Midyett v. MSPB , 594 F. App'x 969 ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
F. ALLAN MIDYETT,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3131
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-3330-12-0569-I-1.
______________________
Decided: December 3, 2014
______________________
F. ALLAN MIDYETT, of Fayetteville, Arkansas, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
______________________
2 MIDYETT v. MSPB
Before O’MALLEY, CLEVENGER, and BRYSON,
Circuit Judges.
PER CURIAM.
F. Allen Midyett appeals from the final decision of the
Merit Systems Protection Board (“Board”) dismissing Dr.
Midyett’s claims under the Veterans Employment and
Opportunities Act, 5 U.S.C. §§ 3330a–c (2012) (“VEOA”),
for failure to exhaust administrative remedies with the
Department of Labor (“DOL”). Because we agree that the
Board lacked jurisdiction over Dr. Midyett’s appeal, we
affirm.
BACKGROUND
The Veterans Health Care System of the Ozarks hired
Dr. Midyett as a radiologist on November 2, 2010, pursu-
ant to the Department of Veterans Affairs’ (“VA”) hiring
authority under 38 U.S.C. § 7401(1). Dr. Midyett began a
two-year probationary period, starting on November 21,
2010, as a condition for his employment.
In late 2011 and early 2012, the Chief of Radiology,
Dr. Kathryn Witztum, and the Medical Center Director,
Dr. Mark Enderle, instituted a series of review procedures
that culminated in the initiation of a Summary Review by
a Professional Standards Board to determine if separation
from federal service would be appropriate for Dr. Midyett.
On February 21, 2012, the Professional Standards Board
found that Dr. Midyett had participated in a pattern of
concerning conduct and provided substandard care. As a
result, the VA discharged Dr. Midyett effective April 6,
2012.
On August 1, 2012, Dr. Midyett filed an appeal with
the Board, claiming, inter alia, a violation of veterans’
preference rights under VEOA, discrimination on the
basis of his military status, and retaliation for whistle-
MIDYETT v. MSPB 3
blower disclosures. 1 The Administrative Judge (“AJ”)
issued a jurisdictional order explaining what evidence and
argument Dr. Midyett would need to produce to meet his
burden to prove that the Board has jurisdiction over his
VEOA claim under 5 U.S.C. § 3330a(a)(1). In response,
Dr. Midyett stated that his VEOA complaint had been
filed with the DOL and the Office of Special Counsel
(“OSC”), and was still pending with the OSC, thus meet-
ing the administrative exhaustion requirement of
§ 3330a. 2 The government moved to dismiss Dr. Midyett’s
VEOA claim, arguing that Dr. Midyett’s response pre-
sented inadequate evidence to show jurisdiction under
§ 3330a. Dr. Midyett’s representative, in her declaration,
averred that Dr. Midyett filed his VEOA, whistleblower,
and USERRA claims with the DOL. Her declaration
further maintained that the DOL assigned the entire
complaint to OSC. The declaration noted that Dr. Mid-
yett mistakenly asserted in his prior response to the
Board that the VEOA claim remained pending with the
1 Dr. Midyett’s Uniformed Services Employment
and Reemployment Rights Act of 1994 (“USERRA”) claim
and individual right of action (“IRA”) claim were adjudi-
cated separately. Midyett v. Dep’t of Veterans Affairs, 121
M.S.P.R. 78, 78 (2014) (“Final Order”). The USERRA
appeal was dismissed for lack of jurisdiction, and the
initial decision became final on April 12, 2013. Id. at 78
n.2. His IRA appeal was pending at the time of the
Board’s review. Id. at 78 n.3.
2 In a declaration filed by Dr. Midyett’s representa-
tive, Diane Midyett, on November 14, 2012, Ms. Midyett
states that Dr. Midyett filed his VEOA complaint with the
DOL on June 17, 2012. Dr. Midyett asserts that a DOL
representative told him to refile his complaint, and Dr.
Midyett purportedly refiled his claims with the DOL and
OSC on July 25, 2012.
4 MIDYETT v. MSPB
OSC, and that the OSC had actually informed Dr. Mid-
yett that the VEOA claim was no longer with the agency.
On March 8, 2013, the AJ issued his Initial Decision.
Midyett v. Dep’t of Veterans Affairs, No. DA-3330-12-0569-
I-1, 2013 MSPB LEXIS 1260 (M.S.P.B. March 8, 2013).
The AJ found that Dr. Midyett had failed to meet his
burden to prove the Board’s jurisdiction over the VEOA
claim. Id. at *6–10. First, the AJ concluded that Dr.
Midyett presented insufficient evidence that he exhausted
his administrative remedies with the DOL. Id. at *7–9.
The AJ further determined that Dr. Midyett failed to
make a nonfrivolous allegation of a violation of a statute
or regulation relating to veterans’ preference, as required
by 5 U.S.C. § 3330a and 5 C.F.R. § 1208.2(b). Id. at *9–
12. The VA appointed Dr. Midyett as a physician “with-
out regard to ‘civil-service requirements’” pursuant to 38
U.S.C. § 7401(1), and the AJ concluded that the Board has
no jurisdiction to consider violations of preference rights
under VEOA for such “non-selection action[s] for a physi-
cian position.” Id. at *9–12; see also id. at *9 (“According-
ly, because physician appointments may be made without
regard to ‘civil-service requirements,’ it is well settled
that the Board has no jurisdiction to consider an alleged
violation of veterans' preference rights under the VEOA
from a non-selection action for a physician position.”).
Dr. Midyett petitioned for review of the Initial Deci-
sion on April 9, 2013. Dr. Midyett asserted that he “mis-
filed his VEOA claim with the Office of Special Counsel
and was told to resubmit his claim to the DOL.” Final
Order, 121 M.S.P.R. at 78. Dr. Midyett thus resubmitted
a VEOA complaint, but appears to have submitted it to
the Board, and not the DOL, a few days before submitting
his petition for review. Id.
On April 29, 2014, the Board issued its Final Order,
dismissing Dr. Midyett’s VEOA claims. Id. The Board
thoroughly reviewed Dr. Midyett’s extensive filings, id. at
MIDYETT v. MSPB 5
78 n.5, and concluded that the AJ correctly dismissed Dr.
Midyett’s VEOA claim for lack of jurisdiction. The Board
noted that the only evidence tending to show that Dr.
Midyett filed a complaint with the DOL was his repre-
sentative’s declaration regarding Dr. Midyett’s filings
with DOL, OSC, and the Board. Id. at 78. Nevertheless,
“[n]one of these statements clarified whether the appel-
lant filed a VEOA complaint with DOL, whether DOL
sent the appellant written notification of the results of its
investigation of the complaint, or whether the appellant
notified the Secretary of Labor of his intention to appeal
to the Board.” Id. Dr. Midyett also failed to allege that
he resubmitted his complaint with the DOL, and not just
the Board. Id. Due to the lack of evidence tending to
show that the DOL received, processed, and issued results
regarding Dr. Midyett’s VEOA claims, the Board affirmed
the AJ’s dismissal for failure to exhaust administrative
remedies with the DOL. Id. The Board declined to reach
the issue of Dr. Midyett’s allegations of a violation of a
statute or regulation relating to veterans’ preference, and
vacated that portion of the Initial Decision. Id.
Dr. Midyett timely appealed to this Court, and we
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 3
ANALYSIS
We review a determination of the Board’s jurisdiction
de novo. Lazaro v. Dep’t of Veterans Affairs, 666 F.3d
1316, 1318 (Fed. Cir. 2012). “The Board’s jurisdiction is
limited to actions made appealable to it by law, rule, or
regulation.” Id. (citing 5 U.S.C. § 7701(a)). Dr. Midyett
3 Dr. Midyett filed an untimely brief and cover let-
ter in response to the government’s informal brief. We
have construed the letter as a motion to file a reply brief
out of time, granted the motion, and considered the ar-
guments made therein due to his pro se status.
6 MIDYETT v. MSPB
must prove by preponderant evidence that the Board has
jurisdiction. 5 C.F.R. § 1201.56(a)(2)(i) (2014).
In order to establish the Board’s jurisdiction over an
appeal based on a claim brought under the VEOA, the
petitioner must:
(1) show that he exhausted his remedies with the
Department of Labor and (2) make nonfrivolous
allegations that (i) he is preference eligible within
the meaning of the VEOA, (ii) the action(s) at is-
sue took place on or after the October 30, 1998 en-
actment date of the VEOA, and (iii) the agency
violated his rights under a statute or regulation
relating to veteran’s [sic] preference.
Lazaro, 666 F.3d at 1319 (citing 5 U.S.C. § 3330a). The
first of these requirements is at issue in this appeal:
whether Dr. Midyett exhausted his remedies with the
DOL.
Under the VEOA, a preference-eligible veteran may
file a complaint with the DOL alleging a violation of the
veteran’s rights under a statute or regulation involving
veterans’ preference. 5 U.S.C. § 3330a(a)(1)(A). The
complaint must be filed within sixty days of the alleged
violation. Id. § 3330a(a)(2)(A). The DOL must notify the
complainant in writing with the results of the investiga-
tion, even if the DOL does not resolve the complaint. Id.
§ 3330a(c)(2). The complainant must then appeal to the
Board within 15 days of receiving the written results from
the DOL. Id. § 3330a(d)(1)(B). If more than sixty days
have passed since the complainant filed the complaint
and the DOL has not provided written notice of the re-
sults, the petitioner may appeal to the Board, but only
after first providing “written notification to the [DOL] of
such complainant’s intention to bring such appeal.” Id.
§ 3330a(d)(2)(A). A copy of that notice must be included
with the notice of appeal submitted to the Board. Id.
§ 3330a(d)(2)(B).
MIDYETT v. MSPB 7
Dr. Midyett argues that he exhausted his administra-
tive remedies with the DOL because he timely filed a
VEOA claim with the DOL. Dr. Midyett asserts that he
filed a VEOA complaint with the DOL dated July 25,
2012, but his claim was “not properly handled” and “mis-
filed but not by me.” Dr. Midyett also submitted a copy of
the VEOA complaint, dated July 25, 2012, to the Board as
part of his petition for review of the Board’s initial deci-
sion on March 28, 2013. Dr. Midyett claims that this
submission is sufficient to demonstrate that he exhausted
his remedies with the DOL because the VEOA complaint
was refiled before the Board’s Initial Decision became
final. Dr. Midyett also argues that he has met the re-
quirements of § 3330a through the relation-back doctrine,
described in Scarborough v. Principi, 541 U.S. 401 (2004),
and through equitable tolling.
The government counters that Dr. Midyett failed to
present any evidence showing that he filed a complaint
with the DOL. The government also argues that Dr.
Midyett failed to present either written results of the
DOL investigation or a written notification to the DOL of
his intent to bring an appeal with the Board. The gov-
ernment contends that the relation-back doctrine is
inapplicable because it cannot cure a lack of the eviden-
tiary proof required by § 3330a.
We agree with the Board that it lacked jurisdiction
over Dr. Midyett’s appeal. Dr. Midyett’s evidence submit-
ted to prove the Board’s jurisdiction consists of only a copy
of a complaint Dr. Midyett asserts he filed with OSC on
July 25, 2012, and the declaration of his representative.
Dr. Midyett, however, failed to provide any proof that the
July 25, 2012, complaint was actually filed with the DOL.
And the statements in the declaration merely show that
Dr. Midyett potentially submitted VEOA, USERRA, and
IRA claims that were eventually analyzed by OSC.
8 MIDYETT v. MSPB
Even if we construe this evidence as sufficient for Dr.
Midyett to meet his burden to show that he filed a com-
plaint with DOL, Dr. Midyett still failed to present any
evidence that the DOL provided written notification of the
results of its investigation or that Dr. Midyett provided
the required written notice to the DOL of his intent to
appeal to the Board. The AJ clearly informed Dr. Mid-
yett, in the jurisdictional order, that such evidence would
be necessary for Dr. Midyett to demonstrate the Board’s
jurisdiction. “This written notification is important
because it lets the Secretary of Labor know she should
stop investigating the complaint.” Burroughs v. Merit
Sys. Prot. Bd., 426 F. App’x 897, 899 (Fed. Cir. 2011). Dr.
Midyett has failed to produce any evidence tending to
show that he submitted a statement to the DOL of an
intent to appeal to the Board or that the DOL provided
written notice of the results of its investigation. Absent
such evidence, Dr. Midyett did not exhaust his adminis-
trative remedies with the DOL. 4 And “[a]bsent exhaus-
tion of the administrative remedy . . . the Board simply
has no jurisdiction to hear [the] appeal.” Hill v. Merit
Sys. Prot. Bd., 484 F. App’x 484, 487 (Fed. Cir. 2012). The
Board therefore correctly determined that Dr. Midyett did
not meet his burden under § 3330a.
We also agree with the government that Dr. Midyett’s
arguments regarding equitable tolling or the relation-
back doctrine are not applicable to the current appeal.
Either equitable tolling or the relation-back doctrine could
4 Dr. Midyett has also failed to present evidence of
a constructive exhaustion of remedies due to affirmative
DOL actions. See, e.g., Thompson v. Dep’t of Army, 112
M.S.P.R. 153 (2009) (finding that petitioner had exhaust-
ed remedies with DOL when DOL specifically told the
petitioner to file his complaint with the Board because the
DOL did not handle such complaints).
MIDYETT v. MSPB 9
potentially be relevant, for example, if Dr. Midyett failed
to timely file his complaint with the DOL. See, e.g.,
Kirkendall v. Dep’t of the Army, 479 F.3d 830 (Fed. Cir.
2007) (en banc). The Board, however, did not dismiss Dr.
Midyett’s appeal due to an untimely filing, but because he
failed to produce the evidence required by statute for the
Board to have jurisdiction over his VEOA appeal. Thus,
neither doctrine is presently relevant. Dr. Midyett’s other
arguments involve the merits of his VEOA claim and are
therefore not before us on appeal.
CONCLUSION
Because the Board correctly determined that Dr. Mid-
yett failed to meet his burden to demonstrate that he
exhausted administrative remedies with the DOL, we
affirm the Board’s dismissal of his appeal for lack of
jurisdiction.
AFFIRMED