Rosado v. Merit Systems Protection Board ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JOSE W. LINARES ROSADO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3003
__________________________
Petition for review of the Merit Systems Protection
Board in NY3443080345-B-1.
----------------------
__________________________
JOSE W. LINARES ROSADO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3004
__________________________
LINARES-ROSADO v. MSPB 2
Petition for review of the Merit Systems Protection
Board in NY3330080346-B-1.
___________________________
Decided: May 6, 2011
___________________________
JOSE W. LINARES-ROSADO, of Luguillo, Puerto Rico
STEPHANIE CONLEY, Attorney, Office of the General
Counsel, United States Merit Systems Protection Board,
of Washington, DC, for the respondent. With her on the
brief were JAMES M. EISENMANN, General Counsel and
KEISHA DAWN BELL, Deputy General Counsel.
__________________________
Before BRYSON, PLAGER, and PROST, Circuit Judges.
PER CURIAM.
DECISION
In these two petitions for review of orders of the Merit
Systems Protection Board, José Linares Rosado seeks
review of the Board’s decisions dismissing his appeals
relating to his non-selection for a permanent position with
the United States Postal Service. We affirm the Board’s
decision in each of the two cases.
BACKGROUND
Mr. Linares Rosado worked for the Postal Service for
several years as a temporary employee. Following his
separation in 2003, he served in the United States mili-
tary. After leaving military service, he made several
attempts to reenter the Postal Service workforce. In May
3 LINARES-ROSADO v. MSPB
2008, the agency extended him a tentative offer as a Part
Time Flexible City Carrier. He was told that permanent
employment with the Postal Service would be conditioned
on his ability to meet the agency’s medical suitability
requirements for that position.
Mr. Linares Rosado was subsequently examined on
two occasions by Dr. Luis A. Echevarria. In addition to
examining Mr. Linares Rosado, Dr. Echevarria reviewed a
report sent to the Postal Service by Dr. Marian Torres
Medina of the Veterans Administration Healthcare Sys-
tem. Dr. Torres Medina stated that she scheduled an
examination for Mr. Linares Rosado, but that when he did
not show up for that appointment, she based her report on
a review of the records of another physician who had
examined him.
In July 2008, after reviewing the evaluation of Dr.
Echevarria, the Postal Service informed Mr. Linares
Rosado that he had been found medically unsuitable for
the position of City Carrier based on a medical evaluation
and a review of his medical records. The agency noted
that the Office of Personnel Management (“OPM”) would
review that decision because Mr. Linares Rosado was a
veteran with service-connected disabilities of at least 30
percent. See 5 C.F.R. § 339.306(b)(2). Mr. Linares Rosado
was told that he could submit any relevant information to
OPM within 15 days. He submitted additional informa-
tion that he claimed would undermine the Postal Service’s
medical findings. Despite that new information, OPM
rendered a final determination that Mr. Linares Rosado’s
“medical condition presents an unacceptable safety and
health risk and is likely to adversely affect [his] ability to
perform the full range of duties required for the position.”
LINARES-ROSADO v. MSPB 4
In August 2008, Mr. Linares Rosado filed an appeal
with the Merit Systems Protection Board arguing that the
Postal Service had failed to comply with applicable laws
and regulations when it chose not to hire him for a per-
manent mail carrier position. The Board docketed his
appeal as three separate actions: (1) a challenge to the
Postal Service’s conclusion that he was medically unsuit-
able for the carrier position; (2) an allegation that the
Postal Service had violated the Veterans Employment
Opportunities Act (“VEOA”); and (3) an allegation that
the Postal Service had violated the Uniformed Services
Employment and Reemployment Rights Act (“USERRA”).
Before the Board issued any rulings in the related
cases, Mr. Linares Rosado engaged in mediation with the
Postal Service through the agency’s Equal Employment
Opportunity (“EEO”) mediation program. In September
2008, the parties signed a settlement agreement under
which Mr. Linares Rosado would be referred to the
agency’s Reasonable Accommodation Committee to pre-
sent any medical evidence in support of his claim. Under
the settlement agreement, he would be awarded back pay
from May 2008 to the effective date of appointment to a
career position with the agency if he was found to be
physically and mentally fit for such a position. The
settlement agreement purported to resolve the “pending
MSPB appeal.”
After receiving the settlement agreement, a Board
administrative judge issued initial decisions summarily
dismissing all three appeals as withdrawn. Over the next
several months, Mr. Linares Rosado attempted to file
several documents with the Board contesting the terms of
the settlement agreement. The administrative judge
refused to consider those documents because they were
untimely filed.
5 LINARES-ROSADO v. MSPB
In June 2009, the parties agreed to revoke and void
the settlement agreement and recommence mediation
under the EEO program. Mr. Linares Rosado then peti-
tioned for Board rehearing of the dismissals of his ap-
peals. In October 2009, the Board vacated and remanded
the three decisions to the administrative judge after
finding that Mr. Linares Rosado had “presented sufficient
new evidence regarding whether a settlement agreement
was ever reached to both excuse his late filing and sup-
port a request to reopen and reinstate his appeals.”
In separate rulings on remand, the administrative
judge again dismissed Mr. Linares Rosado’s challenge to
the Postal Service’s medical unsuitability determination
and his VEOA appeal. 1 The administrative judge con-
cluded that the Board lacked jurisdiction over Mr. Linares
Rosado’s challenge to the Postal Service’s medical unsuit-
ability determination because the statute governing an
agency’s decision to pass over a preference eligible job
applicant does not provide for a right of appeal to the
Board. The administrative judge separately concluded
that the Board lacked jurisdiction over any challenge
brought by Mr. Linares Rosado under the VEOA, either
because he had not exhausted his administrative reme-
dies or because he had not raised a non-frivolous allega-
tion of a violation of a statute or regulation relating to
veterans preference. After the full Board denied review,
Mr. Linares Rosado sought review in this court.
DISCUSSION
The Merit Systems Protection Board has limited ju-
risdiction. Absent special circumstances, an agency’s
1 Mr. Linares Rosado’s USERRA appeal is not be-
fore the court.
LINARES-ROSADO v. MSPB 6
failure to select an individual for a position is not review-
able by the Board. See 5 U.S.C. §§ 7512, 7513. As noted
by the Board, the statute governing agency procedures for
passing over a preference eligible applicant does not
provide for Board review of that decision, whether that
determination is made by the agency alone or only after
review by OPM. See 5 U.S.C. § 3318; 5 C.F.R.
§ 332.406(g); Lodge v. Dep’t of the Treasury, 109 M.S.P.R.
614, 618 n.3 (2008). Because Mr. Linares Rosado has
failed to show that the Board has jurisdiction over his
non-selection, we affirm the Board’s dismissal of his
challenge to the Postal Service’s medical unsuitability
determination for lack of jurisdiction.
The Board may consider claims arising from a non-
selection when the VEOA provides an independent
ground for the exercise of jurisdiction. A preference-
eligible veteran may file a complaint with the Department
of Labor (“DOL”) alleging that an agency has violated that
individual’s rights under a statute or regulation relating
to veterans’ preference. 5 U.S.C. § 3330a(a)(1)(A). Any
such complaint must be filed within 60 days of the date of
the alleged violation. Id. § 3330a(a)(2)(A). If DOL does
not resolve the complaint within 60 days of its filing, the
veteran may appeal the violation to the Board after first
providing written notification to DOL that the veteran
intends to appeal. Id. § 3330a(d)(2)(A). No appeal to the
Board may be taken under the VEOA before that admin-
istrative remedy is exhausted. See 5 C.F.R. § 1208.2(b);
Downs v. Dep’t of Veterans Affairs, 110 M.S.P.R. 139, 143
(2008).
The Board found no evidence that Mr. Linares Rosado
had ever filed a complaint with DOL alleging a violation
of the VEOA relating to the Postal Service’s medical
unsuitability determination. The record reflects that he
7 LINARES-ROSADO v. MSPB
filed two complaints with DOL, but both of those com-
plaints antedate and are unrelated to the medical unsuit-
ability determination. Because Mr. Linares Rosado has
not presented any evidence that he has exhausted his
administrative remedies, the Board lacks jurisdiction over
his VEOA claim to the extent that it relates to the medi-
cal unsuitability determination.
The administrative judge also addressed and dis-
missed VEOA claims raised by Mr. Linares Rosado aris-
ing from his separation from his position in 2003. On
appeal, Mr. Linares Rosado states several times that his
present VEOA appeal “is not related in any manner to
[his] case in 2003,” which is “completely different.” He
takes the position that the events of 2003 simply provide
a backdrop to the violations alleged in the present case.
Therefore, we do not consider his claims arising from
agency actions that took place before 2008.
Mr. Linares Rosado alleges a due process violation
stemming from that fact that he has “fil[ed a] motion
without the benefit of receiving copies of the written
documents presented by the [Postal Service].” His claim
appears to be that the Postal Service did not provide him
with complete documentation supporting its medical
unsuitability determination. We have recognized that
public employees have a due process right to notice of the
employer’s evidence and an opportunity to respond to that
evidence before a removal, see, e.g., Ward v. U.S. Postal
Serv., 634 F.3d 1274, 1279 (Fed. Cir. 2011), but Mr.
Linares Rosado is not contesting a removal in this case.
Even if the Postal Service acted improperly in refusing to
give Mr. Linares Rosado access to his medical records, the
Board would have no jurisdiction to remedy that violation
because it lacks jurisdiction over his non-selection claim.
LINARES-ROSADO v. MSPB 8
Mr. Linares Rosado alleges several other violations of
“Law, Rules, [and] Regulations” by the Postal Service, the
Department of Veterans Affairs, and OPM. Several of
those regulations address procedures for “suitability
actions.” However, the actions taken by the Postal Ser-
vice and OPM here were not suitability actions as that
term is used in the pertinent regulations. See 5 C.F.R.
731.203(b). With respect to the remaining statutes and
regulations raised by Mr. Linares Rosado, he has failed to
present evidence that any of those laws have been vio-
lated by any of the agencies he identifies. We therefore
affirm the Board’s dismissal of each of his claims for lack
of jurisdiction.
No costs.
AFFIRMED