                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     YOLANDA P. ROACH,                               DOCKET NUMBER
                  Appellant,                         DA-3330-15-0610-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: November 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Stanley R. Smith, Killeen, Texas, for the appellant.

           Jennifer Merkle, Esquire, Grand Prairie, Texas, for the agency.

           John T. LeMaster, Washington, D.C., 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 Emp loyment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 preference-eligible veteran currently employed with the
     agency as a GS-10 Safety and Occupational Health Specialist. Initial Appeal File
     (IAF), Tab 1 at 1, Tab 6 at 4, Tab 21 at 24. In March 2015, the agency announced
     a vacancy for the Safety and Occupational Health Manager (Environmental and
     Safety Compliance Administrator) position, GS-0018-12/13. IAF, Tab 10 at 49.
     The announcement was open to Federal Government employees nationwide and
     certain others, including “[p]reference eligibles or veterans who have been
     separated from the armed forces under honorable conditions after three years or
     more of active service.” Id. The appellant applied for the vacancy and was later
     notified that her application was reviewed but not referred to the selecting offic ial
     because she exceeded the age requirement for Federal law enforcement
     employment. IAF, Tab 2 at 7, Tab 10 at 34‑47.
¶3         After learning that she was not selected, the appellant filed a VEOA
     complaint with the Department of Labor (DOL) alleging that she was denied her
     right to compete for the position under 5 U.S.C. § 3304(f). IAF, Tab 2 at 8-11.
     During the investigation, the agency informed DOL that, in the final steps of
                                                                                          3

     processing the appellant’s application, it discovered that the appellant’s
     application status was inadvertently changed to ineligible based on age
     restrictions for Federal law enforcement employment.          IAF, Tab 7 at 57.    The
     agency claimed that the change was incorrect and that the appellant was ineligible
     for consideration because she did not meet a time-in-grade requirement (52 weeks
     at a GS-11 position) for promotion to the GS-12 position. Id. On September 11,
     2015, DOL informed the appellant of the agency’s error and that her case was
     officially closed. IAF, Tab 2 at 12.
¶4            On September 17, 2015, the appellant filed the instant VEOA appeal with
     the Board alleging a violation of her right to compete. IAF, Tabs 1-2. After
     filing her appeal, the agency informed her that the reason she was not selected for
     the position was her failure to meet the time-in-grade requirement. IAF, Tab 10
     at 15.
¶5            After conducting a hearing, the administrative judge denied the appellant’s
     request for corrective action under VEOA. IAF, Tab 42, Initial Decision (ID)
     at 11. She found that the appellant failed to meet the time-in-grade requirement
     and that the agency’s having eliminated the appellant from consideration on those
     grounds was not an action that denied the appellant her right to compete. ID
     at 10. She also found that the initial notification erroneously referenced the age
     requirement due to an administrative coding error that did not deny the appellant
     an opportunity to compete, as the agency’s initial determination was that the
     appellant was ineligible due to the time-in-grade requirement. Id. The appellant
     has filed a petition for review.      Petition for Review (PFR) File, Tab 1.       The
     agency has filed an opposition to the appellant’s petition. PFR File, Tab 3.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶6            The appellant argues on petition for review that the initial decision contains
     an erroneous interpretation of law regarding the administrative judge’s
     application of 5 U.S.C. § 3304(f)(1) and an erroneous finding of fact regarding
                                                                                                4

     her eligibility for the vacancy. PFR File, Tab 1 at 4. She also argues that the
     agency engaged in a prohibited personnel practice. Id. 2
¶7           The appellant argues on review that the administrative judge erred in her
     interpretation of 5 U.S.C. § 3304(f)(1). Id. at 4, 11-12. That section provides
     that:
               [p]reference eligibles or veterans who have been separated from th e
               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 own workforce under
               merit promotion procedures.
     5 U.S.C. § 3304(f)(1). The appellant asserts she was denied this right to compete
     because the agency erroneously determined that she failed to meet the age
     requirement for Federal law enforcement employment. PFR File, Tab 1 at 11-12.
¶8           We agree with the administrative judge’s finding that the appellant was
     afforded an opportunity to compete. As explained in the initial decision, record
     evidence demonstrated that the agency’s initial determination was that the
     appellant did not meet the time-in-grade eligibility requirement, but that a
     specialist incorrectly coded the reason for finding her ineligible , which resulted in
     the appellant receiving the notice regarding the age requirement. ID at 8, 10;
     IAF, Tab 10 at 15; Hearing Compact Disc (HCD) (testimony of M.M.).                      The
     appellant does not argue to the contrary on review.            In making that eligibility
     determination, the agency did not violate the appellant’s veterans’ preference
     rights.     See Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9
     (2000) (holding that VEOA does not exempt veterans from the eligibility criteria
     such as time-in-grade restrictions that would be applied to all candidates). The

     2
       In her petition for review, the appellant also argues that the initial decision is based on
     an erroneous interpretation of 5 U.S.C. § 2108(3). PFR File, Tab 1 at 4. It is unclear
     what the appellant’s challenge is to the administrative judge’s interpretation of 5 U.S.C.
     § 2108(3). That section defines “preference eligible” and there was no dispute before
     the administrative judge, nor is there any dispute on review, that the appellant was
     entitled to veterans’ preference rights.
                                                                                            5

      agency then eliminated the appellant from further consideration based on her
      ineligibility.   HCD (testimony of M.M.).       The Board has held that an agency
      does not violate an individual’s veterans’ preference rights by eliminating her
      from consideration because she is unqualified. Harellson v. U.S. Postal Service,
      113 M.S.P.R. 534, ¶ 11 (2010).
¶9          Further, by virtue of the appellant’s application being accepted, processed,
      and reviewed thoroughly enough by the agency for it to ultimately determine that
      she was ineligible for the position, we agree with the administrative judge’s
      finding that the appellant was afforded her opportunity to compete.                 The
      erroneous notification informing the appellant that she was deemed ineligible due
      to her age has no bearing on the agency’s initial determination that the appellant
      lacked the required time-in-grade, and thus, did not interfere with the appellant’s
      opportunity to compete.      Accordingly, we find no basis to disturb the initial
      decision in this regard. 3
¶10         The appellant also argues on review that the administrative judge erred in
      finding that she lacked the 52 weeks of service at the GS-11 level required to
      meet the eligibility requirement. PFR File, Tab 1 at 5, 12-13; see ID at 10.
¶11         The vacancy announcement set forth the time-in-grade requirement, which
      must be met unless otherwise excluded by regulation. IAF, Tab 10 at 51; see
      5 C.F.R.§ 300.604.     Specifically, 5 C.F.R.§ 300.604(a) requires that candidates
      for advancement to a position at GS-12 and above, such as the position at issue
      here, must have completed a minimum of 52 weeks in positions no more than one


      3
        The appellant also argues on review that the data-coding error and subsequent
      erroneous notification constituted harmful error. PFR File, Tab 1 at 9-12; see 5 U.S.C.
      § 7701(c)(2). The Board has jurisdiction over a harmful error claim in a VEOA appeal
      only when such claim is directly related to the appellant’s veterans’ preference. See
      Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 18 (2006) (finding that an
      administrative judge erred when she decided a harmful error claim that was unrelated to
      the appellant’s veterans’ preference). Here, the data-coding error is unrelated to the
      appellant’s veterans’ preference. Accordingly, we find that the Board lacks jurisdiction
      to review the appellant’s harmful error claim.
                                                                                        6

      grade lower (or the equivalent) than the position to be filled. The administrative
      judge found that the appellant lacked the required 52 weeks because she only
      served in a GS-11 position for 3 months from February 8 to May 31, 2015. ID
      at 10.
¶12            On review, the appellant challenges the administrative judge’s finding by
      claiming that she performed the duties of a GS-13 when she occasionally assumed
      the role of acting manager. PFR File, Tab 1 at 5. The appellant asserts that this
      experience, in addition to the 3 months during which she formally served
      in a GS-11 position, shows that she had acquired at least 52 weeks of experience
      at the required level. Id. at 5, 12‑13.
¶13            We agree with the administrative judge’s finding that the appellant lacked
      the sufficient time-in-grade. The appellant’s time working as an acting manager
      at the GS-13 level cannot be credited for purposes of the time-in-grade
      requirement.     See 5 C.F.R.§ 300.605(a) (stating that service while on detail is
      credited at the grade of the employee’s position of record, not the grade o f the
      position to which detailed). The initial decision contains a thorough discussion of
      the hearing testimony and other record evidence, which forms the basis for the
      administrative judge’s finding that the appellant lacked the required 52 weeks at a
      GS-11 level. ID at 6-10. Thus, the record reflects that the administrative judge
      considered the evidence, drew appropriate inferences, and made reasoned
      conclusions. Id. We find no reason to disturb the administrative judge’s findings
      in this regard. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
      (1997) (finding no reason to disturb the administrative judge’s findings when she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions); Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (same).
¶14            The appellant also argues on review that the agency engaged in a prohibited
      personnel practice. PFR File, Tab 1 at 4. However, because this appeal derives
      its jurisdiction from VEOA, the Board does not have jurisdiction to review the
                                                                                        7

      appellant’s prohibited personnel practice claim. See Goldberg v. Department of
      Homeland Security, 99 M.S.P.R. 660, ¶ 11 (2005) (stating that the Board cannot
      obtain jurisdiction over the appellant’s prohibited personnel practice claim
      through VEOA).
¶15         Accordingly, we affirm the administrative judge’s initial decision denying
      the appellant’s request for corrective action.

                      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 reques t 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
      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.
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      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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
