Burroughs v. Merit Systems Protection Board , 426 F. App'x 897 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MILO D. BURROUGHS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent,
and
DEPARTMENT OF DEFENSE,
Intervenor.
__________________________
2011-3021
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA3330090583-I-1.
__________________________
Decided: June 13, 2011
__________________________
MILO D. BURROUGHS, Yelm, Washington, pro se.
JEFFREY A. GAUGER, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
BURROUGHS v. MSPB 2
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
VINCENT D. PHILLIPS, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for intervenor. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and STEVEN J.
GILLINGHAM, Assistant Director.
__________________________
Before RADER, Chief Judge, PROST and O’MALLEY, Circuit
Judges.
PER CURIAM.
Appellant Milo Burroughs petitions for review of the
final decision of the Merit Systems Protection Board
(“MSPB” or “Board”) dismissing his appeal for lack of
jurisdiction. Because the Board correctly determined that
it lacked jurisdiction over Mr. Burroughs’s appeal, we
affirm.
BACKGROUND
Mr. Burroughs, an honorably discharged veteran of
the United States Air Force, applied for a position as an
Aerospace Engineer with the Department of Defense.
After reevaluating its needs, the agency determined that
it did not need an Aerospace Engineer, and it cancelled
the request for personnel action. Having not been se-
lected for the position, Mr. Burroughs filed a complaint
with the Department of Labor on April 25, 2009, alleging
that the agency violated his veterans preference rights by
not selecting him for the job. The Department of Labor
did not respond to the complaint. After sixty-one days,
3 BURROUGHS v. MSPB
Mr. Burroughs appealed his nonselection with the MSPB.
An administrative judge issued an initial decision de-
nying the nonselection claim on the merits. On review,
the Board questioned its jurisdiction over Mr. Burroughs’s
nonselection claim because it was not clear that Mr.
Burroughs had exhausted his administrative remedy with
the Department of Labor as required under the Veterans
Employment Opportunity Act (“VEOA”). Noting that the
record was not complete, the Board specifically directed
Mr. Burroughs to submit evidence that he had satisfied
the exhaustion requirement. The Board explained that
Mr. Burroughs could satisfy the VEOA requirements by
submitting evidence that the Department of Labor had
sent him a written notification of the results of its inves-
tigation of the complaint including a notification that it
was unable to resolve the complaint. Alternatively, he
could submit evidence that the Department of Labor had
not resolved the complaint within sixty days, and that he
had notified the Secretary of Labor of his intention to file
an appeal with the MSPB.
Mr. Burroughs responded to the Board’s order by at-
taching a copy of his April 25, 2009 Department of Labor
complaint and stating that he had filed his MSPB appeal
sixty-one days after filing the Department of Labor com-
plaint. This partial response was not sufficient because
Mr. Burroughs did not satisfy either of the alternatives
described by the Board. With respect to the first ap-
proach, he did not indicate whether the Department of
Labor had sent him written notification of its resolution of
his complaint. With respect to the second approach, he
did not show that he had informed the Secretary of Labor
of his intention to file an appeal with the MSPB.
BURROUGHS v. MSPB 4
Given these failures, the MSPB dismissed the appeal
for lack of jurisdiction, concluding that Mr. Burroughs
had not exhausted his administrative remedy with the
Department of Labor. Burroughs v. Dep’t of Defense,
DA3330090583-I-1 (M.S.P.B. Sept. 21, 2010). Because it
did not have jurisdiction, the MSPB did not reach the
merits of the nonselection claim. This appeal followed.
DISCUSSION
The scope of our review of a Board decision is limited.
We review the Board’s decision about its jurisdiction
without deference. Butler v. Soc. Sec. Admin., 331 F.3d
1368, 1371-72 (Fed. Cir. 2003).
The MSPB dismissed Mr. Burroughs’s appeal for lack
of jurisdiction without reaching the merits of his non-
selection claim. On appeal to this court, Mr. Burroughs
argues that the MSPB has jurisdiction over his nonselec-
tion claim under both the VEOA and the Veterans Prefer-
ence Act (“VPA”) itself.
Mr. Burroughs first argues that he has satisfied the
VEOA exhaustion requirements because he filed his
appeal more than sixty days after filing his complaint
with the Department of Labor. While the record supports
that the appropriate amount of time had passed before
Mr. Burroughs filed his appeal, nothing in the record
supports that he provided the required written notice to
the Secretary of Labor of his intention to bring an MSPB
appeal. See 5 U.S.C § 3330a(d)(2). This written notifica-
tion is important because it lets the Secretary of Labor
know she should stop investigating the complaint. Mr.
Burroughs states that he “notified the [Secretary of
Labor]” on April 25, 2009 of his intention to appeal to the
Board using “form OBM NO. 1293-0002 designed specifi-
5 BURROUGHS v. MSPB
cally for that purpose.” The form that Mr. Burroughs
points to, however, is his original complaint. This docu-
ment does not serve as written notice that he is electing to
appeal the alleged violation to the MSPB. Because the
record does not contain evidence that Mr. Burroughs
notified the Secretary of Labor in writing that he was
appealing his nonselection to the MSPB, the MSPB
correctly concluded that he had not satisfied the VEOA
exhaustion requirements. Accordingly, the MSPB does
not have jurisdiction over the nonselection claim under
the VEOA.
Mr. Burroughs further argues that the VPA provides
an independent source of jurisdiction for his nonselection
claim. As this court has already explained in Burroughs
v. Merit Systems Protection Board, No. 2010-3180 (Fed.
Cir. Apr. 8, 2011), the MSPB’s authority to entertain
nonselection claims stems from the VEOA. The VPA does
not provide an independent source of MSPB jurisdiction
over Mr. Burroughs’s appeal.
The Board correctly determined that it lacked juris-
diction over Mr. Burroughs’s appeal. Accordingly, we
affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED