been separated from the 

armed forces under honorable conditions after 3 years or more of 

active service 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. 

5 U.S.C. § 3304(f)(1). The appellant asserts she was denied this right to compete 

because the agency erroneously determined that she failed to meet the age 

requirement for Federal law enforcement employment. PFR File, Tab 1 at 11-12. 

¶8 We agree with the administrative judge’s finding that the appellant was 

afforded an opportunity to compete. As explained in the initial decision, record 

evidence demonstrated that the agency’s initial determination was that the 

appellant did not meet the time-in-grade eligibility requirement, but that a 

specialist incorrectly coded the reason for finding her ineligible , which resulted in 

the appellant receiving the notice regarding the age requirement. ID at 8, 10; 

IAF, Tab 10 at 15; Hearing Compact Disc (HCD) (testimony of M.M.). The 

appellant does not argue to the contrary on review. In making that eligibility 

determination, the agency did not violate the appellant’s veterans’ preference 

rights. See Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9 

(2000) (holding that VEOA does not exempt veterans from the eligibility criteria 

such as time-in-grade restrictions that would be applied to all candidates). The 

 

2

In her petition for review, the appellant also argues that the initial decision is based on 

an erroneous interpretation of 5 U.S.C. § 2108(3). PFR File, Tab 1 at 4. It is unclear 

what the appellant’s challenge is to the administrative judge’s interpretation of 5 U.S.C.

§ 2108(3). That section defines “preference eligible” and there was no dispute before 

the administrative judge, nor is there any dispute on review, that the appellant was 

entitled to veterans’ preference rights. 
5

agency then eliminated the appellant from further consideration based on her 

ineligibility. HCD (testimony of M.M.). The Board has held that an agency 

does not violate an individual’s veterans’ preference rights by eliminating her

from consideration because she is unqualified. Harellson v. U.S. Postal Service, 

113 M.S.P.R. 534, ¶ 11 (2010). 

¶9 Further, by virtue of the appellant’s application being accepted, processed, 

and reviewed thoroughly enough by the agency for it to ultimately determine that 

she was ineligible for the position, we agree with the administrative judge’s 

finding that the appellant was afforded her opportunity to compete. The 

erroneous notification informing the appellant that she was deemed ineligible due 

to her age has no bearing on the agency’s initial determination that the appellant 

lacked the required time-in-grade, and thus, did not interfere with the appellant’s 

opportunity to compete. Accordingly, we find no basis to disturb the initial 

decision in this regard.3 

¶10 The appellant also argues on review that the administrative judge erred in 

finding that she lacked the 52 weeks of service at the GS-11 level required to 

meet the eligibility requirement. PFR File, Tab 1 at 5, 12-13; see ID at 10. 

¶11 The vacancy announcement set forth the time-in-grade requirement, which 

must be met unless otherwise excluded by regulation. IAF, Tab 10 at 51; see

5 C.F.R.§ 300.604. Specifically, 5 C.F.R.§ 300.604(a) requires that candidates 

for advancement to a position at GS-12 and above, such as the position at issue 

here, must have completed a minimum of 52 weeks in positions no more than one 

 

3

The appellant also argues on review that the data-coding error and subsequent 

erroneous notification constituted harmful error. PFR File, Tab 1 at 9-12; see 5 U.S.C.

§ 7701(c)(2). The Board has jurisdiction over a harmful error claim in a VEOA appeal 

only when such claim is directly related to the appellant’s veterans’ preference. See 

Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18 (2006) (finding that an 

administrative judge erred when she decided a harmful error claim that was unrelated to 

the appellant’s veterans’ preference). Here, the data-coding error is unrelated to the 

appellant’s veterans’ preference. Accordingly, we find that the Board lacks jurisdiction 

to review the appellant’s harmful error claim. 
6

grade lower (or the equivalent) than the position to be filled. The administrative 

judge found that the appellant lacked the required 52 weeks because she only 

served in a GS-11 position for 3 months from February 8 to May 31, 2015. ID 

at 10. 

¶12 On review, the appellant challenges the administrative judge’s finding by 

claiming that she performed the duties of a GS-13 when she occasionally assumed 

the role of acting manager. PFR File, Tab 1 at 5. The appellant asserts that this 

experience, in addition to the 3 months during which she formally served 

in a GS-11 position, shows that she had acquired at least 52 weeks of experience 

at the required level. Id. at 5, 12‐13. 

¶13 We agree with the administrative judge’s finding that the appellant lacked 

the sufficient time-in-grade. The appellant’s time working as an acting manager 

at the GS-13 level cannot be credited for purposes of the time-in-grade 

requirement. See 5 C.F.R.§ 300.605(a) (stating that service while on detail is 

credited at the grade of the employee’s position of record, not the grade of the 

position to which detailed). The initial decision contains a thorough discussion of 

the hearing testimony and other record evidence, which forms the basis for the 

administrative judge’s finding that the appellant lacked the required 52 weeks at a 

GS-11 level. ID at 6-10. Thus, the record reflects that the administrative judge 

considered the evidence, drew appropriate inferences, and made reasoned 

conclusions. Id. We find no reason to disturb the administrative judge’s findings 

in this regard. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 

(1997) (finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). 

¶14 The appellant also argues on review that the agency engaged in a prohibited 

personnel practice. PFR File, Tab 1 at 4. However, because this appeal derives 

its jurisdiction from VEOA, the Board does not have jurisdiction to review the 
7

appellant’s prohibited personnel practice claim. See Goldberg v. Department of 

Homeland Security, 99 M.S.P.R. 660, ¶ 11 (2005) (stating that the Board cannot 

obtain jurisdiction over the appellant’s prohibited personnel practice claim 

through VEOA). 

¶15 Accordingly, we affirm the administrative judge’s initial decision denying 

the appellant’s request for corrective action. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information 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, and 11. 
8

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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board