Suzanne Alyce Kopec v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SUZANNE ALYCE KOPEC, DOCKET NUMBER

Appellant, PH-3330-14-0320-I-1

v.

DEPARTMENT OF VETERANS DATE: January 20, 2016

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Suzanne Alyce Kopec, Warminster, Pennsylvania, pro se.

Lauren Russo and Gregory Kevin Weller, Philadelphia, Pennsylvania, for

the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied her request for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA). For the reasons set forth below, we GRANT

the petition for review. We AFFIRM the initial decision insofar as the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

administrative judge found that the agency did not violate the appellant’s

veterans’ preference rights 2 and did not violate the appellant’s right to compete as

to the peer specialist position, and REVERSE the initial decision insofar as the

administrative judge determined that the agency did not violate the appellant’s

right to compete as to the peer apprentice position.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 At issue in this appeal is the appellant’s nonselection for two positions,

GS-05 peer apprentice and GS-06/07 peer specialist. Initial Appeal File (IAF),

Tab 1 at 4, 6, Tab 3 at 8, Tab 8 at 6, 15-16. 3 The agency posted two external

announcements, listing the positions as open from April 1 to June 3, 2013. 4 IAF,

Tab 8 at 6, 15. Both announcements were listed as “open [and] continuous,”

meaning that the applications for qualified candidates would remain on file for

1 year and be considered as additional vacancies became available. Id. at 6, 18.

Individuals hired were to provide mentally ill veterans with support in recovery

and in navigating the Veterans Administration system. Id. at 64, 67-68. The

agency required that an applicant be a veteran recovered from, or in the process

of recovering from, a mental health condition. Id. at 64, 69.

¶3 Both the peer apprentice and peer specialist positions are ordinarily in the

competitive service. Petition for Review (PFR) File, Tab 1 at 4-5, Tab 6 at 4.

However, agency policy at the time provided that appointments could be made

under Schedule A, 5 C.F.R. § 213.3102(u), which permits an agency to except

appointments of individuals with intellectual, severe physical, or psychiatric

2

We modify the initial decision to find that the agency met its obligation to follow

veterans’ preference principles as far as administratively feasible. This was an issue

not addressed by the administrative judge below.

3

The agency also refers to these positions as peer support apprentice and peer support

specialist. IAF, Tab 18 at 4 n.1 & n.2. For the sake of clarity, we will refer to these

positions as peer apprentice and peer specialist.

4

The announcement numbers were PHL-13-LCo-868113-P2P and PHL-13-LCo-

866838-P2P. IAF, Tab 8 at 6, 15.

3

disabilities from the competitive service. IAF, Tab 8 at 60. On April 30, 2013, a

Human Resources Specialist sent a “Non-Competitive Candidate Referral List”

for the peer apprentice position to the hiring official. IAF, Tab 18 at 20, 22. The

certificate also was referred to as a “Merit Referral List.” Id. at 22. However,

instructions included with the list indicated that merit promotion procedures

would not be used and that candidates could be selected noncompetitively. 5 Id.

at 23.

¶4 The appellant applied for the peer apprentice position on May 17, 2013, and

for the peer specialist position on June 3, 2013. IAF, Tab 3 at 8, Tab 8 at 4. The

parties do not dispute that she is a 10-point preference eligible. PFR File, Tab 6

at 7, Tab 8 at 4, 7-8.

¶5 On May 31, 2013, the hiring official selected two applicants from the

April 30, 2013 Non-Competitive Candidate Referral List for the apprentice

position using the Schedule A hiring authority described at 5 C.F.R.

§ 213.3102(u). IAF, Tab 10 at 2, Tab 18 at 20. According to the Standard

Form 50s for the selectees, both were entitled to five veterans’ preference points.

IAF, Tab 18 at 46-47. On September 25, 2013, the agency notified the appellant

that she was not selected for the peer apprentice position, but that she was

deemed eligible and her name would remain on the applicant list for 1 year. 6

IAF, Tab 16 at 3, Tab 17 at 4.

¶6 The agency initially designated the appellant as ineligible for the peer

specialist position in error, believing that she did not provide the required peer

support certification. IAF, Tab 8 at 71, Tab 18 at 43. The agency later corrected

5

The appellant had not yet applied, and therefore her name was not included on the list.

IAF, Tab 18 at 23-37.

6

Although the agency sent most nonselected applicants for the peer apprentice position

notification of their qualification and eligibility on July 23, 2013, the letters for the

appellant and 22 other candidates were not sent due to a “system failure.” IAF, Tab 18

at 21. The agency later sent notices to all 23 of the remaining applicants, including the

appellant. IAF, Tab 16 at 3, Tab 17 at 4.

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the error. IAF, Tab 18 at 21. No applicants were selected for this vacancy. Id.

On December 16, 2013, the agency notified the appellant that she was deemed

eligible and that she would remain on the applicant list for 1 year. IAF, Tab 16

at 3, Tab 17 at 5.

¶7 After the appellant exhausted her administrative remedies with the

Department of Labor (DOL), she filed the instant appeal. IAF, Tab 1 at 5, Tab 3

at 3-12. The appellant withdrew her request for a hearing. IAF, Tab 10 at 2. The

administrative judge issued a close-of-record order, to which both parties

responded. 7 IAF, Tabs 14-18, 21-23. After the close of record, the

administrative judge issued an initial decision, finding that the Board had

jurisdiction over the appellant’s claims, but denying her request for corrective

action. 8 IAF, Tab 25, Initial Decision (ID) at 2 & n.2, 8. Regarding the peer

apprentice position, the administrative judge found that the agency did not violate

the appellant’s right to compete because it filled the vacancies with

noncompetitive appointments without using merit promotion procedures. ID at 6.

He further found that the agency did not violate the appellant’s veterans’

preference rights because Schedule A appointments, such as the peer apprentice

appointments at issue here, are exempt from the regulatory requirements for

7

In identifying the relevant law for the appellant, who was (and remains) pro se, the

administrative judge advised the appellant of how to prove a VEOA claim for a

violation of veterans’ preference rights. IAF, Tab 14 at 2. Because the appellant raised

an alleged denial of her right to compete under VEOA, IAF, Tab 1 at 4, 6, the

administrative judge also should have provided the appellant with notice of her burden

of proof and the kind of evidence she needed to submit to the Board to adjudicate this

claim, see generally Goodnight v. Office of Personnel Management, 49 M.S.P.R. 184,

188 (1991) (remanding an appeal because the administrative judge did not advise the

pro se appellant before the record closed of her burden and the evidentiary

requirements). However, any notice deficiency was cured by the initial decision, which

advised the appellant of her burden of proof concerning a right-to-compete claim and

analyzed the evidence in the record. ID at 5-6; see King v. Office of Personnel

Management, 112 M.S.P.R. 522, ¶ 8 (2009) (finding that the administrative judge’s

failure to inform the appellant of a required element of his retirement claim was cured

by the initial decision).

8

After the record closed, a new administrative judge was assigned. IAF, Tabs 20, 24.

5

posting competitive-service vacancies and for applying veterans’ preference. ID

at 7.

¶8 The appellant has filed a timely petition for review, the gravamen of which

is that the positions at issue are in the competitive service, which required the

agency to consider her applications, follow competitive-service posting

requirements, and apply veterans’ preference rules in making its selections. PFR

File, Tab 1 at 4-5; see Roche v. U.S. Postal Service, 828 F.2d 1555, 1558 (Fed.

Cir. 1987) (holding that “[p]ro se petitioners are not expected to frame issues

with [legal] precision”). Although the agency initially did not respond to the

petition for review, the Clerk of the Board issued an order seeking additional

information. PFR File, Tab 3. Both parties have responded to the Clerk’s order.

PFR File, Tabs 6, 8.

¶9 The Board has jurisdiction over two types of VEOA claims: (1) the denial

of a right to compete; and (2) the violation of a statute or regulation relating to

veterans’ preference. 9 See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference

claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (right-to-compete claims); see

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

(analyzing a VEOA claim to determine under which theory it belonged). The

appellant has raised both types of claims here. PFR File, Tab 1 at 4.

¶10 First, to prevail on the merits of a right-to-compete VEOA claim, the

appellant must prove by preponderant evidence that: (1) she exhausted her

remedy with DOL; (2) she is a veteran within the meaning of 5 U.S.C.

§ 3304(f)(1); (3) the action at issue took place on or after the December 10, 2004

enactment date of the Veterans’ Benefits Improvement Act of 2004; and (4) the

agency 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 in violation of 5 U.S.C. § 3304(f)(1). Becker v.

9

On review, neither party challenges the administrative judge’s finding of Board

jurisdiction, and we see no basis to disturb that finding.

6

Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010) (setting forth these

elements in terms of the appellant’s lesser jurisdictional burden); see Graves v.

Department of Veterans Affairs, 114 M.S.P.R. 209, ¶ 19 (2010) (reflecting that

the appellant’s burden on the merits of a right-to-compete claim is

preponderant evidence).

¶11 Second, to prevail on the merits of a veterans’ preference claim, the

appellant must prove by preponderant evidence that: (1) she exhausted her

remedy with DOL; (2) she is a preference eligible within the meaning of VEOA;

(3) the action at issue took place on or after the October 30, 1998 enactment date

of VEOA; and (4) the agency violated her rights under a statute or regulation

relating to veterans’ preference. See Lazaro v. Department of Veterans

Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012) (setting forth these elements in

terms of the appellant’s lesser jurisdictional burden); Isabella v. Department of

State, 106 M.S.P.R. 333, ¶¶ 21-22 (2007) (finding that to prevail on the merits,

the appellant must prove these elements by preponderant evidence), aff’d on

recons., 109 M.S.P.R. 453 (2008). A statute or regulation “relating to veterans’

preference” under VEOA is one that stands in some relation to, has a bearing on,

concerns, and has some connection with veterans’ preference rights. Dean v.

Department of Agriculture, 99 M.S.P.R. 533, ¶ 17 (2005), aff’d on recons.,

104 M.S.P.R. 1 (2006).

¶12 The parties do not dispute that the appellant exhausted her claims with DOL

and that she is both a preference-eligible veteran and a veteran under

section 3304(f)(1). PFR File, Tab 6 at 7, Tab 8 at 4, 7-8; IAF, Tab 3 at 3-13;

see 5 U.S.C. § 3304(f)(1). Further, the incidents at issue took place in 2013.

IAF, Tab 18 at 20-21. Thus, the only remaining issue in a right-to-compete claim

is whether the agency denied the appellant a right to compete under merit

promotion procedures for a vacant position for which the agency accepted

applications from individuals outside its own workforce in violation of 5 U.S.C.

§ 3304(f)(1). Likewise, the only remaining issue in a veterans’ preference claim

7

is whether the agency violated a statute or regulation relating to

veterans’ preference.

The administrative judge erred in part by finding that the agency did not violate

the appellant’s right to compete as to the peer apprentice vacancy.

¶13 The appellant argues that her right to compete was triggered because the

agency accepted applicants outside its workforce. PFR File, Tab 1 at 4; see IAF,

Tab 22 at 7-8, 10. The administrative judge found that the appellant was not

entitled to compete for the peer apprentice vacancy announcement because the

agency filled the positions outside the competitive service without the use of

merit promotion procedures. ID at 6. He further found that her right to compete

for the peer specialist vacancy was not violated because no one was hired. ID

at 7.

¶14 As for the peer apprentice position, we agree with the appellant’s argument

that because the agency accepted applications from individuals outside of its own

workforce, she had a right to compete under 5 U.S.C. § 3304(f)(1). See Brandt v.

Department of the Air Force, 103 M.S.P.R. 671, ¶ 12 (2006) (citing 5 C.F.R.

§ 335.106, which states that veterans “may compete for vacancies under merit

promotion when an agency accepts applications from individuals outside its own

workforce”). Therefore, the appellant has proven that the agency violated her

right to compete as to that position.

¶15 We turn now to the peer specialist position. According to the appellant, the

agency’s delay in notifying her that it did not consider her to be qualified caused

her to lose her opportunity to correct that error and therefore compete for the

position. PFR File, Tab 1 at 4. We find the appellant’s argument is not

persuasive because no one was selected for the peer specialist vacancy. PFR File,

Tab 1 at 4; see Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 (2002)

(holding that an agency’s cancelation of a vacancy announcement without making

a selection does not violate veterans’ preference laws), aff’d, No. 02-3270, 2008

WL 5753074 (Fed. Cir. Jan. 10, 2008). When an appellant applies for a vacancy

8

announcement under which the agency ultimately makes no selection, the Board

denies the request for corrective action for lack of an available remedy. Jones v.

Department of Health & Human Services, 119 M.S.P.R. 355, ¶¶ 14, 16, aff’d,

544 F. App’x 976 (Fed. Cir. 2013). Therefore, we affirm the administrative

judge’s finding that the appellant’s right-to-compete claim fails as to the peer

specialist position. ID at 7.

The administrative judge correctly found that the agency did not violate the

appellant’s veterans’ preference rights.

¶16 The appellant argues that her veterans’ preference rights were violated

because: (1) the agency did not follow the posting requirements for

competitive-service positions; (2) it appears that the agency made its decision to

use an excepted-service hiring authority after the fact; and (3) the agency did not

consider veterans’ preference “as far as administratively feasible.” PFR File,

Tab 1 at 4-5.

¶17 As to the first argument, we agree with the administrative judge that the

agency was not required to follow the posting requirements for

competitive-service vacancy announcements. 10 ID at 7; see 5 C.F.R.

§ 330.104(a)(6) (requiring that a competitive-service vacancy announcement

include information regarding “how receipt of applications will be . . .

considered, such as by cutoff dates in open continuous announcements”).

¶18 As to the second argument, we disagree with the appellant that the timing of

the agency’s decision to use the Schedule A hiring authority at issue here was

improper. Most civilian positions in the executive branch are in the competitive

service unless specifically excepted. 11 5 U.S.C. §§ 2102(a), 2103(a); Isabella v.

10

In light of this finding, we vacate as unnecessary the administrative judge’s alternate

finding that 5 C.F.R. § 330.104 is not a law, rule, or regulation implicating veterans’

preference. ID at 7.

11

The appellant argues that because appointments to peer specialist positions are made

under 38 U.S.C. § 7402(b)(13), the positions must be placed in the competitive service.

IAF, Tab 22 at 5. However, she did not provide, and we are unable to locate, any

9

Department of State, 102 M.S.P.R. 259, ¶ 12 (2006); 5 C.F.R. § 212.101(a)(1).

The Office of Personnel Management (OPM) has established four schedules,

Schedules A through D, under which appointments may be excepted from the

competitive service. 5 C.F.R. §§ 213.102(b)(3)(i), .103(a). As to Schedule A,

OPM also has provided a list of hiring authorities for the “[e]ntire executive civil

service.” 5 C.F.R. § 213.3102. Among them is the Schedule A hiring authority

used by the agency here, the purpose of which is to enable the appointment of

individuals with “intellectual disabilities, severe physical disabilities, or

psychiatric disabilities.” 5 C.F.R. § 213.3102(u); IAF, Tab 18 at 46-47. The

position itself is not excepted from the competitive service under this hiring

authority. See 5 C.F.R. § 213.3102(u). Rather, as the administrative judge found,

appointments made under section 213.3102(u) are designated as excepted service

when, as here, they are filled by a particular class of appointee. Van Wersch v.

Department of Health & Human Services, 72 M.S.P.R. 662, 665-66 (1996);

5 C.F.R. § 213.102(c)(2); ID at 3-4.

¶19 An agency may except a position from the competitive service, as occurred

here, only as necessary for good administration. 5 U.S.C. § 3302(1); Dean v.

Office of Personnel Management, 115 M.S.P.R. 157, ¶ 19 (2010); 5 C.F.R.

§ 2103.3102(u); see 5 U.S.C. § 1104(a)(1) (permitting the President to delegate

“authority for personnel management functions” to OPM); 5 C.F.R. § 1.2

(providing, in OPM regulations, that the competitive service includes all civilian

executive branch positions unless excepted by statute or OPM). As to the peer

apprentice vacancies, we find the agency’s use of Schedule A to hire two

requirement that such appointments be made in the competitive service. Id. If she is

arguing that the requirements of title 5 apply to appointments under

section 7402(b)(13), we disagree. As the administrative judge observed, these are not

“hybrid” positions to which many of the title 5 requirements apply. ID at 2 n.4; see

IAF, Tab 8 at 58-62; see also 38 U.S.C. § 7403(f)(3) (providing for certain title 5 rights

for positions incorporated by reference to other statutory sections, not including

section 7402(b)(13)).

10

individuals was necessary for good administration. It is axiomatic that the use of

the section 213.3102(u) Schedule A hiring authority is necessary for good

administration because its purpose is to increase the hiring of individuals with

intellectual, severe physical, and psychiatric disabilities. 5 C.F.R. § 213.3102(u).

The purpose of this hiring authority is to “improve[] the Federal Government’s

ability to hire persons with [the identified] disabilities . . . [and] remove barriers

and increase employment opportunities for persons with disabilities.” Excepted

Service-Appointment of Persons with Disabilities and Career and

Career-Conditional Employment, 71 Fed. Reg. 42,241 (July 26, 2006). Use of

section 213.3102(u) is within an agency’s discretion. Id. at 42,244. However,

agencies have been directed by executive order to “increase utilization of the

Federal Government’s Schedule A excepted-service hiring authority for persons

with disabilities.” Exec. Order No. 13,548, § 2(d), 75 Fed. Reg. 45,039-45,040

(July 26, 2010). Therefore, we find that the use of a Schedule A hiring authority

was proper.

¶20 Although OPM describes Schedule A appointments generally as applying to

positions, the text of 5 C.F.R. § 213.3102(u) reflects that it actually applies to

individuals. See generally 5 C.F.R. §§ 6.2, 213.3101(u). For example, it refers to

the appointment of “a person” who has a disability within the scope of the

regulation; requires an agency to seek proof of the individual’s disability; and

anticipates that an agency will make an individualized determination regarding

whether to place the individual in a temporary, time-limited, or permanent

appointment. 5 C.F.R. § 213.3102(u)(1), (3)(i), (4), (5). Therefore, although an

agency may not use a hiring authority after having posted vacancies to

retroactively except the position itself from the competitive service, we

nonetheless find it proper for an agency to decide to appoint individuals using

section 213.3102(u) after having posted the vacancies.

¶21 As to the appellant’s third argument, we modify the initial decision to find

that the agency met its obligation to follow veterans’ preference principles as far

11

as administratively feasible. 12 PFR File, Tab 1 at 5. OPM has determined that

Schedule A positions are exempt from excepted-service appointment

procedures. 5 C.F.R. § 302.101(c)(6). An agency is required to “follow the

principle of veteran preference as far as administratively feasible.” 5 C.F.R.

§ 302.101(c). Concerning excepted-service positions that are not subject to

examination, an agency may meet this requirement by considering veterans’

preference as a positive factor. Patterson v. Department of the Interior, 424 F.3d

1151, 1159 (Fed. Cir. 2005); Jarrard v. Social Security

Administration, 115 M.S.P.R. 397, ¶ 15 (2010), aff’d, 669 F.3d 1320 (Fed. Cir.

2012). We find that it is self-evident that the agency viewed veterans’ preference

status as a positive factor in the selection process because the only qualified

applicants were veterans who had recovered or were recovering from a mental

health condition. IAF, Tab 8 at 8-9, Tab 18 at 46-47; 38 U.S.C. § 7402(b)(13)(A)

(requiring that an individual appointed as a peer specialist must “be a veteran who

has recovered or is recovering from a mental health condition”). Therefore, we

find that the administrative judge correctly determined that the agency did not

violate the appellant’s veterans’ preference rights.

The appeal is not moot.

¶22 The agency has moved to dismiss the appeal as moot. PFR File, Tab 7. It

provides evidence that it has offered to the appellant, for settlement of the appeal,

positions as a peer specialist and peer apprentice. Id. at 5, 15, 19. However,

because the agency’s offer of relief is insufficient to render the appeal moot, we

deny the agency’s motion. 13

12

The administrative judge did not address this argument, which the agency raised

below, in the initial decision. See ID; IAF, Tab 21 at 8.

13

On March 31, 2015, the agency filed a motion for leave to file a supplemental brief in

response to the appellant’s response to the agency’s motion to dismiss. PFR File,

Tab 11. On April 8, 2015, the appellant filed a response opposing the agency’s motion

for leave and alternatively requesting an opportunity to respond, should the Board grant

the agency’s request to file supplemental brief. PFR File, Tab 13. In light of the

12

¶23 An appeal will be dismissed as moot when, by virtue of an intervening

event, the Board cannot grant any effectual relief in favor of the appellant, as

when the appellant, by whatever means, obtained all of the relief she could have

obtained had she prevailed before the Board and thereby lost any legally

cognizable interest in the outcome of the appeal. Washburn v. Department of the

Air Force, 119 M.S.P.R. 265, ¶ 12 (2013).

¶24 Under VEOA, a prevailing party is entitled to the following relief:

(1) agency compliance with the statute of regulation relating to veterans’

preference that the agency violated; (2) compensation for lost wages of benefits

that resulted from the violation; and (3) attorney fees, expert witness fees, and

litigation expenses. 5 U.S.C. § 3330c. Further, if the violation was willful and

the appellant is entitled to lost wages and benefits, she also is entitled to receive

liquidated damages equal to lost wages and benefits. 5 U.S.C. § 3330c(a).

¶25 Generally, where an agency violated an appellant’s right to compete, an

appellant is not automatically entitled to the position sought; rather, she is

entitled to a selection process consistent with law. Washburn, 119 M.S.P.R. 265,

¶ 13. If the appellant is selected, the agency must pay her lost wages or benefits

as a result of her improper nonselection. Williams v. Department of the

Air Force, 116 M.S.P.R. 245, ¶ 13. If she had such losses, the appellant then may

be entitled to seek liquidated damages. 5 U.S.C. § 3330c(b).

¶26 As discussed above, the agency violated the appellant’s right to compete

concerning the peer apprentice position. If, after restructuring the hiring process,

the agency selects the appellant for the position, then she will be entitled to any

lost wages or benefits she incurred as a result of the violation. Accordingly, the

appeal is not moot.

Board’s disposition as to the agency’s motion to dismiss, the Board denies the agency’s

and the appellant’s motions.

13

ORDER

¶27 We ORDER the agency to reconstruct the selection process for the peer

apprentice position, giving consideration to the appellant and any other

preference eligible or veteran consistent with 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 60 days after the date of this decision.

¶28 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).

¶29 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).

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 out at title 5 of

the U.S. Code (5 U.S.C.), sections 7701(g), 1221(g), 1214(g), or 3330c(b);

or 38 U.S.C. § 4324(c)(4). The regulations may be found at 5 C.F.R.

§§ 1201.201, 1201.202, and 1201.203. 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.

14

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.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. 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 the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,

2012). You may read this law as well as other sections of the U.S. Code, at our

15

website, http://www.mspb.gov/appeals/uscode.htm. 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.

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 Merit Systems Protection Board neither endorses the services

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.