Cyril Oram v. Department of the Navy, 2022 MSPB 30

Appellant (preference-eligible disabled veteran) was appointed to a GS-12 IT Specialist position effective May 1, 2017.
On June 1, 2017, the agency posted a GS-12 vacancy under merit-promotion procedures and accepted applications from individuals outside its workforce (including veterans).
Appellant applied but was found ineligible under the agency’s interpretation of the 90-day rule (5 C.F.R. § 330.502) because he had served fewer than 90 days in his current appointment.
Appellant exhausted DOL administrative remedies under VEOA and appealed to the MSPB, alleging denial of the § 3304(f)(1) opportunity-to-compete right.
The administrative judge initially found nonfrivolous jurisdictional allegations but, after the agency relied on the Federal Circuit’s decision in Kerner, concluded that because appellant was a current Federal employee he could not prevail as a matter of law.
The Board denied the petition for review, held Kerner binding, and affirmed the initial decision, overruling prior Board decisions inconsistent with Kerner.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 3304(f)(1) (VEOA opportunity to compete) applies to a preference-eligible applicant who is already a Federal employee applying for a merit-promotion vacancy that accepts outside applicants	Oram: § 3304(f)(1) covers current employees; he was denied the opportunity to compete and is entitled to corrective action	Agency: Kerner controls — § 3304(f) and related provisions were aimed at initial appointments, not later intra‑Federal promotions; a current Federal employee cannot prevail	The Board followed Kerner: because appellant was a current Federal employee, he could not prevail under § 3304(f)(1) as a matter of law; prior Board decisions to the contrary are overruled on this point
Whether the administrative handling (separate docketing of a constructive adverse action claim; reliance on Kerner) or procedural rulings prejudiced appellant	Oram: administrative judge erred in docketing and reliance on Kerner; also challenged timeliness of PFR	Agency: PFR timely; separate docketing was appropriate given distinct claims and statutory bases; Kerner is binding precedent	The Board found the PFR timely, separate docketing proper, and no procedural error; Kerner is binding and dispositive

Kerner v. Department of the Interior, 778 F.3d 1336 (Fed. Cir. 2015) (held VEOA § 3304(f) does not provide a right to compete for current Federal employees seeking merit promotions; VEOA targeted at initial entry to Federal service)
Joseph v. Federal Trade Commission, 505 F.3d 1380 (Fed. Cir. 2007) (distinguishes competitive appointment rules and merit-promotion procedures with respect to veterans’ preference)
Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1357 (Fed. Cir. 2016) (discusses differences in veteran advantages between competitive appointment and merit-promotion processes)
Montgomery v. Department of Health & Human Services, 123 M.S.P.R. 216 (M.S.P.B. 2016) (explains VEOA jurisdictional elements and exhaustion requirement)