Filed: Aug. 26, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEGERALD R. WILSON, DOCKET NUMBERS Appellant, AT-3443-14-0269-I-1 DC-3330-14-0354-I-1 v. DEPARTMENT OF STATE, Agency. DATE: August 26, 2014 THIS FINAL ORDER IS NONPRECEDENTIAL 1 DeGerald R. Wilson, San Antonio, Texas, pro se. Elizabeth R. Amory, Esquire, Charleston, South Carolina, for the agency. Joyce, Anne, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Memb
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEGERALD R. WILSON, DOCKET NUMBERS Appellant, AT-3443-14-0269-I-1 DC-3330-14-0354-I-1 v. DEPARTMENT OF STATE, Agency. DATE: August 26, 2014 THIS FINAL ORDER IS NONPRECEDENTIAL 1 DeGerald R. Wilson, San Antonio, Texas, pro se. Elizabeth R. Amory, Esquire, Charleston, South Carolina, for the agency. Joyce, Anne, Esquire, Washington, D.C., for the agency. BEFORE Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Membe..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEGERALD R. WILSON, DOCKET NUMBERS
Appellant, AT-3443-14-0269-I-1
DC-3330-14-0354-I-1
v.
DEPARTMENT OF STATE,
Agency. DATE: August 26, 2014
THIS FINAL ORDER IS NONPRECEDENTIAL 1
DeGerald R. Wilson, San Antonio, Texas, pro se.
Elizabeth R. Amory, Esquire, Charleston, South Carolina, for the agency.
Joyce, Anne, 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 petitions for review of two initial decisions, which
dismissed his appeals for lack of jurisdiction. Generally, we grant petitions such
as these ones only when: the initial decisions contain erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; the initial decisions are based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
cases; the judge’s rulings during either the course of the appeals or the initial
decisions were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the cases; 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 these appeals, 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 petitions for review. Therefore, we DENY the
petitions for review and AFFIRM the initial decisions, which are now the Board’s
final decisions. 5 C.F.R. § 1201.113(b).
¶2 As a preliminary matter, we note that joinder of two or more appeals filed
by the same appellant is appropriate where doing so would expedite processing of
the cases and not adversely affect the interests of the parties. Tarr v. Department
of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R. § 1201.36(a)(2). We
find that the appellant’s two appeals against the Department of State meet the
regulatory criteria, and therefore we join them. 2
¶3 On September 19, 2013, the agency posted a vacancy announcement for the
position of Staff Assistant. Wilson v. Department of State, MSPB Docket No.
AT-3443-14-0269-I-1 (AT Appeal), Initial Appeal File (IAF), Tab 5 at 15. The
appellant applied for this position, id. at 80, but was not selected,
id. at 7. On
November 19, 2013, the agency posted a vacancy announcement for the position
of Customer Service Representative. Wilson v. Department of State, MSPB
2
The appellant has one other similar appeal. Wilson v. Department of Education,
MSPB Docket No. DC-3330-14-0298-I-1. Because the respondent in that appeal is a
different federal agency, we are adjudicating it separately from his two appeals against
the Department of State.
3
Docket No. DC-3330-14-0354-I-1 (DC Appeal), IAF, Tab 7 at 17. The appellant
also applied for this position, id. at 24, but was, again, not selected,
id. at 10, 75.
¶4 The appellant appealed his nonselection for these two positions to the
Board. AT Appeal, IAF, Tab 1; DC Appeal, IAF, Tab 1. He alleged that his
nonselection was the result of prohibited discrimination and that the agency
violated the law as it relates to veterans’ preference. AT Appeal, IAF, Tab 1 at 5;
DC Appeal, IAF, Tab 1 at 7.
¶5 The administrative judges issued jurisdictional orders for each of the
appellant’s nonselection appeals. AT Appeal, IAF, Tab 6; DC Appeal, IAF, Tab
3. These orders explained that the appellant had the burden of proving the
Board’s jurisdiction over his appeals and included instructions for establishing
jurisdiction over a nonselection under the Veterans Employment Opportunities
Act (VEOA). AT Appeal, IAF, Tab 6 at 2-6; DC Appeal, IAF, Tab 3 at 2-6. The
appellant responded to the jurisdictional orders, AT Appeal, IAF, Tab 8; DC
Appeal, IAF, Tab 6, and the agency submitted motions to dismiss, AT Appeal,
IAF, Tab 12 at 5-8; DC Appeal, IAF, Tab 7 at 5-8.
¶6 Without hearings, the administrative judges dismissed both appeals for lack
of jurisdiction. AT Appeal, IAF, Tab 13, Initial Decision (ID); DC Appeal, IAF,
Tab 8, ID. The appellant has filed petitions for review. AT Appeal, Petition for
Review (PFR) File, Tab 1; DC Appeal, PFR File, Tab 1. The agency has filed
responses, AT Appeal, PFR File, Tab 3; DC Appeal, PFR File, Tab 2, and the
appellant has replied, AT Appeal, PFR File, Tab 4; DC Appeal, PFR File, Tab 4.
¶7 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
4
Board. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir.
1998). However, an exception exists under VEOA. 3
¶8 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 the
Department of Labor (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 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.
¶9 Despite the jurisdictional orders instructing him to prove that he had
exhausted his remedies with DOL, AT Appeal, IAF, Tab 6 at 5; DC Appeal, IAF,
Tab 3 at 5, the appellant presented no such evidence and his responses were silent
3
We note that in his initial appeals, the appellant checked the box to indicate that he
was also claiming that the agency’s decision “was the result of prohibited
discrimination (race, color, religion, sex, national origin, disability, age).” AT Appeal,
IAF, Tab 1 at 5; DC Appeal, IAF, Tab 1 at 13. However, discrimination claims do not
provide an independent basis for Board jurisdiction. See Wren v. Department of the
Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871–73 (D.C. Cir. 1982). In
addition, the Board lacks the authority to adjudicate claims of discrimination in a
nonselection appeal under VEOA. Ruffin v. Department of the Treasury, 89 M.S.P.R.
396, ¶ 12 (2001).
5
on the issue other than a vague suggestion in one of his appeals that he submitted
some sort of complaint to DOL after his initial appeals to the Board, see AT
Appeal, IAF, Tab 8; DC Appeal, IAF, Tab 6 at 2. Therefore, because the
appellant failed to provide any evidence that he filed a DOL complaint, the
administrative judge rightly 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).
¶10 In his petitions for review, the appellant did not present any argument or
evidence that the administrative judges erred in dismissing his appeals. Instead,
the appellant vaguely asserts that DOL has been contacted. 4 AT Appeal, PFR
File, Tab 1 at 2; DC Appeal, PFR File, Tab 1 at 2. His subsequent replies suggest
he has complaints pending with DOL. AT Appeal, PFR File, Tab 4 at 2; DC
Appeal, PFR File, Tab 4 at 2.
¶11 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 vague
suggestions that complaints have been initiated with DOL, without any supportive
evidence, do not establish that his appeals are now ripe. Even if he has initiated
complaints with DOL, as he seems to suggest, the initiation of a complaint does
not meet his jurisdictional burden of proving that he exhausted his administrative
remedies. See Burroughs v. Department of Defense, 114 M.S.P.R. 647, ¶¶ 8-9
(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).
4
The appellant’s petitions both state, “The Department of Labor Complaint Information
Form, submitted, by fax, From Texas Workforce Commission, San Antonio, Texas.”
AT Appeal, PFR File, Tab 1 at 2; DC Appeal, PFR File, Tab 1 at 2.
6
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
Merit Systems Protection Board appellants before the court. The Merit Systems
7
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.
