UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GLORIA J. SANFORD,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

DE-3443-17-0175-I-1

DATE: January 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gloria J. Sanford, Littleton, Colorado, pro se.

Nanette Gonzales, Esquire, Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and 

did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed her nonselection appeal for lack of jurisdiction. Generally, we grant 

petitions such as this one only in the following circumstances: the initial decision 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

contains erroneous 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 and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 In October 2016, the agency posted a vacancy announcement for a GS-14 

Supervisory Accountant. Initial Appeal File (IAF), Tab 11 at 153-62. To be 

qualified, an applicant was required to “possess one year of specialized 

experience equivalent to at least the GS-13 level.” Id. at 154. Additionally, 

applicants were also required to meet a basic education requirement in one of two

ways. Id. Under “Method 1” an applicant could meet the education qualification 

through a “[d]egree in accounting or a degree in a related field . . . that included 

or was supplemented by 24 semester hours in accounting.” Id. at 154. 

¶3 More relevant to the instant appeal, under “Method 2,” an applicant could 

meet the education qualification through “at least 4 years of experience in 

accounting, or an equivalent combination of accounting experience, college -level 

education, and training that provided professional accounting knowledge.” Id. 

Under Method 2, an applicant’s background also had to include 

either (1) “[24] semester hours in accounting or auditing courses of appropriate 

type and quality,” (2) “[a] certificate as Certified Public Accountant or a Certified 

Internal Auditor,” or (3):
3

Completion of the requirements for a degree that included substantial 

course work in accounting or auditing, e.g., 15 semester hours, but 

that does not fully satisfy the [aforementioned] 24-semester-hour 

requirement, provided that (a) the applicant has successfully worked 

at the full-performance level in accounting, auditing, or a related 

field, e.g., valuation engineering or financial institution examining; 

(b) a panel of at least two higher level professional accountants or 

auditors has determined that the applicant has demonstrated a good 

knowledge of accounting and of related and underlying fields that 

equals in breadth, depth, currency, and level of advancement that 

which is normally associated with successful completion of the 

4-year course of study [previously] described; and (c) except for 

literal nonconformance to the requirement of 24 semester hours in 

accounting, the applicant’s education, training, and experience fully 

meet the specified requirements. 

Id. at 154, 156. 

¶4 The appellant applied for the Supervisory Accountant vacancy, indicating 

that she met the education qualification through Method 2. IAF, Tab 11 at 148. 

The appellant indicated that, of the three ways in which such an applicant could 

satisfy the added background requirement, she satisfied the third. Id. In other 

words, using the labels from above, the appellant indicated that her background 

included the following: 4 years of experience in accounting or a related field, 

(3) completion of substantial course work that did not total 24 hours, 

(a) successful work at the full performance level, (b) approval from an 

appropriate panel of higher level professionals, and (c) education, training, and 

experience that met specified requirements. Id. 

¶5 After reviewing the appellant’s application, the agency concluded that she 

was not qualified for the vacancy. E.g., id. at 35-38, 52. Specifically, the agency 

determined that the appellant did not satisfy requirement (a) because although she 

had experience as a GS-13, she had not worked at the full performance level of 

the vacancy at issue, GS-14. E.g., id. at 52. The agency also concluded that the 

appellant did not satisfy requirement (c) because she lacked the necessary 

specialized experience. Id.
4

¶6 The appellant filed the instant Board appeal, alleging that she is qualified 

for the Supervisory Accountant vacancy. IAF, Tab 1 at 5. She again pointed to 

her prior GS-13 experience and alleged that she met the qualifications through 

Method 2, described above. IAF, Tab 10 at 4-6. The administrative judge 

responded to the appeal by issuing an order that explained the limited 

circumstances in which the Board has jurisdiction over a nonselection and 

instructing the appellant to meet her jurisdictional burden. IAF, Tab 2 at 2 -6. 

After both parties responded to the order, the administrative judge issued an 

initial decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 18, 

Initial Decision (ID). He found that the appellant failed to prove or even 

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

¶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 11-12.

¶8 On review, the appellant summarily asserts that “[t]here is no requirement 

that an obstruction of Justice must go before the Office of Special Counsel prior 

to the [Board]. This as I stated [below] was an obstruction of justice.” PFR File, 

Tab 1 at 4. The appellant also alleges that the administrative judge was biased, 

and she requests that a new administrative judge be assigned to her appeal. PFR 

File, Tab 1 at 4, Tab 12 at 4-5. We are not persuaded.

¶9 The Board’s jurisdiction is limited to those matters over which it has been 

given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems 

Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have 

direct jurisdiction over an employee’s nonselection for a vacant position. E.g.,

Gryder v. Department of Transportation, 100 M.S.P.R. 564, ¶ 9 (2005). 

However, there are some limited circumstances in which an appellant may 

otherwise establish jurisdiction in an appeal involving her nonselection. For 

example, an appellant may challenge her nonselection in the context of an 

individual right of action (IRA) appeal. Id.; see Linder v. Department of Justice, 
5

122 M.S.P.R. 14, ¶ 6 (2014) (recognizing that the Board has jurisdiction over an 

IRA appeal if an appellant exhausts her administrative remedies before the Office 

of Special Counsel and makes nonfrivolous allegations that (1) she made a 

protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in 

protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); 

and (2) the disclosure or protected activity was a contributing factor in the 

agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. 

§ 2302(a)).

¶10 The administrative judge recognized the limited circumstances in which an 

appellant may establish the Board’s jurisdiction over her nonselection. IAF, 

Tab 2 at 2-6. Among other things, he noted the aforementioned exception, where 

the Board may have jurisdiction over a nonselection if an appellant alleges 

improper retaliation covered by 5 U.S.C. § 2302(b). Id. at 5-6. The 

administrative judge indicated that, if the appellant responded by indicating that 

she wished to pursue any such claim, he would provide additional notice to 

further explain her burden. Id. at 6. 

¶11 In her timely response, the appellant presented extensive argument and 

evidence concerning her qualifications, but no arguments implicating any of the 

avenues for Board jurisdiction recognized by the administrative judge. 2 IAF, 

 

2 We recognize that the record does include indications that the appellant is entitled to 

veterans’ preference. IAF, Tab 1 at 1. However, none of her allegations appear to 

implicate the Veterans Employment Opportunities Act of 1998 (VEOA). See generally 

Piirainen v. Department of the Army, 122 M.S.P.R. 194, ¶ 8 (2015) (recognizing the

two types of VEOA claims over which the Board has jurisdiction—claims involving an 

improper denial of a right to compete and claims involving a violation of a statute or 

regulation relating to veterans’ preference); Miller v. Federal Deposit Insurance 

Corporation, 121 M.S.P.R. 88, ¶¶ 15-18 (2014) (recognizing that 38 U.S.C. § 4214

exempts preference eligibles from minimum education requirements in some limited 

circumstances, but never in the case of a GS-14 level position), aff’d, 818 F.3d 1361

(Fed. Cir. 2016); Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9 

(2000) (recognizing that nothing in VEOA exempts covered veterans from meeting 

minimum qualification standards of vacant positions). The appellant’s allegations also 

contain nothing that could be reasonably construed as a Uniformed Services 
6

Tab 10. Later, in an untimely submission, the appellant invoked 

sections 2302(b)(1)-(13), but she presented no corresponding allegations. IAF, 

Tab 15 at 4-6. She simply stated that “Under 5 U.S.C. § 2302(b)(1)-(b)(13) an 

Agency may not deceive or willingly obstruct any person from competing for 

employment.” Id. at 4, 6. The administrative judge found that this late argument 

did not change the outcome. ID at 3. Among other things, he correctly noted that 

prohibited personnel practices are not directly appealable to the Board. Id.; see

Penna v. U.S. Postal Service, 118 M.S.P.R. 355, ¶ 13 (2012). To the extent that 

the appellant’s petition for review suggests otherwise, we are not persuaded. 

¶12 The appellant’s argument throughout this appeal has been that the agency 

erred in finding that she did not meet the minimum requirements of the 

Supervisory Accountant vacancy. IAF, Tab 1 at 5, Tab 8 at 4-5, Tab 10 at 4-7, 

Tab 12 at 4-6. Her mere citation to sections 2302(b)(1)-(13) during one of her 

iterations of that same argument, in a context unrelated to the protections 

afforded by section 2302(b), is unavailing. See IAF, Tab 15 at 4-6. It did not 

establish jurisdiction or even amount to a nonfrivolous allegation. See 5 C.F.R. 

§ 1201.4(s) (defining a nonfrivolous allegation as “an assertion that, if proven, 

could establish the matter at issue” and recognizing that “[a]n allegation generally 

will be considered nonfrivolous when, under oath or penalty of perjury, an 

individual makes an allegation that is more than conclusory; is plausible on its 

face; and is material to the legal issues in the appeal”). Moreover, the appellant’s 

allegations did not trigger the administrative judge’s offer to provide further 

information about her burden upon indication that she intended to pursue one of 

 

Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. 

§§ 4301-4335) (USERRA) claim. See generally Clavin v. U.S. Postal Service, 

99 M.S.P.R. 619, ¶ 5 (2005) (recognizing the two types of USERRA claims over which 

the Board has jurisdiction—claims involving an agency’s failure to meet its 

reemployment obligations following an employee’s absence due to uniformed service 

and claims of discrimination involving uniformed service). If the appellant meant to 

challenge the nonselection as a claim under VEOA or USERRA, she may file a separate 

appeal on that basis. We make no finding as to whether the VEOA appeal would be 

deemed timely.
7

the specific exceptions where the Board may have jurisdiction over her

nonselection. IAF, Tab 2 at 6. Therefore, we discern no error in the 

administrative judge’s dismissal for lack of jurisdiction. 

¶13 Although we have considered the appellant’s allegations of bias and 

improper conduct by the administrative judge, PFR File, Tab 1 at 4, Tab 12 

at 4-5, we find that they generally reflect a misunderstanding of the Board’s 

jurisdictional limitations and adjudicatory processes. They do not overcome the 

presumption of honesty and integrity that accompanies administrative 

adjudicators. See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 

(1980). 

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 

 

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.
8

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: 

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 
9

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. ____ , 137 S. Ct. 1975 (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 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 
10

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 

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. 4The 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 

 

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 jurisdiction. 

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

132 Stat. 1510. 
11

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. 

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