                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
                                                                                               4

     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.
