DeGerald R. Wilson v. Department of Education ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEGERALD R. WILSON, DOCKET NUMBER
Appellant, DC-3330-14-0298-I-1
v.
DEPARTMENT OF EDUCATION, DATE: August 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
DeGerald R. Wilson, San Antonio, Texas, pro se.
Eun Kim, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his nonselection appeal for lack of Board jurisdiction. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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).
¶2 In September 2013, the appellant applied for a position as an Economist
with the agency. Initial Appeal File (IAF), Tab 8 at 16-20. In November 2013,
the agency notified the appellant that he had been found “well qualified” for the
position but that he was not among the list of candidates referred to the selecting
official as “best qualified.” Id. at 10. The appellant appealed his nonselection to
the Board. The administrative judge dismissed that appeal for lack of jurisdiction
but docketed a new Veterans Employment Opportunities Act (VEOA) appeal
regarding the appellant’s nonselection based on new allegations in the appellant’s
pleadings. Wilson v. Department of Education, MSPB Docket No. DC-3443-14-
0239-I-1, Initial Decision at 2 (Jan. 8, 2014).
¶3 After docketing this VEOA appeal, 2 the administrative judge issued an
order directing the appellant to meet his burden of proving the Board’s
2
The appellant has two other similar VEOA appeals. Wilson v. Department of State,
MSPB Docket No. AT-3443-14-0269-I-1; Wilson v. Department of State, MSPB Docket
No. DC-3330-14-0354-I-1. Because the respondent in those appeals is a different
federal agency, we are adjudicating them separately from his appeal against the
Department of Education.
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jurisdiction. IAF, Tab 3. The appellant submitted a response, IAF, Tab 5, and
the agency submitted a motion to dismiss, IAF, Tab 6.
¶4 Without holding a hearing, the administrative judge dismissed the appeal
for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). The judge concluded
that the appellant failed to meet his burden of proving that he had exhausted his
administrative remedies with the Department of Labor (DOL), as instructed in the
jurisdictional order and required by 5 U.S.C. § 3330a(a)(d)(1). ID at 2-3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
¶6 The Board’s jurisdiction is not plenary; it is limited to those matters over
which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). An agency’s failure
to select an applicant for a vacant position is generally not appealable to the
Board. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir.
1998). However, an exception exists under VEOA.
¶7 The Board has held that, in order to establish jurisdiction over a VEOA
appeal, an appellant must: (1) show that he exhausted his remedy with DOL; and
(2) make nonfrivolous allegations that (i) he is a preference eligible within the
meaning of VEOA; (ii) the action at issue took place on or after the enactment
date of VEOA; and (iii) the agency violated his rights under a statute or
regulation relating to veterans’ preference. Alegre v. Department of Navy,
118 M.S.P.R. 424, ¶ 12 (2012). For an appellant to meet VEOA’s requirement
that he exhaust his remedy with DOL, he must establish that: (1) he filed a
complaint with the Secretary of Labor; and (2) the Secretary of Labor was unable
to resolve the complaint within 60 days or has issued a written notification that
the Secretary’s efforts have not resulted in resolution of the complaint. Id.; see
Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491, ¶ 8 (2012)
(explaining that the complaint to DOL must contain a summary of the allegations
that form the basis for the complaint). The purpose of this requirement is to
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afford DOL the opportunity to conduct an investigation that might lead to
corrective action before involving the Board in the case. Graves, 117 M.S.P.R.
491, ¶ 8.
¶8 Despite the jurisdictional order instructing him to prove that he had
exhausted his remedies with DOL, IAF, Tab 3 at 5, the appellant’s response was
silent on the issue, see IAF, Tab 5. Therefore, because the appellant failed to
provide any evidence that he filed a DOL complaint, the administrative judge
correctly found that the Board lacked jurisdiction over his VEOA claim. See
Wible v. Department of Army, 120 M.S.P.R. 333, ¶ 10 (2013) (the Board lacks
jurisdiction over a VEOA claim if an appellant does not provide any evidence that
he filed a DOL complaint because evidence of exhaustion with DOL is mandated
by statute).
¶9 In his petition for review, the appellant did not present any argument or
evidence that the administrative judge erred in dismissing his appeal. Instead, the
appellant vaguely asserts that DOL was contacted 3 to initiate a complaint on
February 10, 2014, after the administrative judge dismissed his Board appeal.
PFR File, Tab 1 at 2.
¶10 The Board’s practice is to adjudicate an appeal that was premature when
filed but becomes timely while pending before the Board. Wooten v. Department
of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). However, the appellant’s bare
assertion that a complaint has been initiated with DOL, without any supportive
evidence, does not establish that his appeal is now ripe. Even if a complaint were
initiated with DOL, as he alleges, the initiation of a complaint does not meet the
appellant’s jurisdictional burden of proving that he exhausted his administrative
remedies. See Burroughs v. Department of Defense, 114 M.S.P.R. 647, ¶¶ 8-9
3
The appellant’s petition states, “The United States Department of Labor was contacted
to initiate the Complaint Information Form, submitted by Fax, from Texas Workforce
Commission, San Antonio, Texas.” PFR File, Tab 1 at 2.
5
(2010), aff’d, 426 F. App’x 897 (Fed. Cir. 2011) (the mere filing of a complaint
with DOL is not sufficient to establish Board jurisdiction over a VEOA appeal).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States 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 United States 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 United
States 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.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. 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.