Opinion

Jimmie Miller v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 18, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.7%

“[N]ot only must the MSPB determine whether the experience record was complete, but it must also assess whether that record was adequately considered by the agency.”

How later courts described this case

“[N]ot only must the MSPB determine whether the experience record was complete, but it must also assess whether that record was adequately considered by the agency.”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JIMMIE L. MILLER, DOCKET NUMBER

Appellant, AT-3330-15-0721-I-1

DEPARTMENT OF VETERANS DATE: July 18, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jimmie L. Miller, Memphis, Tennessee, pro se.

Bradley Flippin, Esquire, Nashville, Tennessee, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action under the Veterans Employment

Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this

one only in the following circumstances: the initial decisio n contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

findings of material fact; the initial 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 administrative judge’s rulings during either the cou rse 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. 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, 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).

BACKGROUND

¶2 The appellant is a preference-eligible veteran who, since October 7, 2012,

has held a GS-0640-03 Health Aid position with the agency’s Veterans Affairs

(VA) Medical Center in Memphis, Tennessee. Initial Appeal File (IAF), Tab 5

at 6-7, Tab 6, Subtab 2h. 2 The appellant applied for the GS-0621-05 Certified

Nursing Assistant (CNA) position under Job Announcement Number RZ-14-JF-

1208427-BU, which the agency held open from September 18 through October 1,

2014. IAF, Tab 6, Subtabs 2u, 2x. The CNA position was advertised under the

full performance level as a GS-05, which required either (1) “[o]ne year of

progressively responsible assignments and experience equivalent to the GS -4

level” and demonstrated knowledge, skills, and abilities (KSAs) or (2) possession

of a bachelor’s degree and demonstrated KSAs. Id., Subtab 2u at 4. The

The position description for the GS-0640-03 Health Aid position alternatively refers

to the position as “Escort” and states that an incumbent’s “duties and responsibilities

are as an escort of patients from one point to another within the facility.” IAF, Tab 18

at 2-6. Here, the titles “Health Aid” and “Escort” have been used interchangeably by

the parties and in the record. For the purpose of consistency, we have used the position

title of “Health Aid” in this decision.

VA Handbook 5005/71 states that, for experience to be creditable for the grade

requirements of the CNA position, “the experience must have required the use of

[KSAs] associated with the current practice” and “CNA experience must be

documented on the application or [résumé] and verified in an employment

reference, or through other independent means.” Id., Subtab 2v at 2. The

VA Handbook further states that “[p]art-time experience as a CNA is creditable

according to its relationship to the full-time workweek.” Id. The demonstrated

KSAs for the GS-05 level of the CNA position include the ability “to assist in the

full range of nursing care to patients/residents with physical and/or behavioral

problems,” “to communicate orally with patients/residents, families,

interdisciplinary team and other personnel,” and “to recognize and react to

emergent patient/resident care situations and intervene while waiting for

assistance.” Id., Subtab 2u at 4, Subtab 2v at 4.

¶3 Although the appellant did not indicate on his résumé that he possessed a

bachelor’s degree, he described having relevant CNA experience from

September 2012 to December 2013 as a full-time Escort/Health Aid/Sitter/CNA. 3

Id., Subtab 2w. He also represented that he possessed relevant training

certifications and skills, including a CNA certification by a state, and he

addressed the required KSAs. Id. at 3-4. On October 11, 2014, the agency

determined that the appellant was entitled to a 10-point veterans’ preference due

to his compensable disability rating of 30% or more. Id., Subtab 2x.

¶4 After learning of his nonselection for the CNA position on May 14, 2015,

the appellant filed a veterans’ preference complaint with the Department of Labor

(DOL). Id., Subtab 2f. He claimed before DOL that he was well-qualified for the

CNA position and that the agency had interviewed him. Id., Subtabs 2d, 2f. In

Although the appellant’s work experience is not clearly organized in his résumé, we

have read it in the light most favorable to him. For example, he also indicated that he

worked as a full-time Housekeeper-Aid from September 6, 2013, to a date uncertain.

IAF, Tab 6, Subtab 2w at 2.

the agency’s correspondence with DOL regarding the appellant’s complaint, the

agency explained that it initially found him qualified for the CNA position,

included him on the certificate of eligibles, and referred him to the selecting

official for review of his application and a possible interview . Id., Subtab 2c.

The agency further explained that it later determined that he was not qualified for

the CNA position at the GS-05 level because he did not possess the required “one

year of experience caring for patients, communicating with patients, residents and

family members[,] and reacting to emergent patient care situations.” Id.,

Subtab 2e. The agency described how it verified that the appellant held the

positions of Health Aid, Laundry Worker, and Housekeeping Aid, but could not

find any personnel records to confirm that he held a CNA position, as he claimed

in his application. 4 Id. Finally, the agency contended that it removed the

appellant from the certificate of eligibles to correct its mistake in finding him

qualified. Id., Subtab 2c. The DOL ultimately determined that the evidence did

not support the appellant’s allegation that the agency violated his veterans’

preference rights. Id., Subtab 2a.

¶5 The appellant thereafter filed a Board appeal and requested a hearing. IAF,

Tab 1 at 1-8. Specifically, he claimed that the agency violated his veterans’

preference rights under 5 U.S.C. § 3311(2) by failing to consider his material

experience as a GS-03 Health Aid when it evaluated his application. IAF, Tab 1

at 8, Tab 13. The appellant testified during the hearing that the duties of his

GS-03 Health Aid position are the same as or similar to those of the CNA

position. IAF, Tab 17, Hearing Compact Disc (HCD) (testimony of the

appellant). To support his argument, the appellant submitted documentation

concerning the redescription of the GS-0640-03 Health Aid position description

The record reflects that, from August 1994 to October 2012, the appellant held the

part-time positions of Laundry Worker, Housekeeping Aid, and GS -01 Health Aid.

IAF, Tab 6, Subtabs 2h-2n. It further reflects that, effective October 7, 2012, he was

reassigned to a full-time, GS-03 Health Aid position. Id., Subtab 2h.

in early 2014 and a copy of the U.S Court of Appeals for the Federal Circuit’s

decision in Kirkendall v. Department of the Army, 573 F.3d 1318 (Fed. Cir.

2009). 5 IAF, Tab 18. The agency’s Human Resources Specialist testified that the

agency deemed the appellant unqualified for the GS-05 CNA position because he

lacked the required 1 year of experience caring for patients, communicating with

patients, residents, and family members, and reacting to emergent patient care

situations. HCD (testimony of Human Resources Specialist). She further

testified that the appellant’s experience in the GS-03 Health Aid position was not

equivalent to the GS-04 level of the CNA position. Id.

¶6 The administrative judge issued an initial decision denying the appellant’s

request for corrective action under VEOA. IAF, Tab 19, Initial Decision (ID)

at 2, 6. She found that the Board has jurisdiction over the VEOA appeal. ID at 1.

However, she concluded that the appellant failed to prove that the agency violated

his veterans’ preference rights under 5 U.S.C. § 3311(2) or 5 C.F.R. § 302.302(d)

by not considering or omitting any of his prior experience when it reviewed his

application. ID at 6.

¶7 The appellant has filed a petition for review reiterating his argument that

the agency failed to credit his experience as a GS-03 Health Aid, and he cites

Kirkendall, 573 F.3d 1318. Petition for Review (PFR) File, Tab 3 at 3. He

further alleges that some of the selectees for the CNA position are not veterans

and requests the Board to obtain the names of the selectees and proof of their

veteran status from the agency. Id. at 2-3. He submits the agency’s letter to DOL

from below as proof that the agency has made mistakes in the selection process.

During the hearing, the appellant quoted from the remarks section regarding grade

determination in the Position Evaluation Statement, which states, “Because there are no

specific factor levels for [the GS 640 Health Aid and Technician Series], the duties of

this position were compared with the [Office of Personnel Management Position

Classification Standard] for Nursing Assistant Series (TS-55) dated August 1983. The

duties outlined in the position were determined to be similar to the level of

responsibilities outlined in the standard with factor level determinations above .” HCD

(testimony of the appellant); IAF, Tab 18 at 7.

Id. at 5. The agency has filed a response opposing the appellant’s petition for

review. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board has jurisdiction over the appellant’s VEOA appeal.

¶8 A nonselection generally is not an action directly appealab le to the Board,

but it may be appealable under VEOA. Phillips v. Department of the Navy,

110 M.S.P.R. 184, ¶ 5 (2008), overruled on other grounds by Oram v.

Department of the Navy, 2022 MSPB 30, ¶ 18. To establish the Board’s

jurisdiction over a VEOA appeal based on an alleged violation of veterans’

preference rights, the appellant must show that he exhausted his remedy with

DOL and make nonfrivolous allegations that he is a preference eligible within the

meaning of VEOA, the action at issue took place on or after the October 30, 1998

enactment of VEOA, and the agency violated his rights under a statute or

regulation relating to veterans’ preference. Lis v. U.S. Postal Service,

113 M.S.P.R. 415, ¶ 8 (2010); see 5 U.S.C. § 3330a. Here, the parties do not

dispute the administrative judge’s finding that the Board has jurisdiction over this

VEOA appeal, and we find no reason to disturb it. 6 ID at 1.

The appellant has failed to prove that the agency violated his ve terans’ preference

rights under VEOA.

¶9 To prevail on the merits of a VEOA appeal involving a veterans’ preference

claim, the appellant must prove the jurisdictional elements by preponderant

evidence. See Isabella v. Department of State, 106 M.S.P.R. 333, ¶¶ 21-22

(2007) (analyzing the appellant’s burden of proving the merits of his VEOA

The CNA position for which the appellant applied is an excepted-service position in

the Veterans Health Administration (VHA) and is covered by Title 38 of the U.S. Code.

IAF, Tab 6, Subtab 2u at 1-2, 5. The Board has held that the veterans’ preference

requirements in Title 5 apply to appointments made for certain medical positions in the

VHA that are described in 38 U.S.C. § 7401(3). Graves v. Department of Veterans

Affairs, 114 M.S.P.R. 209, ¶¶ 6-9 (2010). Because “nurse assistants” are listed in

38 U.S.C. § 7401(3), we find that an appointment to the CNA position is subject to

veterans’ preference requirements.

appeal involving a veterans’ preference claim), aff’d on recons, 109 M.S.P.R. 453

(2008). Here, it is undisputed that the appellant exhausted his remedy with DOL,

he is a preference-eligible veteran, and the nonselection took place after

October 30, 1998. IAF, Tab 5 at 6-7, Tab 6, Subtabs 2a, 2u. Therefore, the

relevant inquiry is whether the appellant has shown that the agency’s action

violated one or more of his statutory or regulatory veterans’ preference rights .

See Isabella, 106 M.S.P.R. 333, ¶ 22. Although the appellant retains the ultimate

burden of proof, the agency has the burden of producing evidence regarding the

extent to which it considered the appellant’s application be cause it is the only

party with access to such evidence. Phillips, 110 M.S.P.R. 184, ¶ 12 n.4.

¶10 As described above, the appellant argued that the agency violated his

veterans’ preference rights by failing to credit all of his experience relevant to the

CNA position, particularly his experience as a GS-03 Health Aid. IAF, Tab 1

at 8, Tab 13; HCD (testimony of the appellant). Under 5 U.S.C. § 3311(2), when

“experience is an element of qualification, a preference eligible is entitled to

credit . . . for all experience material to the position.” Under 5 C.F.R.

§ 302.302(d), “[w]hen experience is a factor in determining eligibility, an agency

shall credit a preference eligible . . . with all valuable experience.” Thus,

5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) are a statute and a regulation,

respectively, concerning veterans’ preference rights. Miller v. Federal Deposit

Insurance Corporation, 121 M.S.P.R. 88, ¶ 7 (2014), aff’d, 818 F.3d 1361 (Fed.

Cir. 2016).

¶11 Here, because the appellant did not satisfy the educational requirement for

the GS-05 level of the CNA position, he had to show 1 year of “progressively

responsible assignments and experience equivalent to the GS-4 level” and

demonstrate the professional KSAs to be qualified for the position. IAF, Tab 6,

Subtab 2u at 4. It appears that the agency did not make a determination that the

appellant was not qualified until after he filed a complaint with DOL. The record

is undeveloped on why exactly he was not selected from the certificate forwarded

to the selecting official or how the agency accounted for his veterans’ preference,

if at all, in referring his application to the selecting official. However, VEOA

does not enable veterans to be considered for positions for which they are not

qualified. Ramsey v. Office of Personnel Management, 87 M.S.P.R. 98, ¶ 9

(2000); see Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed.

Cir. 2012) (citing Ramsey for the same proposition). 7

¶12 For the following reasons, we agree with the administrative judge’s finding

that the appellant did not meet his burden of proving that the agency failed to

credit any of his relevant experience in violation of 5 U.S.C. § 3311(2) or

5 C.F.R. § 302.302(d). ID at 6. The agency explained in its letter to DOL that it

verified that the appellant held the positions of Health Aid, Laundry Worker, and

Housekeeping Aid but that it determined that he did not meet the experience

requirement. IAF, Tab 6, Subtab 2e. In addition, the agency’s Human Resources

Specialist testified that the appellant’s experience in the GS-03 Health Aid

position was not equivalent to the GS-04 level of the CNA position. HCD

(testimony of Human Resources Specialist). Although the agency acknowledged

that it initially found the appellant qualified for the CNA position, we find that

the agency’s correspondence with DOL and the testimony of the Human

Resources Specialist adequately explain why it ultimately determined that he was

not qualified. IAF, Tab 6, Subtabs 2c, 2e; HCD (testimony of Human Resources

Specialist); cf. Russell v. Department of Health and Human Services,

120 M.S.P.R. 42, ¶¶ 5, 11, 13-14 (2013) (remanding a compliance proceeding for

the agency to explain its apparent change in its assessment of a

preference-eligible applicant’s qualifications when it initially found him qualified

In Lazaro, the court remanded the appellant’s VEOA appeal for the Board to

determine whether his “other valuable experience was considered in accorda nce with

5 C.F.R. § 302.302(d)” when the agency determined that he was unqualified for a

position. 666 F.3d at 1319, 1321. The instant appeal is distinguishable from Lazaro

because, as discussed below, we agree with the administrative judge’s finding that the

appellant failed to prove that the agency violated 5 C.F.R. § 302.302(d). ID at 6.

for the applied-for position, but it later found him not qualified after the Board

ordered the agency to reconstruct the selection process ).

¶13 We further find that the appellant’s assertion that he was qualified because

his duties as a GS-03 Health Aid were similar to the duties of a CNA and his

reference to the agency’s multiple mistakes in the selection process fail to rebut

the agency’s evidence that it evaluated all of his valuable experience when it

determined that he was not qualified. IAF, Tab 1 at 8, Tab 13; HCD (testimony

of the appellant); see Miller, 818 F.3d at 1367 (“Although the MSPB does not

reevaluate the weight the agency accorded to a veteran’s experience, the MSPB’s

jurisdiction extends to determining whether the agency actually evalua ted

‘experience material to the position,’ as required by 5 U.S.C. § 3311(2) and

5 C.F.R. § 302.302(d).”). Moreover, we find that the instant appeal is

distinguishable from Kirkendall, 573 F.3d at 1324-25, in which the court found

that the agency violated a preference-eligible applicant’s right to credit for all

material experience under 5 U.S.C. § 3311(2) when it “simply ignored” his

experience listed in military documents because it was not repeated on a two-page

application form. In contrast, the appellant here did not meet his burden of

showing that the agency ignored or failed to credit any of his material experience .

¶14 In his petition for review, the appellant reiterates his arguments regarding

the agency’s mistakes in the selection process and his Health-Aid experience, and

he cites Kirkendall, 573 F.3d 1318. PFR File, Tab 3. As discussed above, these

arguments, without more, fail to prove that the agency violated his veterans’

preference rights under 5 U.S.C. § 3311(2) or 5 C.F.R. § 302.302(d). In addition,

the appellant claims that some of the selectees under the vacancy announcement

are not veterans, and he requests the Board to order the agenc y to provide

documentation on the selectees. PFR File, Tab 3 at 2-3. We find that his claim

does not provide a reason to disturb the initial decision because it is not material

to the relevant issue of whether the agency properly credited all of his valuable

experience, and we decline his request. See Ramsey, 87 M.S.P.R. 98, ¶ 9.

¶15 Finally, we note that the administrative judge cited to Miller, 121 M.S.P.R.

88, ¶ 12, for the proposition that “[t]he Board’s role is limited to determining

whether the hiring agency improperly omitted, overlooked, or excluded a portion

of the appellant’s experiences or work history in assessing his qualifications for

the vacancy.” ID at 6. Although the court affirmed the Board’s decision in

Miller, the court found that the Board erred in so limiting its review. Miller,

818 F.3d at 1366 (“[N]ot only must the MSPB determine whether the experience

record was complete, but it must also assess whether that record was adequately

considered by the agency.”). However, we find that the appellant’s substantive

rights have not been harmed by citing to that erroneous proposition because the

administrative judge correctly determined in the instant appeal whether the

experience record was complete and whether the agency considered his

experience material to the CNA position. ID at 5-6; see Panter v. Department of

the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that

is not prejudicial to a party’s substantive rights provides no basis for reversal of

an initial decision).

¶16 Accordingly, we affirm the administrative judge’s denial of the appellant’s

request for corrective action under VEOA.

NOTICE OF APPEAL RIGHTS 8

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of revi ew

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided b y any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of

competent jurisdiction. 9 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the