Dean v. Merit Systems Protection Board ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID DEAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
AND
OFFICE OF PERSONNEL MANAGEMENT,
Intervenor.
______________________
2014-3026
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-12-0696-I-1.
______________________
Decided: June 6, 2014
______________________
DAVID DEAN, of Lugoff, South Carolina, pro se.
LINDSEY SCHRECKENGOST, Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With her on the brief
was BRYAN G. POLISUK, General Counsel.
2 DEAN v. MSPB
RUSSELL J. UPTON, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for intervenor. With him on
the brief were STUART F. DELERY, Assistant Attorney
General, BRYANT G. SNEE, Acting Director, and PATRICIA
M. MCCARTHY, Assistant Director. Of counsel on the brief
were KAMALA VASAGAM, General Counsel, KATHIE ANN
WHIPPLE, Deputy General Counsel, STEVEN E. ABOW,
Deputy General Counsel, and ROBIN M. RICHARDSON,
Senior Counsel, Office of the General Counsel, United
States Office of Personnel Management, of Washington,
DC.
______________________
Before PROST, ∗ Chief Judge, BRYSON and MOORE, Circuit
Judges.
PER CURIAM.
Petitioner David Dean appeals from an order of the
Merit Systems Protection Board (“Board”) dismissing his
appeal for lack of jurisdiction. The Board correctly held
that it lacked jurisdiction because Mr. Dean had not
shown that he exhausted his administrative remedies.
We affirm that dismissal.
BACKGROUND
On or about July 9, 2012, Mr. Dean submitted a com-
plaint to the Department of Labor (“DOL”). Mr. Dean
alleged that the Office of Personnel Management (“OPM”)
“has attached restrictive requirements for veterans to
apply for the Presidential Management Fellows (PMF)
that do not apply to none [sic] veterans.” Resp’t’s App. 29.
∗ Sharon Prost assumed the position of Chief Judge
on May 31, 2014.
DEAN v. MSPB 3
On July 10, 2012, the DOL issued a response letter
closing Mr. Dean’s complaint. It stated:
This letter is being provided to advise you that
your Veterans’ Preference complaint, alleging that
the Presidential Management Fellows (PMF) pro-
gram places an application and selection require-
ment on disabled veterans that are not placed on
non-veterans, is being closed this date as a prema-
turely-filed complaint. If after you have applied
for an announcement under the PMF program, or
expressed an interest in a position by initiating
contact with an agency and asked for considera-
tion for appointment to a specific position, and be-
lieve that your veterans’ preference rights were
violated in the selection process, you may file a
new complaint with our agency within 60 days af-
ter the date of the alleged violation.
Resp’t’s App. 32 (emphasis added).
The next day, Mr. Dean appealed the DOL’s decision
to the Board. There, the administrative judge issued an
initial decision dismissing Mr. Dean’s appeal for lack of
jurisdiction. The administrative judge held that (1) Mr.
Dean failed to show that he exhausted his administrative
remedies before the DOL; and (2) Mr. Dean did not make
a non-frivolous allegation that the agency violated his
rights under a statute or regulation relating to veterans’
preference. Dean v. Office of Pers. Mgmt., No. AT-3330-
12-0696-I-1 (M.S.P.B. Oct. 10, 2012) (“Initial Decision”).
In the final decision, the Board affirmed the initial
decision based solely on the first ground. Dean v. Office of
Pers. Mgmt., No. AT-3330-12-0696-I-1 (M.S.P.B. Sept. 9,
2013) (“Final Decision”). This appeal followed.
DISCUSSION
Under the Veterans Employment Opportunities Act of
1998 (“VEOA”), individuals who believe that an agency
4 DEAN v. MSPB
violated their rights under any statute or regulation
relating to veterans’ preference may file a complaint
seeking relief from the Secretary of Labor. 5 U.S.C.
§ 3330a(a)(1)(A)–(B). “If the Secretary of Labor is unable
to resolve [the] complaint . . . , the complainant may elect
to appeal the alleged violation to the Merit Systems
Protection Board . . . .” Id. § 3330a(d)(1).
But in order to establish Board jurisdiction over a
VEOA appeal, the appellant must, among other things,
show that he exhausted his remedy with the DOL. E.g.,
Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 1316, 1319
(Fed. Cir. 2012); Waddell v. U.S. Postal Serv., 94 M.S.P.R.
411, 414 (2003) (“The statute plainly includes a require-
ment that, before filing a Board appeal, an appellant must
exhaust his DoL remedy. The need to show exhaustion of
that remedy is therefore a jurisdictional element of a
VEOA appeal.”). The appellant must make that showing
by a preponderance of the evidence. Forest v. Merit Sys.
Prot. Bd., 47 F.3d 409, 410 (Fed. Cir. 1995). Finally,
“[w]hether the board had jurisdiction to adjudicate a case
is a question of law, which we review de novo.” Id.As noted, the administrative judge held that the
Board lacked jurisdiction to hear Mr. Dean’s appeal.
Specifically, the administrative judge held that Mr.
Dean’s DOL complaint was “untimely” because it “was
clearly determined by DOL to have been filed outside the
appropriate time period, i.e., too soon.” Initial Decision at
5. Looking to Board precedent concerning appeals of
untimely DOL complaints and the purpose of the exhaus-
tion requirement, the administrative judge concluded that
Mr. Dean failed to exhaust his administrative remedy.
Accordingly, the administrative judge concluded that the
Board lacked jurisdiction. In the final decision, the Board
“agree[d] with the administrative judge’s conclusion that
the appellant did not exhaust his administrative remedy
because of his prematurely filed DOL complaint.” Final
DEAN v. MSPB 5
Decision at 4 (citing Graves v. Dep’t of Veterans Affairs,
117 M.S.P.R. 491, ¶¶ 13-14 (2012)).
Mr. Dean now argues that his premature complaint
was not “untimely,” and thus, that the Board erred by
holding that his DOL complaint did not exhaust his
administrative remedy. According to Mr. Dean, the
Board’s reasoning and cited authority applies only to
complaints that were filed too late and not to premature
complaints like his own.
We recognize that jurisdictionally relevant differences
may exist between premature and late filings. For exam-
ple, a late complaint typically does not become timely if
filed again at a later date. A premature complaint, on the
other hand, may be amenable to timely refiling after the
passage of time or the occurrence of requisite events.
Indeed, the DOL’s response letter clearly contemplated
that under certain circumstances petitioner could timely
seek relief at the DOL in the future. But such differences
between premature and late complaints do not help Mr.
Dean. Indeed, the fact that he might properly exhaust
those remedies in the future indicates that he has not yet
done so. Thus, Mr. Dean’s argument that his premature
complaint should not be considered untimely for exhaus-
tion purposes fails.
Mr. Dean next argues that his complaint should not
even be considered premature because “filing one day
early is de minimius [sic].” Original Informal Br. 2. This
argument is unpersuasive. First, Mr. Dean provides no
authority for this proposition. Second, the DOL did not
dismiss Mr. Dean’s complaint because it was filed one day
before the relevant implementing regulations became
effective. Instead, the DOL dismissed the complaint
because Mr. Dean filed it before applying for an an-
nounced position under the Presidential Management
Fellows program or otherwise being in a position to have
his veterans’ preference rights violated. Simply put, even
6 DEAN v. MSPB
if filing one day early should be deemed timely, Mr.
Dean’s complaint cannot be fairly characterized as just
one day early.
Mr. Dean also appears to argue that the Board erred
because, according to Mr. Dean, after he filed his com-
plaint he was selected as a Presidential Management
Fellows semi-finalist and finalist. But whether Mr. Dean
later became a semi-finalist and finalist does not affect
the present jurisdictional analysis. Even if those devel-
opments would be sufficient to support a new or refiled
complaint with the DOL, they do not affect whether, at
the time of this appeal, Mr. Dean had actually exhausted
his administrative remedy.
We have considered Mr. Dean’s remaining arguments
and find them unpersuasive.
CONCLUSION
For the foregoing reasons, we affirm the Board’s dis-
missal of Mr. Dean’s appeal for lack of jurisdiction.
AFFIRMED
COSTS
Each party shall bear its own costs.