UNITED STATES OF AMERICA 

MERIT SYSTEMS PROTECTION BOARD 

2006 MSPB 337 

Docket No. AT-3443-05-0538-I-1 

James R. Walker, 

Appellant, 

v. 

Department of the Army 

Agency. 

November 27, 2006 

James R. Walker, Jackson, Tennessee, pro se. 

Steven L. Parker, Esquire, APO, APO/FPO Pacific, for the agency. 

BEFORE 

Neil A. G. McPhie, Chairman 

Mary M. Rose, Vice Chairman 

Barbara J. Sapin, Member 

OPINION AND ORDER

¶1 The agency petitions for review of the August 15, 2005 initial decision 

which ordered corrective action under the Veterans Employment Opportunities 

Act of 1998 (VEOA) with respect to the agency’s failure to allow the appellant to 

compete for an Equal Employment Specialist position under vacancy 

announcement KOEZ04056132R. We DENY the agency’s petition for failure to 

meet the review criteria set forth under 5 U.S.C. § 1201.115. However, for the 

reasons set forth below, we REOPEN this appeal on our own motion pursuant to 

5 C.F.R. § 1201.118, and AFFIRM the initial decision AS MODIFIED by this 

Opinion and Order. 
2

BACKGROUND

¶2 The parties stipulated that the appellant is a “disabled veteran” as that 

phrase is defined 5 U.S.C. § 2108(2), Initial Appeal File (IAF), Tab 20, and he 

therefore qualifies as a preference eligible, 5 U.S.C. § 2108(3)(C); see 5 C.F.R. 

§ 1201.63 (the parties may stipulate to any matter of fact, and a stipulation will 

satisfy a party’s burden of proving the fact alleged). In October 2004, in 

accordance with the agency’s procedures for applying for vacancies, the appellant 

nominated himself for a position as an Equal Employment Specialist under 

vacancy announcement KOEZ04056132R. IAF, Tab 10, Subtab 4i. This vacancy 

announcement indicated that those eligible to apply included, inter alia, all 

federal employees serving on a career or career-conditional appointment and 

“Veterans eligible under Veterans Employment Opportunity Act of 1998.” Id., 

Subtab 4j. The agency conceded that the Human Resources Assistant responsible 

for entering the appellant’s self-nomination for this vacancy into the appropriate 

database failed to do so. Id., Subtabs 1, 4b. On December 15, 2004, after the 

agency discovered its error, it notified the appellant that it would give him 

priority consideration for the next appropriate vacancy of the same grade and 

occupation in accordance with its internal regulations. Id., Subtab 4c. 

¶3 On December 17, 2004, the appellant filed a complaint with the 

Department of Labor, claiming that the agency violated his veterans’ preference 

rights with respect to the application he filed in response to vacancy 

announcement KOEZ04056132R. IAF, Tab 1, Subtab A. In a letter dated April 

6, 2005, the Department of Labor notified the appellant that it was closing its 

investigation into the appellant’s complaint “[d]ue to a lack of response from the 

Dept. of Army.” Id., Subtab D. The letter also advised the appellant that he 

could file his complaint with the Board within 15 days from his receipt of the 

letter. Id. 

¶4 The appellant filed his complaint with the Board on April 18, 2005. IAF, 

Tab 1. After the agency filed its response, in which it conceded that it did not 
3

properly process the appellant’s nomination for the position, the administrative 

judge issued an order which stated that it appeared that the agency had 

acknowledged that it violated the appellant’s rights under VEOA, and it further 

stated that the only issues left to be resolved in the appeal were whether the 

violation was willful and what the appropriate remedy should be. IAF, Tab 11. 

While the appeal was pending before the administrative judge, the Board issued 

Dean v. Department of Agriculture, 99 M.S.P.R. 533 (2005), recons. denied, 2006 

MSPB 318 (MSPB Docket No. AT-0330-03-0076-R-1) (Oct. 26, 2006), which, 

according to the administrative judge, resolved the issue regarding what the 

appropriate remedy should be for a violation of the appellant’s right to compete 

for the advertised position, i.e., reconstruction of the selection process. IAF, Tab 

26. Shortly thereafter, the administrative judge issued an initial decision on the 

written record in which she found (1) that the agency had violated the appellant’s 

right to compete for the vacant position guaranteed to him as a preference eligible 

by 5 U.S.C. § 3304(f), and (2) that this subsection is a statute relating to 

“veterans’ preference rights.” IAF, Tab 29, Initial Decision (ID) at 7. 

Accordingly, the administrative judge granted the appellant’s request for 

corrective action and ordered the agency to reconstruct the hiring process for the 

Equal Employment Specialist position for which the agency denied the appellant 

the opportunity to compete. Id. The initial decision advised the appellant that he 

could file a petition seeking compensation for loss of wages or benefits and 

liquidated damages within 60 calendar days of the date the initial decision 

became final. Id. at 9. However, the administrative judge determined that it was 

inappropriate to order interim relief. Id. at 8. 

¶5 The agency filed a timely petition for review in which it contests several of 

the findings in the initial decision. Petition For Review File (PFRF), Tab 1. The 

appellant did not file a response. 
4

ANALYSIS

¶6 We DENY the agency’s petition for review for failure to meet the review 

criteria set forth at 5 C.F.R. § 1201.115(d). The agency has not established that 

new and material evidence is available that, despite due diligence, was not 

available when the record closed nor that the decision of the administrative judge 

is based on an erroneous interpretation of statute or regulation. In addition, we 

agree with the administrative judge’s conclusions that the agency’s failure to 

process the appellant’s self-nomination for the Equal Employment Specialist 

position violated the appellant’s right as a preference eligible under 5 U.S.C. 

§ 3304(f) to compete for the position, and that the proper remedy in this case was 

an order requiring the agency to reconstruct the hiring process to afford the 

appellant proper consideration for the position. However, the Board has not 

addressed several issues that the agency has raised during the course of this 

appeal in a precedential decision, and we are therefore reopening this appeal to 

address those issues because our analysis may provide beneficial guidance to 

parties before the Board in similar cases. 

¶7 In its petition for review, the agency raises three main arguments. It first 

argues that its failure to properly include the appellant on the list of candidates 

for the Equal Employment Specialist position did not violate the appellant’s 

veterans’ preference rights because the position was filled through an internal 

merit promotion action, and veterans’ preference does not apply to such actions. 

PFRF, Tab 1. In Brandt v. Department of the Air Force, 103 M.S.P.R. 671 

(2006), the Board held that where, as here, an agency announces a vacancy open 

to internal candidates and external “status” candidates,1

 it must permit preference 

eligibles and other veterans described at 5 U.S.C. § 3304(f)(1) to apply, but the 

 

1

 “Status candidates” are individuals “who are eligible for non-competitive movement 

within the competitive service because they either are now or were serving under 

career-type appointments in the competitive service.” Office of Personnel Management 

VetsInfo Guide at 4 (April 2003). 
5

agency may make a selection under merit promotion procedures and is not 

required to follow veterans’ preference rules. 

¶8 Nevertheless, the agency has not contested the fact that it indicated the 

position would be filled through merit promotion procedures and that it would 

accept applications from outside its own workforce. See 5 C.F.R. § 335.103(b)(4) 

(selection procedures under a merit promotion plan will provide for 

management’s right to select from among a group of best qualified candidates and 

from other appropriate sources, such as reemployment priority lists, 

reinstatement, transfer, handicapped, or Veteran Readjustment Act eligibles or 

those within reach on an appropriate OPM certificate). Thus, while § 3304(f)(1) 

does not grant the appellant any advantage, beyond the right to compete for 

particular positions, to which he is not otherwise entitled, there is no question 

that § 3304(f)(1) precluded the agency from denying the appellant the opportunity 

to compete for the position at issue in this case. Because the appellant timely 

filed his application in accordance with the agency’s instructions, we discern no 

error in the administrative judge’s conclusion that the agency’s failure to properly 

process the application, and its failure to include the appellant among the list of 

candidates referred to the selecting official for consideration, denied the appellant 

the right to compete for the position guaranteed to him by § 3304(f)(1). 

¶9 However, while the agency essentially conceded that it denied the appellant 

the right to compete for the position, it also argued that such a denial does not fall 

within the realm of veterans’ preference violations that can be remedied under 

VEOA. We reject the agency’s argument for the following reasons. 

¶10 First, while the agency correctly asserts that 5 U.S.C. § 3304(f) does not 

appear in the list of veterans’ preference requirements enumerated in 5 U.S.C. 

§ 2302(e)(1), PFRF, Tab 1, the remedial provisions of VEOA are not limited to 

providing a remedy for a violation of the “veterans’ preference requirements.” 

Rather, VEOA provides a remedy for a violation of an “individual’s rights under 

any statute or regulation related to veterans’ preference.” 5 U.S.C. 
6

§§ 3330a(a)(1), 3330c; see Dean, 99 M.S.P.R. 533, ¶¶ 16-17 (a statute or 

regulation “relates to” veterans’ preference if the statute or regulation “stands in 

some relation to,” has a bearing on, concerns, and “has a connection with” 

veterans’ preference rights). Thus, the fact that 5 U.S.C. § 3304(f) does not 

appear in the list of “veterans’ preference requirements” does not mean that a 

violation of the right to compete under that subsection is not remediable under 

VEOA; it merely means that an agency’s failure to comply with 5 U.S.C. 

§ 3304(f) does not amount to a personnel practice prohibited by 5 U.S.C. 

§ 2302(b)(11) (an employee shall not take or fail to take any personnel action that 

would violate a veterans’ preference requirement), see Ramsey v. Office of 

Personnel Management, 87 M.S.P.R. 98, ¶ 11 (2000) (the regulations 

implementing 5 U.S.C. § 3304(f) cannot be a basis for committing a personnel 

practice prohibited by 5 U.S.C. § 2302(b)(11) because Congress specifically 

excluded the provisions of 5 U.S.C. § 3304(f) from the “veterans’ preference 

requirements”), and that the individuals responsible for the agency’s failure to 

comply with 5 U.S.C. § 3304(f) are not subject to disciplinary action under 

5 U.S.C. § 1215 for violating § 2302(b)(11), see 5 U.S.C. § 2302(e)(2) (although 

there is no authority to order corrective action with respect to a personnel 

practice prohibited by 5 U.S.C. § 2302(b)(11), nothing in 5 U.S.C. § 2302(e) shall 

be considered to affect any authority under 5 U.S.C. § 1215 (relating to 

disciplinary action)). 

¶11 In addition to pointing out that § 3304(f) is not listed as a “veterans’ 

preference requirement,” the agency further contends that § 3304(f) is not a 

“statute or regulation relating to veterans’ preference.” There is some authority 

to support the agency’s contention. For example, in Hunt v. United States, 154 F. 

Supp. 2d 1047, 1051 (E.D. Mich. 2001),2

 the district court, relying on the Board’s 

 

2

 We note that decisions of United States district courts are not binding on the Board, 

Boulineau v. Department of the Army, 57 M.S.P.R. 244, 249 n.7 (1993), but the Board 

may follow such decisions if it is persuaded by their reasoning, see, e.g., Heidel v. U.S. 
7

decision in Ramsey and on the language in § 3304(f)(3), specifically found that 

5 U.S.C. § 3304(f) “is not a statute or regulation relating to veterans’ preference,” 

and the judge therefore concluded that the district court did not have jurisdiction 

under 5 U.S.C. § 3330b to consider the appellant’s allegations that the 

Department of the Army violated his right to compete for various positions. 

Furthermore, in Schott v. Department of Homeland Security, 97 M.S.P.R. 35, ¶ 30 

(2004), the Board cited its decision in Ramsey for the proposition that, while 

5 U.S.C. § 3304(f) mandates that agencies shall give preference eligibles the 

opportunity to compete for vacant positions, it does not provide preference 

eligibles with a remedy should an agency violate this provision. 

¶12 We find, however, that the weight of authority establishes that a violation 

of the opportunity to compete guaranteed by 5 U.S.C. § 3304(f) is remediable 

under VEOA. First, we find that Hunt and Schott misinterpreted the Board’s 

findings in Ramsey. Ramsey was a regulation-review case under 5 U.S.C. 

§ 1204(f), which authorizes the Board to review provisions of rules and 

regulations issued by the Director of the Office of Personnel Management (OPM) 

and to declare such provisions invalid if their implementation would require any 

employee to commit a personnel practice prohibited by 5 U.S.C. § 2302(b). The 

issue the Board decided in Ramsey was whether OPM’s application of minimum 

qualification standards to VEOA appointments required agencies to commit 

prohibited personnel practices by obstructing a veteran’s right to compete for 

employment. Ramsey, 87 M.S.P.R. 98, ¶ 8. The Board ultimately determined 

that OPM’s regulations did not obstruct a veteran’s right to compete, and it 

specifically found that the regulations implementing 5 U.S.C. § 3304(f) could not 

be a basis for committing a personnel practice prohibited by 5 U.S.C. 

 

Postal Service, 69 M.S.P.R. 511, 520-21 (1996) (relying on, inter alia, a district court 

decision interpreting the Selective Service Act, as amended). For the reasons set forth 

in the remainder of this Opinion and Order, we decline to follow the district court 

decision in Hunt. 
8

§ 2302(b)(11) because “section 3304 is not included as a ‘veterans’ preference 

requirement,’ at 5 U.S.C. § 2302(e)(1).” Id., ¶ 11. Thus, the Board in Ramsey

merely determined that 5 U.S.C. § 3304(f) was not a “veterans’ preference 

requirement.” It did not determine that this section was not a “statute or 

regulation relating to veterans’ preference.” 

¶13 Second, in the case of Abell v. Department of the Navy, 92 M.S.P.R. 397, 

¶ 9 (2002), aff’d, 343 F.3d 1378, 1384-85 (Fed. Cir. 2003), the Board and the 

Federal Circuit each issued a precedential decision addressing the merits of the 

appellant’s claim that the agency interfered with his right to compete for 

positions guaranteed by 5 U.S.C. § 3304(f)(1). Cf. Campion v. Merit Systems 

Protection Board, 326 F.3d 1210, 1214 n.2 (Fed. Cir. 2003) (because the court 

concluded that VEOA provided no right of appeal to the non-preference eligible 

appellant, it expressed no opinion regarding whether the Board would have 

jurisdiction over a preference-eligible veteran’s appeal alleging a violation of 

5 U.S.C. § 3304(f)(1)).3

 In Abell, the Board and the Federal Circuit each reached 

the merits of the appellant’s claim and determined that the agency’s cancellation 

of a vacancy announcement without making a selection for a position for which 

the appellant applied did not violate the appellant’s right under § 3304(f)(1) to 

compete for the position. While the appellant in Abell did not prevail, neither the 

Board nor the Federal Circuit dismissed the appellant’s VEOA claim on the basis 

that a preference eligible’s right to compete under 5 U.S.C. § 3304(f) is not 

remediable under VEOA. 

¶14 Third, Congress amended 5 U.S.C. § 3330a(a)(1) in 2004 to specifically 

allow “[a] veteran described in section 3304(f)(1) who alleges that an agency has 

violated such section with respect to such veteran [to] file a complaint with the 

 

3

 The court’s holding in Campion, i.e., that VEOA provides no right to appeal a 

violation of 5 U.S.C. § 3304(f) to a non-preference-eligible veteran, was arguably 

superseded when Congress amended 5 U.S.C. § 3330a in 2004. See infra, ¶ 14. 
9

Secretary of Labor.” Veterans Benefits Improvement Act of 2004, Pub. L. No. 

108-454, Title VIII, § 804(a), 118 Stat. 3598, 3626 (2004). The report issued by 

the Senate Committee on Veterans’ Affairs indicated that the purpose of the 

amendment was to afford the non-preference eligible veterans who have been 

separated from the armed forces under honorable conditions after 3 years of 

active service, to whom Congress granted the same right as preference eligibles 

to compete under § 3304(f), the same right to seek redress for a violation of that 

right that VEOA previously provided to preference eligibles. S. Rep. No. 108-

352, at 11-12 (2004), as reprinted in 2004 U.S.C.C.A.N. 3148, 3159. Because 

non-preference eligible veterans entitled to compete for positions under 5 U.S.C. 

§ 3304(f)(1) have the right to file complaints with the Department of Labor, these 

veterans also presumably have the right to file a Board appeal if the Department 

of Labor is unable to resolve their complaints. See 5 U.S.C. § 3330a(d)(1) (“If 

the Secretary of Labor is unable to resolve a complaint under subsection (a) 

within 60 days after the date on which it is filed, the complainant may elect to 

appeal the alleged violation to the Merits Systems Protection Board . . . .”). 

Although the view of a later Congress cannot control the interpretation of an 

earlier enacted statute, see Huffman v. Office of Personnel Management, 263 F.3d 

1341, 1354 (Fed. Cir. 2001) (citing O’Gilvie v. United States, 519 U.S. 79, 90, 

(1996)), the legislative history of VEOA suggests that Congress always intended 

to provide a right to a preference eligible to file a complaint if he believed an 

agency violated his right to compete for a position guaranteed by VEOA. See, 

e.g., H.R. Rep. No. 105-40(I), at 12 (1997) (“Veterans who believe their veterans’ 

preference rights or their right to compete for positions under this Act have been 

violated may file a complaint with the Secretary of Labor.”). In addition, an 

interpretation of the statute that would preclude preference eligibles from filing 

complaints regarding an agency’s denial of the opportunity to compete 

guaranteed by § 3304(f)(1) would lead to the absurd result that non-preference 

eligible veterans have greater remedial rights under VEOA than preference 
10

eligibles with respect to the right to seek redress regarding such a denial. See 

Wassenaar v. Office of Personnel Management, 21 F.3d 1090, 1092 (Fed. Cir. 

1994) (in construing a statute, it should be read to avoid an absurd result when it 

can be given a reasonable application consistent with its words and legislative 

purpose). 

¶15 Finally, § 3304(f)(1) is more closely related to veterans’ preference than 

§ 3304(b), the subsection that the Board determined was a statute “related to” 

veterans’ preference in Dean. Although § 3304(b) does not specifically refer to 

“veterans’ preference” or “preference eligibles,” the Board in Dean determined 

that it was a statute related to veterans’ preference because, “[b]y establishing the 

principle that examinations are the norm and that individuals may not be 

appointed in the competitive service unless they have passed an examination or 

are specifically excepted from examination under 5 U.S.C. § 3302,” this 

subsection ensured that the veterans’ preference provisions that provide an 

advantage to preference eligibles in the competitive examination process will 

generally be applied to the appointment process for positions in the competitive 

service. Dean, 99 M.S.P.R. 533, ¶ 17. In other words, despite the fact that 

§ 3304(b) does not, standing alone, provide any advantage to preference eligibles, 

the Board determined that it was related to “veterans’ preference” because it 

ensured the applicability of other statutory provisions that do explicitly provide 

the preference in the competitive examining process. In contrast to § 3304(b), 

§ 3304(f)(1) specifically refers to “preference eligibles” as being among the 

group to which the benefit provided by the subsection applies, despite the fact 

that § 3304(f)(3) provides that “[t]his subsection shall not be construed to confer 

an entitlement to veterans’ preference that is not otherwise required by law.” 

Thus, while § 3304(f)(1) does not provide preference eligibles with any 

advantage beyond the opportunity to compete for particular positions, see Abell, 

92 M.S.P.R. 397, ¶ 8 (“We find that 5 U.S.C. § 3304(f) permits the appellant and 

others in like circumstances to apply, but otherwise they receive no special 
11

treatment in the process of filling a position under merit promotion procedures.”), 

preference eligibility granted to an individual pursuant to 5 U.S.C. § 2108 is one 

basis under which an individual can qualify for the benefit provided by the 

subsection. 

¶16 For the reasons set forth above, we find that § 3304(f)(1) stands in some 

relation to, has a bearing on, concerns, and has a connection with veterans’ 

preference rights and is, therefore, a statute “relating to veterans’ preference” for 

which VEOA provides a remedy in the event of a violation thereof. Dean, 99 

M.S.P.R. 533, ¶¶ 16-17. Accordingly, we overrule Schott v. Department of 

Homeland Security, 97 M.S.P.R. 35 (2004), to the extent that decision is 

inconsistent with this finding. 

¶17 The agency’s final argument is that the Board has no authority to grant 

relief under § 3330c(a) for a violation of § 3304(f) and that Dean provides no 

legal authority for the Board to order the agency to reconstruct the selection 

process in this case. PFRF, Tab 1. First, our acceptance of the administrative 

judge’s conclusion that the agency violated § 3304(f)(1) by denying the appellant 

the opportunity to compete for the Equal Employment Specialist position through 

its failure to process his application and our conclusion that § 3304(f)(1) is a 

statute “related to veterans’ preference” inexorably leads to the conclusion that 

the agency violated the appellant’s “rights under any statute or regulation relating 

to veterans’ preference.” 5 U.S.C. § 3330a(a)(1). VEOA clearly authorizes the 

Board to grant a remedy for such a violation. See 5 U.S.C. § 3330c(a).4

 

 

4

 This subsection provides: 

If the Merit Systems Protection Board (in a proceeding under section 

3330a) or a court (in a proceeding under section 3330b) determines that an 

agency has violated a right described in section 3330a, [(i.e., an 

individual’s rights under any statute or regulation relating to veterans’ 

preference),] the Board or court (as the case may be) shall order the 

agency to comply with such provisions and award compensation for any 

loss of wages or benefits suffered by the individual by reason of the 
12

¶18 Previously, when an agency has improperly denied an appellant 

consideration for a position, the Board has generally stated that the appropriate 

remedy is to provide the appellant with priority consideration for a future 

vacancy, as the agency agreed to do in this case. See ¶ 2 supra; Azdell v. Office 

of Personnel Management, 87 M.S.P.R. 133, ¶ 52 (2000) (priority consideration 

for future vacancies is the proper remedy for an appellant who was denied 

consideration for a position for which he was qualified), aff’d on reconsideration, 

89 M.S.P.R. 88 (2001), rev’d on other grounds sub nom. Meeker v. Merit Systems 

Protection Board, 319 F.3d 1368 (Fed. Cir. 2003). Yet, priority consideration for 

a future vacancy is a remedy that provides prospective relief for the denial of the 

opportunity to compete, but it does not correct the agency’s error with respect to 

the actual position for which the agency denied the appellant consideration. In 

the context of a VEOA appeal, such relief would be inappropriate because VEOA 

requires the Board to do more than merely provide a remedy for a past wrong; it 

mandates that the Board “shall order the agency to comply with” the violated 

provisions and award compensation for any loss of wages or benefits suffered by 

the individual by reason of the violation. See Dean, 99 M.S.P.R. 533, ¶ 44 (under 

VEOA, an appellant whose veterans’ preference rights were violated with respect 

to a selection process is entitled to a selection process consistent with law). In 

addition, VEOA provides that the Board shall award an amount equal to back-pay 

as liquidated damages if it determines that the violation was willful. 5 U.S.C. 

§ 3330c(a). Therefore, where an agency violates a statute related to veterans’ 

preference by denying an appellant the right to compete for a particular position, 

the Board must craft a remedy that allows the appellant to compete for that 

position, allows the Board to determine whether the appellant suffered any loss of 

wages or benefits by reason of the violation, and, assuming that the Board finds 

 

violation involved. If the Board or court determines that such violation 

was willful, it shall award an amount equal to backpay as liquidated 

damages. 
13

that the violation was willful, allows the Board to determine whether the 

appellant might be entitled to backpay for the purposes of awarding liquidated 

damages. Reconstruction of the selection process requires the agency to comply 

with the provisions it violated, allows the Board to make the determinations 

necessary to award the appropriate relief, and, at the same time, is consistent with 

the principle that § 3304(f)(1) requires that agencies give preference eligibles the 

right to compete for particular positions but does not guarantee these preference 

eligibles a position. See Abell, 343 F.3d at 1384-85. Therefore, contrary to the 

agency’s argument, we reaffirm our determination in Dean that § 3330c 

authorizes the Board to require agencies to reconstruct a selection process when it 

has improperly prevented an appellant from competing for a position by violating 

such appellant’s rights with respect to a statute or regulation related to veterans’ 

preference. Accordingly, we find that the agency failed to establish that the 

administrative judge erred in ordering the agency to reconstruct the selection 

process under the circumstances of this case. 

ORDER

¶19 We ORDER the agency to reconstruct the selection process for the Equal 

Employment Specialist position under vacancy announcement KOEZ04056132R 

and to afford the appellant his right to compete for this position under 5 U.S.C. 

§ 3304(f)(1). See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. 

Cir. 1984). The agency must complete this action no later than 30 days after the 

date of this decision. 

¶20 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board's Order and to describe the 

actions it took to carry out the Board’s Order. The appellant, if not notified, 

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶21 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 
14

with the office that issued the initial decision in this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a). 

¶22 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 RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees, expert witness fees, and other litigation expenses. To be paid, you must 

meet the requirements set out at Title 5 of the United States Code (5 U.S.C.), 

section 3330c(b). The regulations may be found at 5 C.F.R. §§ 1201.202, 

1201.203 and 1208.25. If you believe you meet these requirements, you must file 

a motion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF 

THIS DECISION. You must file your attorney fees motion with the office that 

issued the initial decision on your appeal. 

NOTICE TO THE APPELLANT REGARDING

 YOUR RIGHT TO REQUEST DAMAGES

You may be entitled to be compensated by the agency for any loss of wages 

or benefits you suffered because of the agency’s violation of your right to 

compete for a position pursuant to 5 U.S.C. § 3304(f)(1). 5 U.S.C. § 3330c(a); 

5 C.F.R. § 1208.25(a). If you are entitled to such compensation, and the violation 

is found to be willful, the Board has the authority to order the agency to pay an 

amount equal to back pay as liquidated damages. 5 U.S.C. § 3330c(a); 5 C.F.R. 

§ 1208.25(a). You may file a petition seeking compensation for lost wages and 
15

benefits or damages with the office that issued the initial decision on you appeal 

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 

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: 

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, http://fedcir.gov/contents.html. Of particular relevance is the 
16

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: 

______________________________ 

Bentley M. Roberts, Jr. 

Clerk of the Board 

Washington, D.C. 
17

CERTIFICATE OF SERVICE 

 I certify that this Opinion and Order was sent today to each of the 

following: 

Electronic Mail James R. Walker 

24 Cannonhurst Cove 

Jackson, TN 38305 

Electronic Mail Steven L. Parker 

Department of the Army 

Areas III & IV Labor Counselor 

HQ, 19th ESC 

Office of the Staff Judge Advocate 

Unit 15015, Box 75 

APO, AP 96218-5015 

November 27, 2006 

(Date) Dinh Chung 

Case Management Specialist