The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL GIBBS, DOCKET NUMBER
Appellant, DC-3330-12-0721-I-2
v.
DEPARTMENT OF THE INTERIOR, DATE: September 4, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Michael Gibbs, Haymarket, Virginia, pro se.
Kerry E. Creighton, 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 Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant, a Department of Homeland Security employee, and a
“service-wounded/disabled ‘decorated’ US Veteran,” filed a Board appeal,
alleging that he had applied for more than ten vacancy announcements with the
agency but did not have an interview despite his qualifications. Gibbs v.
Department of the Interior, MSPB Docket No. DC-3330-12-0721-I-1 (I-1), Initial
Appeal File (IAF), Tab 1 at 6. The appellant further alleged that he was
“blocked” from these positions because he represented his wife (an agency
employee) in various matters against the agency, and he asserted several
affirmative defenses. Id. at 5-8. The appeal was dismissed without prejudice and
later refiled. I-1, IAF, Tab 14; Gibbs v. Department of the Interior, MSPB
Docket No. DC-3330-12-0721-I-2 (I-2), IAF, Tab 1. The appellant waived his
right to a hearing. See I-2, IAF, Tab 12.
¶3 The administrative judge dismissed the appeal for lack of jurisdiction. I-2,
IAF, Tab 23, Initial Decision (ID). In pertinent part, the administrative judge
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found that the appellant did not prove that he exhausted his administrative
remedies with the Department of Labor (DOL). ID at 4-6. The appellant filed a
petition for review, the agency filed a response, and the appellant filed a reply.
Petition for Review (PFR) File, Tabs 2, 4-5. On petition for review, the appellant
states that he “understands” the administrative judge’s decision regarding the
exhaustion requirement. PFR File, Tab 2 at 5. He alleges, however, that the
administrative judge did not address the Senior Executive Service (SES)
positions, such as Chief of National Business Center, Director of Budget, and
other positions that “are not eligible for [Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
(USERRA)] or DOL consideration.” Id. In his reply brief, he appears to assert
that the nonselections were due to his military status and/or his status as a
whistleblower. See PFR File, Tab 5 at 4-5.
¶4 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). Generally, a
nonselection is not an action directly appealable to the Board, but the Board may
have jurisdiction over a nonselection under either USERRA, VEOA, or as a claim
of reprisal for whistleblowing activity in an individual right of action appeal.
Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 7 (2006); Wooten v.
Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 8 n.* (2004).
¶5 In order to satisfy his jurisdictional burden in a VEOA appeal, the appellant
must show that he exhausted his remedy with DOL. 5 U.S.C. § 3330a; see Lazaro
v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Hillman
v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 9 (2003). We discern no error
with the administrative judge’s decision to dismiss the appeal for lack of
jurisdiction based on the appellant’s failure to show that he exhausted his
administrative remedy with DOL. The appellant does not appear to challenge the
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administrative judge’s analysis of the exhaustion issue, and we affirm the initial
decision in this regard.
¶6 Regarding the appellant’s contention that the administrative judge failed to
address certain SES positions for which he had applied, and his concomitant
assertion that the agency’s decision not to select him for various positions was
due to his military status and/or his whistleblower status, we forward these claims
to the Washington Regional Office for docketing as a new appeal. We take no
position as to whether the Board has jurisdiction over these claims.
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.
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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
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.