Burroughs v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential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 TRANSPORTATION,
Intervenor.
__________________________
2010-3180
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA4324100311-I-1.
___________________________
Decided: April 8, 2011
___________________________
MILO D. BURROUGHS, of 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 GAJARSA, SCHALL, and PROST, Circuit Judges.
PER CURIAM.
This case arises from the Merit Systems Protection
Board’s (“Board”) dismissal for lack of jurisdiction of Milo
D. Burroughs’s appeal of his non-selection for employ-
ment. Burroughs v. Dep’t. of Transp, DA-4324-10-0311-I-
1, slip. op. at 6 (M.S.P.B. July 14, 2010) (“Initial Deci-
sion”). For the reasons discussed below, we affirm the
Board’s decision.
BACKGROUND
Mr. Burroughs is an honorably discharged veteran of
the United States Air Force. In June 2009, the Federal
Aviation Administration (“FAA”), an administration of the
Department of Transportation (“Agency”), announced
vacancies for Aviation Safety Inspectors in Fort Worth
and San Antonio, Texas. The Agency advertised the
positions under two vacancy announcement numbers: one
for internal candidates and one for external candidates.
Mr. Burroughs applied for the positions under the exter-
nal vacancy announcement, but he was not selected.
Following his non-selection, Mr. Burroughs filed a
claim with the Department of Labor (“DOL”) alleging that
3 BURROUGHS v. MSPB
the Agency violated his veterans’ preference rights. In
October 2009, the DOL denied Mr. Burroughs’s claim,
finding that he did not present evidence that the Agency
violated his veterans’ preference rights.
On March 16, 2010, Mr. Burroughs filed an appeal to
the Board alleging the Agency violated his veterans’
preference rights by denying him five veterans’ preference
points. Mr. Burroughs claimed the Board had jurisdiction
over his appeal under the Veterans Preference Act of
1944, ch. 287, 58 Stat. 387 (“VPA”). 1 Initial Decision at 3.
The Administrative Judge (“AJ”) dismissed the appeal for
lack of jurisdiction, finding the VPA does not confer
jurisdiction upon the Board to entertain appeals when an
individual believes the law has been violated. Id. at 5.
Mr. Burroughs did not seek review by the full Board, and
the AJ’s decision became final on August 18, 2010. Mr.
Burroughs filed a timely appeal to this court. We have
jurisdiction pursuant to 5 U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
Our review of the Board’s decisions is limited under 5
U.S.C. § 7703(c). By statute, we must affirm the Board’s
holding unless it is found to be: (1) arbitrary, capricious,
1 Mr. Burroughs previously filed an appeal to the
Board alleging a violation of his veterans’ preference
rights under the Veterans Employment Opportunities Act
(“VEOA”). Burroughs v. Dep’t of Transp., DA-3330-10-
0036-I-1 (M.S.P.B. Dec. 2, 2009). The Administrative
Judge dismissed that appeal, finding that the Board did
not have jurisdiction because the VEOA does not apply to
the FAA, citing Morse v. Merit Sys. Prot. Bd., 621 F.3d
1346, 1351 (Fed. Cir. 2010). In the present case,
Mr. Burroughs made unequivocally clear that he “does not
allege jurisdiction under the VEOA” and that “this appeal
is not a VEOA appeal.” R.A. at 22, 23.
BURROUGHS v. MSPB 4
an abuse of discretion, or otherwise not in accordance
with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) un-
supported by substantial evidence. 5 U.S.C. § 7703(c);
Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed. Cir.
1995). Whether the Board has jurisdiction to adjudicate
an appeal is a question of law, which this court reviews de
novo. Forest, 47 F.3d at 410.
DISCUSSION
The Board's jurisdiction is not plenary, but is limited
to actions made appealable to it by law, rule, or regula-
tion. Roche v. United States Postal Serv., 828 F.2d 1555,
1557 (Fed.Cir.1987); see also 5 U.S.C. § 7701(a); 5 U.S.C. §
1204(a)(1). When an individual appeals to the Board, he
or she has the burden of proving—by a preponderance of
the evidence, i.e., the degree of relevant evidence that a
reasonable person, considering the record as a whole,
would accept as sufficient to find that a contested fact is
more likely to be true than untrue—that the board has
jurisdiction. See 5 C.F.R. §§ 1201.56(a)(2), (c)(2).
Mr. Burroughs claims that the Board has jurisdiction
over his appeal under the VPA. The provisions of the
VPA provide qualifying veterans various preferences in
applying for and maintaining civil service positions within
the competitive and excepted services. See 5 U.S.C. §
2108, 3308-3320; 5 C.F.R. §§ 302.101-302.403. Eligibility
for veterans’ preferences is governed by 5 U.S.C. § 2108,
while the preferences that veterans are entitled to are
articulated in 5 U.S.C. §§ 3308-3320.
Here, Mr. Burroughs argues that Section 14 of the
VPA, as originally enacted, provides the Board with
jurisdiction over his claim. The original statutory lan-
guage of Section 14 established a right of appeal to the
Civil Service Commission—the predecessor of the Board—
5 BURROUGHS v. MSPB
for adverse actions such as discharge, suspension for more
than thirty days, furlough without pay, reduction in rank
or compensation, and debarment from future employ-
ment. See 58 Stat. at 390. Notably, this provision did not
include a right of appeal for non-selection, which is the
type of claim Mr. Burroughs is attempting to bring before
the Board. 2 Further, appealable adverse actions are
currently set forth at 5 U.S.C. § 7512 and do not include
non-selections and other hiring issues. 3 Cf. Prewitt v.
Merit Syst. Protection Bd., 133 F.3d 885, 886-87 (Fed. Cir.
1998). Therefore, the Board does not have jurisdiction
under either the original statutory provision or 5 U.S.C. §
7512, where appealable adverse actions are currently
codified.
Mr. Burroughs cites the panel opinion in Noble v.
Tennessee Valley Authority, 876 F.2d 1580 (Fed. Cir.
1989), in support of his position that the Board had juris-
diction under the VPA. In Noble, the petitioner filed an
2 Mr. Burroughs references the phrase “debarred
for future appointment” as the basis of his claim. Peti-
tioner’s Br. at 4, 5. But “debarment” refers to a prohibi-
tion on hiring. See, e.g., Peters v. Hobby, 349 U.S. 331,
337 (1955); Powers v. United States, 169 Ct. Cl. 626(1965). We do not believe that non-selection for a given
position constitutes being “debarred for future appoint-
ment” as that phrase was used in the VPA.
3 The first 168 words of Section 14 of the VPA were
initially codified at 5 U.S.C. § 863. See 5 U.S.C. § 863(1952). The codification was subsequently moved to 5
U.S.C. § 7512, with certain definitions set forth in 5
U.S.C. § 7511, and enacted into positive law. Act of Sept.
6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 528; see also
H.R. Rep. No. 89-901, at 133 (1965). The remainder of
Section 14 of the VPA was codified at 5 U.S.C. §§ 3315and 7701. See H.R. Rep. No. 89-901, at 217. Section 14 of
the VPA, as originally enacted, was repealed. 80 Stat. at
632, 652; see also H.R. Rep. No. 89-901, at 209, 217.
BURROUGHS v. MSPB 6
appeal to the Board alleging that the Tennessee Valley
Authority illegally failed to recognize his reemployment
rights under the VPA. Id. at 1581. But on rehearing en
banc, this court held that the Board did not have jurisdic-
tion over the appeal because the petitioner “cited no ‘law,
rule, or regulation’ authorizing an appeal to the MSPB . . .
and none exists.” Noble v. Tenn. Valley Authority, 892
F.2d 1013, 1015 (Fed. Cir. 1989) (en banc). Like the
petitioner in Noble, Mr. Burroughs does not cite any law,
rule, or regulation authorizing his appeal, and therefore
he failed to carry the burden of proving that the Board
may exercise jurisdiction over his claim. 4
This court has consistently held that authority for the
Board to entertain claims of veterans’ preference viola-
tions stems from 5 U.S.C. § 3330a, a provision of the
VEOA. Patterson v. Dep’t of Interior, 424 F.3d 1151, 1155
(Fed. Cir. 2005); Campion v. Merit Sys. Prot. Bd., 326
4 Mr. Burroughs also directs the court’s attention to
a case in the United States District Court for the Eastern
District of Virginia, variously identified as Burroughs v.
United States or Burroughs v. Hampton, No. 106-71-N, in
support of his claim that the Board has jurisdiction under
the VPA. Mr. Burroughs does not provide a citation to a
published opinion, and the court was unable to locate the
case in the electronic databases to which the court has
access. Because the case is apparently unpublished, Mr.
Burroughs was required to submit a copy of the associ-
ated “opinion, order, judgment, or other written disposi-
tion” with his brief. Fed. R. App. P. 32.1(b). Instead, Mr.
Burroughs submitted only a “Certificate of Settlement”
from the General Accounting Office that references the
case that he cited. The court nevertheless contacted the
clerk’s office in the Eastern District of Virginia, but we
were unable to locate any records regarding the cited
case. Regardless, because an unrelated district court case
is in no way binding upon this court, we do not think that
our inability to review Mr. Burroughs’s previous case is of
practical significance.
7 BURROUGHS v. MSPB
F.3d 1210, 1213 (Fed. Cir. 2003); Lapuh v. Merit. Sys.
Prot. Bd., 284 F.3d 1277, 1279 (Fed. Cir. 2002). However,
Mr. Burroughs’s appeal is expressly premised on the VPA,
and we conclude that he failed to carry his burden of
proving the Board has jurisdiction under that statute.
CONCLUSION
Accordingly, because the Board correctly determined
that it lacked jurisdiction over Mr. Burroughs appeal, we
affirm.
No Costs.