UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2012 MSPB 53 

Docket No. DC-3330-10-0370-I-1 

Nathaniel Jerome Willingham, 

Appellant, 

v. 

Department of the Navy, 

Agency. 

April 13, 2012 

Nathaniel Jerome Willingham, Jacksonville, North Carolina, pro se. 

Courtney E. Walsh and Ralph H. Kohlmann, Esquire, Camp Lejeune, North 

Carolina, for the agency. 

BEFORE 

Susan Tsui Grundmann, Chairman 

Anne M. Wagner, Vice Chairman 

OPINION AND ORDER

¶1 This case is before the Board on the appellant’s petition for review of an 

initial decision that dismissed his Veterans Employment Opportunities Act of 

1998 (VEOA) appeal for a lack of jurisdiction and held that, if the Board had 

jurisdiction, the appellant failed to show that he was entitled to relief under 

VEOA. For the reasons explained below, the initial decision is AFFIRMED as 

MODIFIED by this opinion and order. 
2

BACKGROUND

¶2 The Marine Corps Community Services (MCCS) at Camp Lejeune, North 

Carolina, is a Non-Appropriated Fund Instrumentality (NAFI) operating under the 

authority of the Department of the Navy. Initial Appeal File (IAF), Tab 11 

at 5, 7. The MCCS Human Resources Division (HRD) published a vacancy 

announcement seeking to use “merit staffing procedures” to fill a position as an 

Equal Employment Specialist. IAF, Tab 14 at 101-02, 117. The appellant 

applied for the position and was referred as a “best qualified” (BQ) candidate. Id. 

at 106. A panel interviewed all BQ candidates including the appellant, but 

management ultimately opted to cancel the merit staffing vacancy announcement 

and to fill the position through the lateral reassignment of a current NAFI 

employee, Ms. Marshall. Id. at 117-18. 

¶3 In a timely manner, the appellant sought relief from the Department of 

Labor (DOL) for an alleged violation of his veterans’ preference rights stemming 

from his nonselection. IAF, Tab 12 at 21; see IAF, Tab 11 at 108. On March 5, 

2010, DOL notified the appellant that it had completed its investigation and his 

case had been closed. IAF, Tab 13. The appellant filed a timely appeal with the 

Board. IAF, Tab 1. 

¶4 On appeal, the appellant contended that his nonselection amounted to a 

denial of his privileges as a preference eligible employee and asserted Board 

jurisdiction under VEOA. Id.; see IAF, Tab 23 at 7-14. After conducting a 

hearing, the administrative judge held that the Board lacks jurisdiction over this 

appeal because the appellant sought a position in a NAFI, and he determined that 

NAFI positions are not within the Board’s VEOA jurisdiction. IAF, Tab 25, 

Initial Decision (ID) at 8-10. He further determined that, if the Board had 

jurisdiction, the appellant was not entitled to corrective action. ID at 11-15. The 

appellant filed a timely petition for review, and the agency filed a timely response 

in opposition. Petition for Review (PFR) File. 
3

ANALYSIS

¶5 We must determine whether the appellant has made nonfrivolous 

allegations of Board jurisdiction over his VEOA claim before we can address the 

merits of such a claim. Burroughs v. Department of the Army, 115 M.S.P.R. 656, 

¶ 10, aff’d, 445 F. App’x 347 (Fed. Cir. 2011); see Schmittling v. Department of 

the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000) (holding that the Board must 

address the matter of its jurisdiction before proceeding to the merits of an 

individual right of action appeal). VEOA provides that a “preference eligible 

who alleges that an agency has violated such individual’s rights under any statute 

or regulation relating to veterans’ preference may file a complaint with the 

Secretary of Labor.” 5 U.S.C. § 3330a(a)(1)(A). If the Secretary of Labor is 

unable to resolve the complaint within 60 days after the date on which it is filed, 

the complainant may appeal the alleged violation to the Merit Systems Protection 

Board. 5 U.S.C. § 3330a(d)(1). 

¶6 Consequently, to establish Board jurisdiction over an appeal brought under 

VEOA, an appellant must: (1) show that he exhausted his remedy with the 

Department of Labor; and (2) make nonfrivolous allegations that (i) he is a 

preference eligible within the meaning of VEOA, (ii) the actions at issue took 

place on or after October 30, 1998, and (iii) an agency violated his rights under a 

statute or regulation relating to veterans’ preference.1

 Searcy v. Department of 

Agriculture, 115 M.S.P.R. 260, ¶ 13 (2010); see 5 U.S.C. § 3330a; Abrahamsen v. 

Department of Veterans Affairs, 94 M.S.P.R. 377, ¶ 6 (2003). For the reasons set 

forth below, we find that the appellant has made nonfrivolous allegations of 

Board jurisdiction under VEOA, but has not shown that he is entitled to relief. 

 

1

 It is undisputed that the appellant exhausted his remedy before DOL and that the 

actions at issue took place in 2009-2010. IAF, Tab 13 at 3, Tab 14 at 101-114. 
4

The appellant made nonfrivolous allegations that he was a preference eligible and 

that his rights were denied by an agency under a regulation related to veterans’

preference.

¶7 A statement made under penalty of perjury, if not inherently incredible and 

not disputed or rebutted by the other party, proves the facts it asserts. See

Crawford v. Department of State, 60 M.S.P.R. 441, 445 (1994); Anthony v. 

Department of Commerce, 78 M.S.P.R. 246, 249, review dismissed, No. 98-3264, 

1998 WL 780901 (Fed. Cir. Oct. 26, 1998) (Table). In sworn affidavits, the 

Director and Deputy Director of HRD each stated that MCCS’s actions occurred 

“[p]er the regulations set forth in Marine Corps Order P12000.11A . . . .” IAF, 

Tab 14 at 116, 122. The agency’s statement of facts concedes that it acted under 

Marine Corps Order P12000.11A and that this order contains “regulations.” Id. at 

6-7; see id. at 18 (referring to discretion granted by this policy as “regulatory”), 

20 (stating that the action was taken in accordance with the agency’s 

“regulations”). On petition for review, the agency continues to describe the 

governing documents as regulations. PFR File, Tab 3 at 11, 13, 15. Thus, we 

find that the appellant has made a nonfrivolous allegation that Marine Corps 

Order P12000.11A is a regulation. 

¶8 As the administrative judge discussed thoroughly in his initial decision, the 

appellant has made a nonfrivolous allegation that he is an honorably discharged 

veteran entitled to preference under title 5 as a result of a service-connected 

disability. ID at 6-8; IAF, Tab 19 at 19-21; 5 U.S.C. § 2108(2), (3)(C). The 

agency does not challenge this finding on petition for review. PFR File, Tab 3 

at 9. Because the agency regulation in question also provides “preference” to 

honorably discharged veterans with service-connected disabilities, we need not 

determine whether the appellant’s preference derives from 5 U.S.C. § 2108 or 

from the agency’s regulation. IAF, Tab 14 at 46; see Wilks v. Department of the 

Army, 91 M.S.P.R. 70, ¶ 11 (2002) (holding that the term “preference eligible” in 

section 3330a is broad enough to encompass applicants for title 10 positions). It 
5

is sufficient that the appellant has made a nonfrivolous allegation that he is 

preference eligible. See 5 U.S.C. § 3330a; Searcy, 115 M.S.P.R. 260, ¶ 13; 

Abrahamsen, 94 M.S.P.R. 377, ¶ 6. 

The appellant made nonfrivolous allegations that the MCCS is an “agency” 

within the meaning of 5 U.S.C. § 3330a.

¶9 This appeal presents an issue of first impression, namely whether the 

MCCS – which is undisputedly a NAFI – can be considered an “agency” within 

the meaning of section 3330a(a)(1)(A) for purposes of Board jurisdiction. IAF, 

Tab 11 at 5. As always, in interpreting Congressional enactments, we begin with 

the language of the statute. Schreiber v. Burlington Northern, Inc., 472 U.S. 1, 5

(1985) (the starting point for statutory interpretation is the text of the statute 

itself). If the statute is clear on its face, then the inquiry ends. See Garcia v. 

Department of Homeland Security, 437 F.3d 1322, 1338 (Fed. Cir. 2006) (quoting 

Chevron v. Natural Res. Def. Council, 467 U.S. 837, 842 (1984)). However, if the 

statute is silent or ambiguous, then we must “resort to other means of statutory 

construction” in discerning Congressional intent. Id. (citing Kilpatrick v. 

Principi, 327 F.3d 1375, 1384 (Fed. Cir. 2003)). 

¶10 Unfortunately, VEOA does not define “agency” and there is nothing in that 

Act’s legislative history to illuminate the meaning of that word in the context of 

5 U.S.C. § 3330a.

2

 See P.L. 105-339; 112 Stat. 3182 (1998); S. Rep. No. 105-340 

(1998). The provisions of VEOA are primarily codified in title 5 of the U.S. 

 

2 In Sedgwick v. The World Bank, 106 M.S.P.R. 662, ¶ 6 (2007) aff’d, 

276 F. App’x 1000 (Fed. Cir. 2008), the Board rejected the administrative judge’s 

reliance on the definition of “agency” in 5 U.S.C. § 3330(a) - which despite its 

proximity to 5 U.S.C. § 3330a, was not enacted as part of, or otherwise affected by, the 

VEOA - in finding that the World Bank was not an agency for purposes of 5 U.S.C. 

§ 3330a. The Board saw nothing in the mere circumstance of the provisions’ placement 

in the U.S. Code to make that definition of agency “more relevant to [a VEOA] appeal 

than definitions in other parts of title 5 . . .” We also note that, in section 3330(a), 

Congress specifically provided that the definition of “agency” set forth therein was 

“[f]or purposes of this section.” 
6

Code. It is true that 5 U.S.C. § 105 stipulates that “for the purpose of” title 5, an 

“executive agency” is defined as an Executive department, a Government 

corporation, and an independent establishment,” and that at least one circuit court 

of appeals3

 has found that a NAFI, like the one at issue here, did not meet that 

statutory definition because it was a part of the Department of Defense (DoD). 

Honeycutt v. Long, 861 F.2d 1346, 1349 (5th Cir. 1988) (holding that the head of 

the Army and Air Force Exchange Service was not a proper defendant under the 

Age Discrimination in Employment Act because he was not the head of the 

agency). However, section 3330a uses the term “agency” without the “executive” 

qualifier in 5 U.S.C. § 105. In the context of other legislation relating to the 

employment of veterans in the federal government, Congress’s definition of 

“agency” encompasses the definition of “executive agency” in 5 U.S.C. § 105, 

among other things. See 38 U.S.C. § 4211(5). It is, therefore, not at all clear that 

Congress intended that the unqualified and seemingly broader use of “agency” in 

section 3330a be constricted by the definition of “executive agency” in 5 U.S.C. § 

105. Given this ambiguity, we look to other sources for guidance in interpreting 

the scope of our jurisdiction under VEOA. See Garcia, 437 F.3d at 1338. 

¶11 As a threshold matter, we note that when Congress has intended to exclude 

federal hiring from VEOA, or to preclude Board jurisdiction over VEOA claims, 

it has explicitly done so through legislated exemptions. For example, in Scarnati 

v. Department of Veterans Affairs, 344 F.3d 1246 (Fed. Cir. 2003), the court held 

that title 38 explicitly stated that no provision of title 5 would apply if it was 

inconsistent with the discretionary power given to the Department of Veterans 

Affairs with respect to the hiring of certain medical professionals. Id. at 1248. 

 

3

 The decision of the U.S. Court of Appeals for the Fifth Circuit is not controlling 

authority in Board adjudication. See generally Fairall v. Veterans Administration, 

33 M.S.P.R. 33, 39 (decisions of the U.S. Court of Appeals for the Federal Circuit are 

controlling authority for the Board, and decisions of other federal circuit courts may be 

persuasive, but are not controlling, authority), aff'd, 844 F.2d 775 (Fed. Cir. 1987). 
7

Therefore, VEOA was not applicable to such hiring actions. Id. Similarly, in 

Vores v. Department of the Army, 109 M.S.P.R. 191, ¶¶ 22-23 (2008), aff’d, 324 

F. App’x 883 (Fed. Cir. 2009), the Board held that a recruitment action to hire a 

medical professional, conducted by the Army under the authority of 38 U.S.C. 

§ 7406, was outside the Board’s VEOA jurisdiction because title 38 contained an 

explicit exemption from title 5. 

¶12 In Morse v. Merit Systems Protection Board, 621 F.3d 1346 (Fed. Cir. 

2010), the court reached a similar conclusion with respect to positions within the 

Transportation Security Administration (TSA). TSA is managed under the 

personnel provisions of the Federal Aviation Administration (FAA). Id. at 1348. 

The statute that governs FAA’s personnel management system states that, except 

for specifically enumerated provisions, title 5 does not apply to FAA. Id. 

at 1349. The court held that because section 3330a was not included as an 

exception to the rule that title 5 would not apply to FAA, the Board did not have 

VEOA jurisdiction over TSA hiring decisions. Id. at 1351. 

¶13 Unlike in Morse, Scarnati, and Vores, we have found no statutory basis for 

exempting NAFI recruitment and selection processes from VEOA’s scope. See

Morse, 621 F.3d at 1351; Scarnati, 344 F.3d at 1248; Vores, 109 M.S.P.R. 191, 

¶¶ 22-23. Although, with a few exceptions not pertinent here, NAFI employees 

are not to be considered employees “for purposes of laws administered by the 

Office of Personnel Management,” see 5 U.S.C. § 2105, the right to seek redress 

under 5 U.S.C. § 3330a attaches to a “preference eligible,” regardless of the 

individual’s status as an employee. As such, we do not read 5 U.S.C. § 2105 as 

dispositive of, or even particularly relevant to, the question of whether the 

Board’s VEOA jurisdiction extends to claims arising out of the MCCS 

recruitment and selection process. 

¶14 The Board has long and consistently applied the well-established maxim 

that a remedial statute should be broadly construed in favor of those whom it was 

meant to protect. See Weed v. Social Security Administration, 107 M.S.P.R. 142, 
8

¶ 8 (2007). But when the remedial statute involves veterans’ rights and benefits, 

that principle of statutory construction is even more compelling. Recently, in 

Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011) (quoting 

United States v. Oregon, 366 U.S. 643, 647 (1961)), the Supreme Court 

recognized that the “solicitude of Congress for veterans is of long standing.” 

Deciding an issue concerning judicial review of veterans’ claims under a law 

enacted in 1988, the Court noted that that solicitude was “plainly reflected in 

[that law] as well as in subsequent laws that place a thumb on the scale in the 

veteran’s favor in the course of administrative and judicial review . . . .” Id. 

(internal punctuation omitted). It further stated that when interpreting statutes, it 

has “long applied the canon that provisions for benefits to members of the Armed 

Services are to be construed in the beneficiaries’ favor.” Id. at 1206. 

¶15 Another bedrock rule of statutory interpretation is that statutes must be 

construed in light of their purpose. See Wassenaar v. Office of Personnel 

Management, 21 F.3d 1090, 1096 (Fed. Cir. 2000) (citing Best Power Technology 

Sales Corp. v. Austin, 984 F.2d 1172 (Fed. Cir. 1993)). In this regard, our 

reviewing court has clearly recognized that “[t]he purpose of [] VEOA is to assist 

veterans in obtaining gainful employment with the federal government and to 

provide a mechanism for enforcing this right.” Kirkendall v. Department of the 

Army, 479 F.3d 830, 841 (Fed. Cir.) (en banc), cert. denied, 552 U.S. 948 

(2007).4

 The court went on to characterize VEOA as “an expression of gratitude 

 

4

 In the underlying administrative review of Kirkendall’s VEOA claims, the Board held 

that it lacked jurisdiction over VEOA appeals that were untimely filed in light of the 

statute’s edict that “in no event” could such appeals be brought to the Board if they 

were filed “later than 15 days” after receipt of DOL’s decision. See 5 U.S.C. 

§ 3330a(d)(1); Kirkendall, 479 F.3d at 834; see also Williams v. Department of the 

Navy, 94 M.S.P.R. 400, ¶ 11 (2003), aff’d, 89 F. App’x 714 (Fed. Cir. 2004). The 

Federal Circuit rejected the Board’s construction of the phrase, “in no event,” finding 

instead that Congress intended for the Board to apply principles of equitable tolling to 

excuse VEOA claims filed outside the statutory 15-day period. Kirkendall, 479 F.3d at 

841-43. 
9

by the federal government to the men and women who have risked their lives in 

defense of the United States.” Id. In light of the foregoing, we are mindful that, 

in resolving this question of Board jurisdiction, the remedial purpose of VEOA 

and the Congressional solicitude for veterans reflected therein strongly favor 

reading section 3330a broadly in favor of the veteran when possible. 

¶16 Fortunately, this appeal does not require that we decide whether all NAFIs 

are agencies within the meaning of 5 U.S.C. § 3330a. Rather, the history of the 

military NAFIs generally and the organizational structure of the MCCS, in 

particular, demonstrate that the MCCS operates as a component of the Marine 

Corps, and as such, comes within the purview of VEOA.5

 

¶17 In 1895, the War Department ordered the creation of post exchanges as 

NAFIs. Standard Oil Co. of California v. Johnson, 316 U.S. 481, 483-84 (1942). 

The unique relationship between the government and the exchanges was brought 

before the Supreme Court in 1942 in Standard Oil, when the State of California 

passed a tax on gasoline that applied to the private sector, but not to the federal 

government. Standard Oil, 316 U.S. at 482. The question before the Court was 

whether the Army Post Exchanges in California were exempt from the tax on the 

basis that the gasoline was for the “official use of [the federal] government.” Id. 

The Court concluded that post exchanges were “arms of the government deemed 

by it essential for the performance of governmental functions. They [were] 

integral parts of the War Department, share[d] in fulfilling the duties entrusted to 

it, and part[ook] of whatever immunities it [had.]” Id. at 485. 

¶18 Indeed, according to the Marine Corps NAF Personnel Policy Manual, the 

MCCS is an instrumentality operating under the authority of the Marine Corps 

with the “Commandant of the Marine Corps [] responsible for all personnel 

 

5

 The Board has held that the civil service portion of the Department of the Navy is an 

agency subject to VEOA. See Phillips v. Department of the Navy, 110 M.S.P.R. 184

(2008). 
10

policy matters related to nonappropriated fund employees.” IAF, Tab 14 at 34. It 

further provides that “NAFI personnel policy is governed or guided by DoD 

directives, instruction, manuals, executive orders, public laws, OPM issuances, 

DoD circulars, and other regulations.” Id. at 36. While these DoD documents are 

not part of the record below, our regulations authorize us to take “official notice” 

of “matters that can be verified.” See 5 C.F.R. § 1201.64. Exercising such 

authority here, we note that DoD Instruction No. 1400.25, Volume 1401 (Oct. 18, 

2011), 6 entitled “DoD Civilian Personnel Management System: General 

Information Concerning Nonappropriated Fund (NAF) Personnel Policy,” 

identifies its purpose as “to establish policy, assign responsibilities, and provide 

general information concerning personnel policy covering DoD NAF employees 

and positions.” Id. at 1. The Instruction further indicates that the Deputy 

Assistant Secretary of Defense for Civilian Personnel Policy shall “[d]evelop and 

administer DoD-wide NAF personnel policies, procedures, programs, and 

guidance covering NAF employees,” and that “Heads of the DoD Components 

shall,” inter alia, “[r]ecruit, select, place...and accomplish other related personnel 

transactions involving NAF employees.” Id. at 5. Given the extent to which the 

MCCS is integrated into the DoD civilian personnel system, we believe that it can 

and should be viewed as an agency for purposes of the VEOA provision at 

5 U.S.C. § 3330a. 

¶19 Because we find that the appellant exhausted his remedy with DOL and has 

made nonfrivolous allegations that he is a preference eligible and that an agency, 

after 1998, violated his rights under a regulation relating to veterans’ preference, 

we find that the Board has jurisdiction over this appeal. See 5 U.S.C. § 3330a; 

Searcy, 115 M.S.P.R. 260, ¶ 13; Abrahamsen, 94 M.S.P.R. 377, ¶ 6. 

 

6

 This DoD Instruction is publicly available at the Department of Defense Civilian 

Personnel Management System’s website at http://www.cpms.osd.mil/NAFPPO/

NAFPPO_index.aspx. 
11

The administrative judge did not err in holding that the appellant failed to show 

he was entitled to relief under VEOA.

¶20 To be entitled to relief under VEOA, the appellant must prove by 

preponderant evidence that the agency’s action violated one or more of his 

statutory or regulatory veterans’ preference rights. Isabella v. Department of 

State, 106 M.S.P.R. 333, ¶ 22 (2007); Dale v. Department of Veterans Affairs, 

102 M.S.P.R. 646, ¶ 10, review dismissed, 199 F. App’x 948 (Fed. Cir. 2006). 

The appellant contends that his rights under VEOA were violated because the 

agency canceled the vacancy announcement and subsequently reassigned an 

MCCS employee into the position. IAF, Tab 1; PFR File, Tab 1 at 18-19. 

¶21 The authority of an agency to cancel a vacancy in a NAFI is a question of 

first impression for the Board. However, in the competitive service, “[a]n agency 

may cancel a vacancy announcement for any reason that is not contrary to law.” 

Abell v. Department of the Navy, 343 F.3d 1378, 1384 (Fed. Cir. 2003). The 

Board has held that the cancellation of a competitive service vacancy 

announcement and placement of an individual in the available position through 

other authorized means may be permissible under VEOA. See, e.g., Scharein v. 

Department of the Army, 91 M.S.P.R. 329, ¶ 12 (2002) (holding that VEOA was 

not violated when the agency redesignated a civilian position as military and 

filled it with a military officer), aff'd, No. 02-3270, 2008 WL 5753074 (Fed. Cir. 

Jan. 10, 2003); Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, 

¶¶ 8-10 (2001) (holding that the agency did not violate an appellant’s veterans’ 

preference rights by appointing a candidate via reinstatement instead of using 

competitive examining). 

¶22 In the instant case, Marine Corps Order P12000.11A expressly provides 

that “[t]he head of the local NAFI or designee is authorized to change or cancel a 

vacancy announcement at any time or nonselect referred candidates.” IAF, 

Tab 14 at 94 (internal punctuation omitted). Furthermore, a “[r]eassignment or 

change to lower grade or level of a current employee to a position with no higher 
12

potential than the currently held continuing position” is excluded from the merit 

staffing procedures. Id. at 95. “The head of the local NAFI or designee, at any 

time, is authorized to appoint individuals non-competitively in all actions 

excluded from the Merit Staffing Program.” Id. at 94. Thus, the regulation at 

issue did not require the agency to make a selection from the referral list, nor did 

it prohibit the non-competitive reassignment of an employee who was already at 

that same grade. Id. at 94-95. 

¶23 However, bad faith in deciding to cancel a vacancy may be a factor in 

determining if a cancellation affects a veteran’s right to compete. See Abell, 343 

F.3d at 1384. When an administrative judge’s credibility findings are based, 

explicitly or implicitly, on the observation of the demeanor of witnesses 

testifying at a hearing, the Board may overturn such determinations only when it 

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice, 

288 F.3d 1288, 1301-02 (Fed. Cir. 2002). The Board has held that it does not 

owe deference to the administrative judge’s credibility determination where his 

findings are incomplete, inconsistent with the weight of the evidence, and do not 

reflect the record as a whole. Faucher v. Department of the Air Force, 

96 M.S.P.R. 203, ¶ 8 (2004); see Edwards v. Department of Transportation, 

117 M.S.P.R. 222, ¶ 11 (2012). 

¶24 The Director and Deputy Director of HRD for MCCS testified that they 

were interested in selecting Ms. Marshall prior to the issuance of the vacancy 

announcement. IAF, Tab 22, Hearing Disc (HD) at 0:55:25-0:56:00 (testimony of 

Andrew Ennett, Director), 2:19:00-2:19:45 (testimony of Patricia Turner, Deputy 

Director). Ms. Marshall testified that management officials spoke with her about 

the possibility of a reassignment in November 2009, but she informed them that 

she felt that she could not leave her position because she was needed there at that 

time. HD at 2:04:00-2:04:45. The administrative judge determined that these 

witnesses were credible because they testified to this issue in a straightforward 

manner, their testimonies corroborated each other, and their testimonies were 
13

consistent with the record. ID at 13-14; see IAF, Tab 14 at 116. He then 

determined that the agency had not acted in bad faith for the purpose of depriving 

the appellant of an opportunity to compete for the position. ID at 15. 

¶25 On petition for review, the appellant asserts that Ms. Marshall’s testimony 

regarding her reason for not participating in the selection process for the vacancy 

announcement while later accepting the reassignment was pretextual and made 

“no sense.” PFR File, Tab 1 at 23. He contends that this is evidence that the 

agency canceled the announcement and selected Ms. Marshall in bad faith. Id. 

The vacancy announcement opened on November 23, 2009, and closed on 

December 2, 2009. IAF, Tab 14 at 101. The interview panel made its 

recommendation on January 22, 2010, and the announcement was canceled on 

January 26, 2010. Id. at 109. Ms. Marshall testified that the obligations that 

prevented her from accepting a reassignment in November wrapped up in 

mid-January and were fully completed by early February 2010. HD at 1:55:20-

1:56:00. Because the witness’s testimony is consistent with the record, we 

discern no basis to disturb the administrative judge’s findings. Therefore, we 

find that the agency’s actions were authorized by its regulation and the appellant 

has not shown that the agency exercised its discretion in bad faith. Accordingly, 

the appellant’s request for relief is denied. 

ORDER

¶26 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the 

Federal Circuit to review this final decision. You must submit your request to the 

court at the following address: 
14

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 your receipt of this order. If you have a representative in this case and your 

representative receives this order before you do, then you must file with the court 

no later than 60 calendar days after receipt by your representative. 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 United States Code, section 7703 (5 U.S.C. § 7703). You may read 

this law, as well as review the Board’s regulations and other related material, at 

our website, http://www.mspb.gov. 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. 

FOR THE BOARD: 

______________________________ 

William D. Spencer 

Clerk of the Board 

Washington, D.C.