Seda v. Merit Systems Protection Board , 638 F. App'x 1006 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANTHONY WAYNE SEDA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3221
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0330-14-0719-I-1.
______________________
Decided: February 3, 2016
______________________
ANTHONY WAYNE SEDA, Aberdeen, MD, pro se.
SARA B. REARDEN, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before LOURIE, DYK, and HUGHES, Circuit Judges.
2 SEDA v. MSPB
PER CURIAM.
Anthony Wayne Seda (“Seda”) appeals from the deci-
sion of the Merit Systems Protection Board (the “Board”)
dismissing his appeal for lack of jurisdiction. See Seda v.
Soc. Sec. Admin., No. PH-0330-14-0719-I-1 (M.S.P.B. Aug.
25, 2015) (“Final Order”). Because the Board did not err
in dismissing the appeal, we affirm.
BACKGROUND
Seda was employed by the Social Security Admin-
istration (“SSA”) on a probationary basis from February
27, 2005, to January 25, 2006. Resp’t’s App. 9. Seda is a
preference-eligible veteran. Final Order at 2 ¶2.
In late 2005, Seda was diagnosed with and treated for
a number of medical problems, including cancer. Resp’t’s
App. 15–16. He requested medical leave and a transfer to
a different office. Id. In January 2006, however, SSA
terminated his employment. Id. at 35. The coding on the
Notice of Personnel Action indicated that he had been
terminated during his probationary period because of
“unacceptable or unsatisfactory performance or other
factors unrelated to misconduct or delinquency.” See id.;
U.S. Office of Personnel Mgmt., The Guide to Processing
Personnel Actions 31-21 tbl.31-B r.32.
In October 2006, Seda appealed his termination to the
Board. Resp’t’s App. 121. In January 2007, the Adminis-
trative Judge (“AJ”) issued an initial decision, finding
that because Seda had only completed 11 months of
continuous employment, he was within his probationary
period and had no Board appeal rights, and therefore
dismissed the appeal for lack of jurisdiction. Id. at 121–
125. Seda’s petition for review by the full Board was
denied in May 2007, and the initial decision became final.
Id. at 118–120.
Years later, on June 2, 2014, Seda filed an appeal to
the Board asserting that his termination violated his
SEDA v. MSPB 3
rights under the Veterans Employment Opportunities Act
of 1998 (“VEOA”), as well as other statutory and constitu-
tional rights. Final Order at 2–3 ¶2; Resp’t’s App. 110–
115. The AJ issued an acknowledgment order, informing
Seda of the criteria for establishing the Board’s jurisdic-
tion over his appeal according to 5 U.S.C. § 3330a, and
ordering him to provide a statement indicating when he
first filed a complaint with the U.S. Department of Labor
(“DOL”). Final Order at 3 ¶3; Resp’t’s App. 106–109.
The government responded by filing a motion to dis-
miss, asserting that Seda failed to exhaust his adminis-
trative remedies by first filing a complaint with the DOL.
Resp’t’s App. 88–97. The government also argued that
even if Seda had timely filed a complaint with the DOL,
his removal during his probationary period would have
been sustained. Id. Seda filed responses to the acknowl-
edgment order, but addressed only the merits of his
removal. Id. at 98–105; id. at 61–82.
On September 29, 2014, the AJ issued an initial deci-
sion dismissing the appeal for lack of jurisdiction.
Resp’t’s App. 8–11. The AJ noted that Seda failed to file
any submissions responsive to the acknowledgment order,
i.e., regarding the jurisdictional issue. Although Seda
submitted the February 17, 2006 notice regarding his
unemployment insurance benefits, the AJ rejected the
letter as neither a complaint filed with the DOL nor a
response from the DOL regarding his VEOA claims. The
AJ found that it was “abundantly clear” that Seda did not
file a complaint with the DOL within the required 60 days
of his termination and thus never exhausted his adminis-
trative remedies. Id. at 11. The AJ also noted that Seda
offered no valid reason to toll the deadline for seeking
relief from the DOL. Id. The AJ concluded that Seda had
not established Board jurisdiction over his VEOA appeal
and accordingly dismissed the appeal for lack of jurisdic-
tion. Id.
4 SEDA v. MSPB
Seda filed a petition for review by the full Board on
June 1, 2015. The Board sent him a notice stating that
his petition was untimely as filed more than 35 days after
the September 29, 2014 initial decision. Seda responded
that he had not received notice of the decision until he
contacted the Board’s regional office in May 2015. The
government opposed Seda’s petition for review as untime-
ly, noting that it was filed more than eight months after
the initial decision was issued. Resp’t’s App. 28–33.
The full Board found that Seda was not a registered
e-filer and should have received service by another meth-
od, and thus determined that his petition was timely filed.
Final Order at 5 ¶7. However, the full Board agreed with
the AJ that Seda failed to show that he had first filed a
complaint with DOL. Id. at 5–6 ¶8. Because evidence of
administrative exhaustion is required to establish Board
jurisdiction over an appeal brought under the VEOA, and
Seda failed to provide such mandatory evidence, the
Board found that the AJ correctly dismissed the appeal
for lack of jurisdiction. Id.
Seda timely appealed from the Board’s final decision
to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
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)). The petitioner
must prove that the Board has jurisdiction by a prepon-
derance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i) (2014).
To establish the Board’s jurisdiction, the petitioner
must “show that he exhausted his remedies with the
Department of Labor.” Lazaro, 666 F.3d at 1319 (citing 5
U.S.C. § 3330a). The VEOA provides that a preference-
SEDA v. MSPB 5
eligible veteran may appeal an alleged violation of veter-
ans’ preference rights to the Board only after a complaint
is filed with the Secretary of Labor and only after the
Secretary has had a specified period of time to investigate
the complaint. 5 U.S.C. § 3330a(d)(1); id. § 3330a(a). The
VEOA also requires a written notification to the Secretary
of the veteran’s intent to bring such an appeal. Id.
§ 3330a(d)(2).
Seda argues that the Board did not consider the rule
against violating veterans’ preference requirements under
5 U.S.C. § 2302(b)(11). Seda claims that he is a prefer-
ence-eligible veteran who was suffering from and diag-
nosed with prostate cancer while employed by the SSA.
Seda contends that he never received a notice of removal
or a thirty-day notice, nor did he receive any additional
separation information as requested. Because the agency
had the burden of proving that its removal action was
justified, Seda posits, the Board should have reviewed the
merits of his case. Seda insists that the Board would
have found that the SSA had no evidence of misconduct
and thus that it violated his veterans’ preference rights by
terminating his employment based on his request for
reasonable accommodation for his disability. Seda finally
asserts that he wrote two letters to the Secretary of Labor
and received no response, thereby exhausting his admin-
istrative remedies.
The government responds that Seda bore the burden
of establishing jurisdiction, but that he failed to show that
he exhausted his administrative remedies and therefore
the Board could not assert jurisdiction over his appeal.
The government contends that both the AJ’s acknowl-
edgment order and SSA’s motion to dismiss informed
Seda of what he needed to do to establish the Board’s
jurisdiction over his appeal. The government also main-
tains that the Board correctly considered all the facts to
conclude that there was no evidence in the record that
Seda ever filed a complaint with the DOL. Moreover, the
6 SEDA v. MSPB
government argues, there was no valid reason to toll the
60-day filing deadline that Seda missed for filing his
complaint with the DOL.
We agree with the government that the Board did not
err in dismissing Seda’s appeal for lack of jurisdiction.
We acknowledge the apparent lack of an official explana-
tion for Seda’s termination; the only evidence from SSA in
the record before us pertaining to the merits of his remov-
al appears in the agency’s June 2014 motion to dismiss.
Seda’s frustration with the removal action, however, is
insufficient to vest the Board with jurisdiction to hear his
appeal. The VEOA requires exhaustion of administrative
remedies before a Board appeal, and the record does not
reflect any such action.
Seda asserts that he received a document dated Feb-
ruary 17, 2006, showing that SSA failed to provide DOL
with the reason for his removal. The Notice of Benefit
Determination in the record to which Seda refers states
that Seda was discharged “for reasons unknown” and that
the employing agency had “failed to provide additional
separation information as requested.” Resp’t’s App. 87.
Accordingly, “insufficient information ha[d] been present-
ed to show that [Seda’s] actions constituted misconduct in
connection with the work.” Id. The implication of this
assertion is that Seda did exhaust his administrative
remedies. However, that notice is a document from the
State of Maryland Department of Labor, Licensing and
Regulation, Division of Unemployment Insurance, regard-
ing state unemployment insurance benefits. Id. It has no
bearing on whether he exhausted his administrative
remedies with the United States Department of Labor by
timely challenging his removal as required by the VEOA.
Seda has also proffered, on appeal, letters allegedly
sent to the Secretary of Labor on December 24, 2005, and
on February 17, 2006. The first letter presents incon-
sistent assertions and, as his termination had not yet
SEDA v. MSPB 7
occurred at that date, merely reports that both of his
supervisors denied his requests for transfer and medical
leave. The second letter claims that it is a follow-up to
the first letter, and alleges that his recent removal violat-
ed his veterans’ preference rights. These letters, suppos-
edly not discovered until shortly before submitting them
to the court in September 2015, were not part of the
record before the Board. Thus, whatever their meaning,
they cannot be considered on appeal. See, e.g., Oshiver v.
Office of Personnel Mgmt., 896 F.2d 540, 542 (Fed. Cir.
1990).
Accordingly, Seda did not provide the Board with evi-
dence in support of his bare assertions that he timely filed
a complaint with the DOL. Moreover, as the government
states, he did not present evidence that good cause existed
for delaying the filing of a complaint such that the dead-
line should have been tolled. Without such evidence, the
Board lacked the statutory jurisdiction to adjudicate his
appeal based on a claim brought under the VEOA.
CONCLUSION
We have considered Seda’s remaining arguments and
find them unpersuasive. We conclude that Seda did not
establish the Board’s jurisdiction over his appeal, and
thus the Board did not err in dismissing his appeal for
lack of jurisdiction. Accordingly, the decision of the Board
is affirmed.
AFFIRMED
COSTS
No costs.