UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN JOSEPH DOYLE,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-3330-14-0919-I-2

DATE: February 1, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

John Joseph Doyle, Quincy, Massachusetts, pro se.

Emilia Muche Thompson, Esquire, Newport, Rhode Island, for the agency.

Melanie A. Andrews, Esquire, San Diego, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

granted the appellant’s request for corrective action in connection with his 

Veterans Employment Opportunities Act (VEOA) appeal. Generally, we grant 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

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). 

BACKGROUND

¶2 The appellant is a 10-point preference eligible who was, at all times 

relevant to this appeal, employed by the agency as a GS-14 Human Resources 

Specialist (Labor Employee Relations) in Washington, D.C. He applied under an 

agency announcement advertised on USAJOBS for the position of 

Administrative/Technical Specialist, NT-05, in Newport, Rhode Island. Doyle v. 

Department of the Navy, MSPB Docket No. DC-3330-14-0919-I-2, Appeal File 

(I-2 AF), Tab 3 at 22-25. The announcement, open March 19-21, 2014, stated 

that the position was subject to the Department of Defense Priority Placement 

Program and that eligibility was limited to “ICTAP eligibles.” Id. at 22. ICTAP,

or the Interagency Career Transition Assistance Program, “provides eligible 

displaced Federal employees with interagency selection priority for vacancies in 

agencies that are filling positions from outside their respective permanent 

competitive service workforces.” 5 C.F.R. § 330.701. The agency rated the 
3

appellant ineligible for the position on the basis that he was “not within the Area 

of Consideration as specified in the vacancy announcement”; that is, he was not 

eligible for priority placement under ICTAP. Doyle v. Department of the Navy, 

MSPB Docket No. DC-3330-14-0919-I-1, Initial Appeal File (IAF), Tab 10 at 9. 

After determining that no ICTAP-eligible employees had applied, the agency 

transferred a Department of the Interior employee, also a 10-point preference 

eligible, who previously had held the position at issue. I-2 AF, Tab 3 at 3-6, 26; 

Tab 4 at 4-5. Under these circumstances, the agency had the discretion to, and 

did, transfer the employee to the position without competition. 5 C.F.R. 

§ 335.103(c)(3)(v); I-2 AF, Tab 3 at 26.

¶3 The appellant filed a complaint with the Department of Labor (DOL) 

alleging that the agency had violated his right to compete under VEOA. IAF, 

Tab 1 at 10-12. Although determining that it “had merit,” DOL advised the 

appellant that it was unable to resolve the complaint, id. at 14, prompting him to 

file the instant Board appeal and to request a hearing, id. at 2. The administrative 

judge determined that the appellant had established the Board’s jurisdiction over 

the appeal, IAF, Tab 13 at 3-5, and the appellant subsequently withdrew his 

request for a hearing,

2

IAF, Tab 18 at 2. The administrative judge set a date for 

the close of the record, I-2 AF, Tab 2, and both parties submitted additional 

evidence and argument, I-2 AF, Tabs 3-6.

¶4 In an initial decision based on the written record, the administrative judge 

found that, in posting an announcement open to ICTAP eligibles, the agency 

signaled that it would accept applications from individuals outside its own 

workforce and that it was therefore required to accept applications from 

 

2

The appeal was thereafter dismissed without prejudice to allow the parties additional 

time to file evidence and argument. IAF, Tab 19, Initial Decision. The appeal was then 

automatically refiled, I-2 AF, Tab 2, and adjudication continued.
4

preference eligibles or qualifying veterans under 5 U.S.C. § 3304(f)(1)3and 

evaluate those applications under merit promotion procedures. I-2 AF, Tab 7, 

Initial Decision (ID) at 3-11. The administrative judge further found, based on 

Board precedent, that the agency’s decision to invoke its transfer authority does 

not negate the right of a preference eligible or covered veteran to compete under 

section 3304(f)(1). Montgomery v. Department of Health & Human Services, 

123 M.S.P.R. 216, ¶ 7 (2016); ID at 10-11. Accordingly, the administrative judge 

granted the appellant’s request for corrective action, ID at 1, 11, acknowledging 

that, while the appellant may not ultimately be deemed the best qualified for the 

vacancy at issue, he must be afforded fair consideration, ID at 11.

¶5 The agency has filed a petition for review. Doyle v. Department of the 

Navy, MSPB Docket No. DC-3330-14-0919-I-2, Petition for Review (PFR) File, 

Tab 3. The appellant has responded, PFR File, Tab 6, and the agency has replied 

to that response, PFR File, Tab 8.

ANALYSIS

¶6 On review, the agency argues that the initial decision is inconsistent with 

the September 12, 1995 Presidential Memorandum on Career Transition 

Assistance for Federal Employees. PFR File, Tab 3 at 8-15. Among other things, 

the agency argues that the Memorandum provided that it did not “create any right 

or benefit, substantive or procedural, enforceable by a party against the United 

States,” or its agencies. Id. at 9; Memorandum on Career Transition Assistance 

for Federal Employees, 1995 Pub. Papers 1354 (Sept. 12, 1995). The agency also 

notes that the Memorandum has the same force and effect as an executive order 

and has not been revoked or modified by any subsequent president or by 

 

3

Pursuant to 5 U.S.C. § 3304(f)(1),“[p]reference eligibles or veterans who have been 

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

active service may not be denied the opportunity to compete for vacant positions for 

which the agency making the announcement will accept applications from individuals 

outside its workforce under merit promotion procedures.”
5

Congress, and therefore it cannot be overridden by VEOA. PFR File, Tab 3 

at 10-15. The Memorandum directed the Office of Personnel Management (OPM) 

to promulgate implementing regulations.

¶7 Although this case was thoroughly briefed by the parties below, the agency 

only once referred to the Presidential Memorandum, I-2 AF, Tab 6 at 5, and did 

not submit it or argue, as it attempts to now, the intent of the Memorandum, or its

legal force and effect and relative standing vis-à-vis veterans’ preference rights 

and the VEOA statute. Nor did the agency address any of its specific language. 

It is well settled that the Board ordinarily will not consider an argument raised for 

the first time on petition for review absent a showing that it is based on new and 

material evidence not previously available despite the party’s due diligence. 

Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 19 n.12 (2016); Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In the instant case, the 

agency has offered no explanation for its failure to raise the 1995 Presidential 

Memorandum. In any event, the appellant is not attempting to assert his rights 

under ICTAP; he is asserting his rights under VEOA and the Veterans’ Benefits

Improvement Act of 2004.

¶8 The agency also argues that, in finding that the right to compete under 

VEOA applies in this situation, the administrative judge improperly deferred to

OPM’s interpretation of 5 U.S.C. § 3304(f)(1) as set forth in 5 C.F.R. § 335.106. 

PFR File, Tab 3 at 15-18. The agency contends that the interpretation “creates an 

unreasonable accommodation of the two governmental interests [those of 

displaced agency employees and those of preference eligibles and certain 

veterans] that cannot be enforced.” Id. at 17. 

¶9 As noted, 5 U.S.C. § 3304(f)(1) provides that preference eligibles and 

certain veterans “may not be denied the opportunity to compete for vacant 

positions for which the agency making the announcement will accept applications 

from individuals outside its own workforce under merit promotion procedures.” 

However, 5 C.F.R. § 335.106 provides that such individuals “may compete for 
6

vacancies under merit promotion when an agency accepts applications from 

individuals outside its own workforce.” As the administrative judge found, the 

Board considered this difference in language in Brandt v. Department of the Air 

Force, 103 M.S.P.R. 671, ¶¶ 10-13 (2006); ID at 7-8. There, the Board found that 

it was appropriate to defer to OPM’s interpretation of the statute, which was 

neither unreasonable nor illogical, and concluded, therefore, that the phrase 

“under merit promotion procedures” in section 3304(f)(1) should be regarded as 

modifying the verb “to compete” such that veterans must be permitted to compete 

for a position under merit promotion procedures when, as here, the agency is 

accepting applications from outside candidates. Brandt, 103 M.S.P.R. 671, 

¶¶ 12-13; ID at 7-8. Although the agency disagrees with the Board’s 

interpretation, suggesting other regulations to which the Board has not deferred, 

PFR File, Tab 3 at 18-20, the Brandt decision addresses the regulation at issue 

here in a precedential decision. As valid Board precedent, the administrative 

judge properly relied on the decision in Brandt, and the agency has not set forth a 

basis to disturb that decision. 5 C.F.R. § 1201.117(c)(1). 

¶10 The agency also argues that the administrative judge improperly consider ed 

language from OPM’s VetGuide, which specifically states that agencies are 

required to allow VEOA eligibles to apply for vacancies open to ICTAP 

candidates only. PFR File, Tab 3 at 15, 19-21. In considering the weight to be 

afforded that issuance, the administrative judge found, based on Board precedent, 

that, although the VetGuide is not entitled to the deference accorded to 

regulations, positions expressed in it may be entitled to some weight, depending 

in part on factors such as the consistency of OPM’s position, its formality, and its 

persuasiveness. ID at 8-9; Durand v. Environmental Protection Agency, 

106 M.S.P.R. 533, ¶ 14 (2007); Brandt, 103 M.S.P.R. 671, ¶ 14. Applying these 

factors, the administrative judge found no instance in which OPM has taken a 

contrary position regarding the rights of preference eligibles or certain veterans to

compete for a vacancy open to ICTAP eligibles only; that the VetGuide “consists 
7

of a formal document, prepared for publication—and in fact published—on the 

internet, with the apparent expectation that it would be relied on by agencies, 

employees, prospective employees, and other interested members of the public,” 

Brandt, 103 M.S.P.R. 671, ¶ 15; and that OPM’s interpretation of 5 C.F.R.

§ 335.106 is reasonable. ID at 8-9. On this basis, the administrative judge 

afforded deference to the position taken by OPM in the VetGuide. ID at 8-9. 

Although the agency argues against this deference, it has not, on review, 

challenged the administrative judge’s application of these factors.

ORDER

¶11 We ORDER the agency to reconstruct the hiring for the NT-05 

Administrative/Technical Specialist position at the Naval Undersea Warfare 

Center Division, Newport, Rhode Island, consistent with the right to 

consideration requirement set forth at 5 U.S.C. § 3304(f)(1). The Board has 

jurisdiction to consider an appellant’s claim of agency noncompliance with a 

Board order. See Kerr v. National Endowment for the Arts, 726 F.2d 730, 733 

(Fed. Cir. 1984). The agency must complete this action no later than 20 days 

after the date of this decision.

¶12 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 of the actions it has 

taken 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). 

¶13 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 

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).
8

¶14 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 and costs. To be paid, you must meet the requirements set forth 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 motion for attorney fees and costs 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 violation of your veterans’ preference 

rights. 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 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 benefits or damages with the office that issued 

the initial decision in your appeal WITHIN 60 CALENDAR DAYS OF THE 

DATE OF THIS DECISION.
9

NOTICE OF APPEAL RIGHTS4

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 

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: 

 

4

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

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 

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 
11

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 

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 
12

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.5The 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 

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. 

 

5

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. 
13

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