UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KATHY K. STRAND,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-3330-17-0063-I-1

DATE: July 5, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kathy K. Strand, Kansas City, Missouri, pro se.

Kristine H. Bell, Esquire, Fort Leavenworth, Kansas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and AFFIRM the initial decision AS 

MODIFIED. We MODIFY the initial decision to find that the Board has 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

jurisdiction over her appeal and DISMISS the appeal for failure to state a claim 

upon which relief can be granted. 

BACKGROUND

¶2 The appellant, a Training Instructor, GS-1712-13, with the agency’s 

Combined Arms Center (CAC), applied for a temporary promotion to Director,

CAC G5, GS-1701-14. Initial Appeal File (IAF), Tab 8 at 19, Tab 9 at 12-16, 

23-26. The appellant was deemed qualified for and interviewed for the position, 

but the panel conducting the interviews did not select her as one of the three 

applicants referred to the selecting official. IAF, Tab 1 at 5, Tab 9 at 18, 23-26. 

On October 19, 2016, the appellant learned she was not selected for the position. 

IAF, Tab 1 at 5, 8. 

¶3 On November 1, 2016, the appellant filed a Board appeal alleging she was 

unfairly not selected for the Director position, noting that her DD Form 214 was 

attached to her application, and that she had filed a whistleblowing complaint 

with the Office of Special Counsel. Id. at 3-5, 9-12. The administrative judge 

issued an order notifying the appellant of the requirements to establish Board 

jurisdiction over her claim under the Veterans Employment Opportunities Act of 

1998 (VEOA) and ordering her to file statements and documentation addressing 

exhaustion of her administrative remedy with the Department of Labor (DOL), 

her status as a preference eligible, and the statute or regulation relating to 

veterans’ preference that was violated. IAF, Tab 3 at 2-7. 

¶4 The appellant filed a response in which she alleged that the agency’s lack of 

internal procedures for promotion resulted in an adverse impact under the 

Uniform Guidelines. IAF, Tab 8 at 5. She also alleged that the agency 

committed prohibited personnel practices under 5 U.S.C. § 2302(b) when it gave 

another applicant preference and denied her the ability to compete using veterans’ 

preference, narrowly restricted the applicant pool to within the agency and by 

grade level, and moved the selectee to the position before her sel ection. Id.
3

at 5-6. The appellant also stated that “Board jurisdiction may exist where the 

non-selection is the product of discrimination based on uniformed service” and 

cited 38 U.S.C. §§ 3311, 4324 in support of this proposition. Id. at 6. The 

agency moved to dismiss the appeal, arguing that the appellant failed to establish 

jurisdiction because she did not allege a violation of her veterans’ preference 

rights. IAF, Tab 9 at 6-9. The agency further argued that, in the event the 

administrative judge found jurisdiction, the appeal should be dismissed for failure 

to state a claim upon which relief could be granted, because veterans’ preference 

does not apply to merit promotions limited to agency employees. Id. at 9-10.

¶5 The administrative judge issued an initial decision dismissing the appeal for 

lack of jurisdiction. IAF, Tab 11, Initial Decision (ID). The administrative judge 

found that it was not disputed that the appellant exhausted her administra tive 

remedy with DOL and made nonfrivolous allegations that she is a preference 

eligible and the action took place on or after the enactment of VEOA. ID at 3. 

However, he found that the appellant did not assert that the agency violated a 

statute or regulation relating to veterans’ preference, and that veterans’ 

preference did not apply to current employees who seek a promotion, particularly 

when merit promotion principles are used. ID at 3-4. Finally, the administrative 

judge found that the Board lacked jurisdiction in a VEOA appeal to consi der the 

appellant’s claims of prohibited personnel practices. ID at 4. The administrative 

judge also advised the appellant of her right to file a claim under the Uniformed 

Services Employment and Reemployment Rights Act of 1994 (USERRA). ID 

at 4-5.

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

the agency has filed an opposition. Petition for Review (PFR) File, Tabs 1, 3. 

On review, the appellant argues that she met her jurisdictional burden, and she is 

entitled to a hearing because the agency is not following its internal recruitment 

policy, the agency’s use of its internal recruitment policy instead of external 

recruiting denied her the ability to compete under veterans’ preference, and the 
4

agency failed to promote the employment and advancement of veterans under 

38 U.S.C. § 4214. PFR File, Tab 1 at 5-7.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in dismissing the appeal for lack of jurisdiction.

¶7 Generally, to establish Board jurisdiction over a veterans’ preference VEOA 

appeal brought pursuant to 5 U.S.C. § 3330a, an appellant must: (1) show that 

she exhausted her remedy with DOL; and (2) make nonfrivolous allegations that 

(i) she is a preference eligible within the meaning of VEOA, (ii) the action at 

issue took place on or after the October 30, 1998 enactment date of VEOA, and 

(iii) the agency violated her rights under a statute or regulation relating to 

veterans’ preference. 5 U.S.C. § 3330a(a); Lazaro v. Department of Veterans 

Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Haasz v. Department of Veterans 

Affairs, 108 M.S.P.R. 349, ¶ 6 (2008).

2

 An appellant need not state a claim upon 

which relief can be granted for the Board to have jurisdiction over a VEOA claim. 

Haasz, 108 M.S.P.R. 349, ¶ 6.

¶8 In this case, the record reflects, and it is undisputed, that the appellant 

showed that she exhausted her remedy with DOL and that she made nonfrivolous 

 

2 An appellant also may establish Board jurisdiction over a “right to compete” VEOA 

appeal brought under 5 U.S.C. § 3330a(a)(1)(B). To establish jurisdiction over such a 

claim, she must: (1) show that she exhausted her remedy with DOL; and (2) make 

nonfrivolous allegations that (i) she is a preference eligible or veteran within the 

meaning of 5 U.S.C. § 3304(f)(1), (ii) the action at issue took place on or after the 

enactment date of the Veterans’ Benefits Improvement Act of 2004, and (iii) the 

agency, in violation of 5 U.S.C. § 3304(f)(1), denied her the opportunity to compete 

under merit promotion procedures for a vacant position for which the agency accepted 

applications from individuals outside its own workforce. Becker v. Department of 

Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). Here, although the appellant alleged 

that the agency “violated my ability to compete” for the vacancy at issue using her 

veterans’ preference, her right to compete for the vacancy was not implicated because, 

as explained below, the agency did not accept applications from outside its own 

workforce. IAF, Tab 8 at 6; 5 U.S.C. § 3304(f)(1); see Piirainen v. Department of the 

Army, 122 M.S.P.R. 194, ¶ 8 (2015).
5

allegations that she is a preference eligible under 5 U.S.C. § 2108(3)(B) and that 

her nonselection for the vacancy at issue occurred after October 30, 1998. IAF,

Tab 1 at 5, Tab 8 at 7-8, 17, Tab 9 at 7. Therefore, the only remaining issue is 

whether the appellant made a nonfrivolous allegation that the agency violated her 

rights under a statute or regulation relating to veterans’ preference.

¶9 At the jurisdictional stage, an appellant’s claim that the agency violated her 

veterans’ preference rights should be liberally construed. Elliott v. Department of 

the Air Force, 102 M.S.P.R. 364, ¶ 8 (2006); Young v. Federal Mediation and 

Conciliation Service, 93 M.S.P.R. 99, ¶¶ 6-7 (2002) (citing the legislative history 

of VEOA for the proposition that it was intended to be a “user-friendly, yet 

effective” redress mechanism for the violation of veterans’ preference rights), 

aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Although the appellant’s response to the 

order on jurisdiction alleged violations of 5 U.S.C. § 2302(b), intertwined in the 

appellant’s allegations was her claim that the agency denied her the ability to 

compete using her veterans’ preference. IAF, Tab 8 at 6. Additionally, the

appellant alleged that her nonselection could be a violation of 38 U.S.C. §§ 3311

and 4324, which pertain, respectively, to veterans’ educational assistance and the 

enforcement of USERRA rights. Id. Pro se petitioners are not expected to frame 

issues with the precision of a common law pleading, and an appellant’s 

allegation, in general terms, that her veterans’ preference rights were violated is 

sufficient to meet the nonfrivolous allegation standard. Elliott, 102 M.S.P.R. 

364, ¶ 8; see Haasz, 108 M.S.P.R. 349, ¶ 7 (finding that the appellant’s allegation 

that the agency violated an unspecified law relating to veterans’ preference was 

sufficient to meet the nonfrivolous allegation requirement). We find that the 

appellant’s arguments were sufficient to make a nonfrivolous allegation that her 

rights under a statute relating to veterans’ preference was violated and modify the 

initial decision to find that the appellant established Board jurisdiction over her 

appeal.
6

Although the Board has jurisdiction over the appeal, it must be dismissed for 

failure to state a claim upon which relief can be granted.

¶10 We nevertheless dismiss the appellant’s request for corrective action

because she has failed to state a claim upon which relief can be granted. An 

appeal that is within the Board’s jurisdiction can be dismissed for failure to state 

a claim upon which relief can be granted if the appellant cannot obtain effective 

relief before the Board even if her allegations are accepted as true. Alford v. 

Department of Defense, 113 M.S.P.R. 263, ¶ 11 (2010), aff’d, 407 F. App’x 458 

(Fed. Cir. 2011). In appraising the sufficiency of an appeal, the Board will not 

dismiss an action for failure to state a claim unless it appears beyond doubt that 

the appellant can prove no set of facts in support of her claim that would entitle 

her to relief. Id. Dismissal for failure to state a claim is appropriate only if, 

taking the appellant’s allegations as true and drawing all reasonable inferences in 

her favor, she cannot prevail as a matter of law. Id. 

¶11 Below, the administrative judge placed the appellant on notice of her 

burden to show a genuine dispute of material fact in order to receive a hearing. 

The administrative judge stated in the jurisdictional order that, “If the appellant 

meets the burden of proving jurisdiction, he will be granted a hearing if he 

requested one and shows that there is a genuine dispute of material fact that must 

be resolved to determine whether the agency violated any of the rights discussed 

above.” IAF, Tab 3. The administrative judge also defined the terms “genuine” 

and “material,” as well as the preponderant evidence standard. Id. at 7. 

Furthermore, the appellant, on review, acknowledges that the Board may make a 

decision without a hearing in her case “if there is no dispute of material fact and 

one party must prevail as a matter of law” and then she sets out allegedly dispute d

facts. PFR File, Tab 1 at 7. However, none of these allegedly disputed facts go 

to the issue of whether the vacancy process utilized merit promotion procedures, 

and both parties agree that the vacancy process was merit promotion. Therefore, 

we find that the appellant had adequate notice of the standard and burden of proof 
7

she needed to prove jurisdiction. Davis v. Department of Defense, 105 M.S.P.R. 

604, ¶ 14 (2007).

¶12 In the initial decision, the administrative judge correctly observed that an 

employee is not entitled to veterans’ preference in the merit promotion process, or 

when an employee seeks a promotion or intra-agency transfer under an 

announcement limited to internal candidates. ID at 3-4; see Joseph v. Federal 

Trade Commission, 505 F.3d 1380, 1382 (Fed. Cir. 2007) (holding that an 

employee is not entitled to veterans’ preference in the merit promotion process); 

Slater v. U.S. Postal Service, 112 M.S.P.R. 28, ¶ 7 (2009) (finding that veterans’ 

preference does not apply when an employee seeks a promotion under an 

announcement limited to internal candidates). The appellant has conceded that 

the vacancy announcement at issue utilized the merit promotion process and 

limited applicants to “[c]urrent permanent Career or Career-Conditional Army 

employees with competitive status.” IAF, Tab 9 at 12, PFR File, Tab 1 at 4. She 

acknowledges that the agency advertised the vacancy internally as a temporary 

promotion and has not alleged that the agency considered applicants from outside 

of the agency. PFR File, Tab 1 at 6-7. Because eligibility for the temporary 

promotion was limited to candidates internal to the agency, the appellant was not 

entitled to veterans’ preference concerning this vacancy. The appellant contends 

that the agency did not retain documents pertaining to the selection and that she 

disputes material facts as to the selection process, but there are no material facts 

in dispute regarding the agency’s use of merit promotion procedures to make a 

selection for the vacancy at issue. Id. at 5-7. Thus, the appellant’s claim is not 

one on which corrective action under VEOA can be granted, and we dismiss her 

request for corrective action based on her failure to state a claim upon which 

relief can be granted. See Brown v. Department of Veterans Affairs, 247 F.3d 

1222, 1224-25 (Fed. Cir. 2001) (holding that the petitioners failed to state a claim 

upon which a request for relief could be granted because they were not entitled to 

veterans’ preference when seeking promotions or intra-agency transfers).
8

¶13 The appellant’s argument—that the agency’s decision to advertise the 

vacancy internally, instead of accepting applicants from outside of the agency, 

denied her the ability to compete under veterans’ preference—does not provide a 

basis for relief. IAF, Tab 8 at 6, PFR File, Tab 1 at 5-7. No provision of VEOA 

limits the agency’s ability to use the selection process that it deems most suitable 

to filling a particular vacancy. See Mann v. Department of the Army, 

450 F. App’x 970, 972-73 (Fed. Cir. 2011) (holding that the appellant’s 

contention that the agency violated VEOA in limiting consideration for the 

position to individuals within the agency was without merit); 3Joseph, 505 F.3d 

at 1384 (holding that, when the agency advertised a vacancy under both 

competitive-examining and merit-promotion procedures, no statutory or 

regulatory provision required the agency to limit itself to the 

competitive-examination process in making its final selection).

¶14 Moreover, the appellant argues that the agency is required under 38 U.S.C. 

§ 4214 to promote the employment and advancement of veterans, and that it 

failed to do so here.

4

 PFR File, Tab 1 at 5-7. Under 38 U.S.C. § 4214(a)(1), it is 

the policy of the United States to “promote the maximum of employment and job 

advancement opportunities within the Federal Government for qualified covered 

veterans[.]” However, our reviewing court has concluded that this general 

statement of purpose does not enlarge veterans’ preference to apply to promotions

and inter-agency transfers. Brown, 247 F.3d at 1224-25 (observing that 

section 4124(a) was enacted as part of the Vietnam Era Veterans’ Readjustment 

 

3

The Board may follow a nonprecedential decision of the Federal Circuit when, as here, 

it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662, 

¶ 13 n.9 (2016).

4 Although the appellant cites this statutory provision for the first time on review, she 

made a variation of this argument below insofar as she appeared to allege that the 

agency’s internal promotion process had an adverse effect on veterans, and so we 

briefly address this argument. IAF, Tab 8 at 5. 
9

Assistance Act of 1974, which accorded veterans’ preference only for initial 

employment).

¶15 The appellant’s other arguments concern the agency’s internal policies or 

do not implicate a statute or regulation pertaining to veteran’s preference, and we 

find them without merit. PFR File, Tab 1 at 5-7. For the reasons set forth above,

we find that the appellant has failed to state a claim upon which relief can be 

granted and dismiss her request for corrective action.

The administrative judge correctly found that the Board lacked jurisdiction to 

consider the appellant’s prohibited personnel practice claims.

¶16 The administrative judge correctly found that the Board lacked jurisdiction 

to consider the appellant’s claim that the agency committed prohibited personnel 

practices in a VEOA appeal. ID at 4; see Slater, 112 M.S.P.R. 28, ¶ 8. To the 

extent that the appellant may have filed a whistleblower reprisal complaint with 

OSC, she may file an individual right of action appeal with the Board’s regional 

office in accordance with the Board’s regulations. See 5 C.F.R. §§ 1209.5, 

1209.6.5 Finally, as set forth in the initial decision, the appellant may file a claim 

under USERRA in accordance with the Board’s regulations. See 5 C.F.R. 

§§ 1201.22; 1208.11-1208.16.

NOTICE OF APPEAL RIGHTS6

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

 

5

The appellant should carefully review the Board’s regulations to determine whether 

any individual right of action appeal she may file is timely. See 5 C.F.R. § 1209.5.

6

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.
10

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 an d 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

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. 
11

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

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 
12

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

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.7The court of appeals must receive your petition for 

 

7

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 
13

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

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. 
14

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