Opinion

Jeffery Millsap v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Feb 21, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.3%

finding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue

How later courts described this case

finding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue
finding that the Board is without authority to decide the merits of an appeal over which it lacks jurisdiction

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFFERY WADE MILLSAP, DOCKET NUMBER

Appellant, CH-3443-18-0297-I-1

DEPARTMENT OF AGRICULTURE, DATE: February 21, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeffery Wade Millsap , Wichita Falls, Texas, pro se.

Martin A. Gold , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his appeal of his nonselection for lack of jurisdiction. On petition for

review, the appellant questions why the agency informed him about certain

aspects of the position, whether his veterans’ preference points were properly

applied, and whether his nonselection was based on his age. Petition for Review

(PFR) File, Tab 1 at 3-4.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous 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 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. 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. We AFFIRM the administrative

judge’s dismissal of the appeal for lack of jurisdiction and VACATE the part of

the initial decision addressing the merits of the appellant’s nonselection. See

Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)

(finding that the Board is without authority to decide the merits of an appeal over

which it lacks jurisdiction).

We specifically address the appellant’s new age discrimination and denial

of veterans’ preference claims that he raises on review. PFR File, Tab 1 at 4. As

to the former, we find that it does not provide a basis for review. The Board

lacks jurisdiction over age discrimination claims in the absence of an otherwise

appealable action. See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980)

(finding that prohibited personnel practices under 5 U.S.C. § 2302(b) are not an

independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir.

1982).

As to the appellant’s denial of veterans’ preference allegation, he has raised

an inchoate Veterans Employment Opportunity Act of 1998 (VEOA) claim. PFR

File, Tab 1 at 4; see Weed v. Social Security Administration, 112 M.S.P.R. 323,

¶ 12 (2009) (explaining that allegations of a VEOA violation should be liberally

construed); Haasz v. Department of Veterans Affairs, 108 M.S.P.R. 349, ¶ 7

(2008) (finding that the appellant’s general allegation that his veterans’

preference rights were violated was sufficient to meet the nonfrivolous allegation

standard required for establishing jurisdiction over a VEOA claim). We decline

to adjudicate his VEOA claim on review because the appellant raises it for the

first time in his petition for review and he has not received explicit notice as to

his burden of proving that claim. 2 See Burgess v. Merit Systems Protection

Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must

receive explicit information on what is required to establish an appealable

jurisdictional issue). Accordingly, we forward the appellant’s VEOA claim for

docketing as a separate VEOA appeal. Upon docketing, the administrative judge

should notify the appellant of his burden of proving his VEOA claim and

adjudicate the appeal as appropriate.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

To establish Board jurisdiction over an appeal brought under VEOA, an appellant

must: (1) show that he exhausted his remedy with the Department of Labor and

(2) make nonfrivolous allegations that (a) he is a preference eligible within the meaning

of VEOA, (b) the action at issue took place on or after the October 30, 1998 enactment

date of VEOA, and (c) the agency violated his rights under a statute or regulation

relating to veterans’ preference. 5 U.S.C. § 3330a; Haasz, 108 M.S.P.R. 349, ¶ 6.

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.

the rights described below do not represent a 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 review

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 by 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 any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

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.

petition for 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