Miller v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
VICTORIA MILLER,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3132
______________________
Petition for review of the Merit Systems Protection
Board in No. AT3330130715-I-1.
______________________
Decided: November 12, 2014
______________________
VICTORIA MILLER, of Atmore, Alabama, 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.
______________________
Before PROST, Chief Judge, MAYER and LOURIE, Circuit
Judges.
2 MILLER v. MSPB
PER CURIAM.
Ms. Victoria Miller, petitioner, appeals from a deci-
sion of the Merit Systems Protection Board (“MSPB” or
“Board”), Miller v. U.S. Postal Serv., No. AT3330130715-I-
1 (M.S.P.B. May 15, 2014), dismissing her appeal for lack
of jurisdiction. Because Ms. Miller failed to establish that
the MSPB had jurisdiction over her appeal, in accordance
with 5 U.S.C. § 3330a(a)(2)(A), we affirm.
BACKGROUND
The following facts are not in dispute. Ms. Miller was
employed by the United States Postal Service (“USPS”) as
a Transitional Carrier. On or about February 2013, Ms.
Miller applied for, and was subsequently not hired for,
five different City Carrier Assistant positions. Ms. Miller
argues that the USPS did not hire her because of a “Pass-
over.” On March 11, 2013, Ms. Miller received a letter
from the USPS notifying her that the USPS had “submit-
ted a request to the Office of Personnel Management
(“OPM”) for authorization to ‘Passover’ [Ms. Miller] as a
compensable veteran and hire a non-preference eligible as
a City Carrier Assistant.” Resp’t App. 22. The letter
additionally explains that Ms. Miller was being passed
over because of her prior performance, including her
failure to deliver mail on her assigned route.
On June 27, 2013, Ms. Miller filed an appeal with the
MSPB seeking review of the USPS’s failure to hire her.
For the purpose of determining whether the Board had
jurisdiction, on July 11, 2013, the Administrative Judge
ordered Ms. Miller to provide “the date [she] believe[d] the
agency violated [her] veterans’ preference rights, the date
[she] filed a complaint with the Secretary of Labor, and
the date [she] received written notice, if any, from the
Secretary.” Resp’t App. 36. The Administrative Judge
ordered Ms. Miller to respond in twelve calendar days.
Ms. Miller failed to respond.
MILLER v. MSPB 3
On August 14, 2013, the Administrative Judge issued
its Initial Decision, dismissing Ms. Miller’s appeal for lack
of jurisdiction. The Administrative Judge found that Ms.
Miller had been put on notice that she needed to establish
that the Board had jurisdiction over her claim, but that
she had failed to provide any such evidence. Specifically,
the Administrative Judge found that Ms. Miller had
provided no evidence that she had exhausted her reme-
dies with the Department of Labor.
On May 15, 2014, the Board issued a nonprecedential
Final Order denying Ms. Miller’s Petition for Review. The
Board found that Ms. Miller had failed to submit a re-
sponse to the Administrative Judge’s jurisdictional order
and thus failed to demonstrate exhaustion of her adminis-
trative remedy.
DISCUSSION
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9). Per 5 U.S.C. § 7703(c), the court will only set
aside agency actions, findings, or conclusions if the court
determines them to be: “(1) arbitrary, capricious, 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) unsupported by
substantial evidence . . . .” See Cheeseman v. Office of
Pers. Mgmt., 791 F.2d 138, 140 (Fed. Cir. 1986).
For MSPB cases, the petitioner bears the burden of
establishing error in the agency’s decision. Here, that
would mean that Ms. Miller bears the burden of demon-
strating that the MSPB did have jurisdiction over her
case.
For the MSPB to have jurisdiction, the petitioner
must first exhaust her administrative remedies by filing a
complaint with the Secretary of Labor within sixty days of
the alleged violation. 5 U.S.C. § 3330a(a)(2)(A). Then, if
the Secretary of Labor is unable to resolve the complaint
4 MILLER v. MSPB
within sixty days, or within fifteen days of the petitioner
receiving written notification from the Department of
Labor that it cannot resolve the complaint, the complain-
ant may appeal to the MSPB. Id. § 3330a(d)(1).
The record is devoid of any evidence that Ms. Miller
filed a complaint with the Secretary of Labor, nor does
Ms. Miller now claim that she did file such a letter. “A
petitioner who ignores an order of the Administrative
Judge does so at his or her peril. Litigants before the
Board . . . are obligated to respect the Board, its proce-
dures, including deadlines, and the orders of the Board’s
judges.” White v. Dep’t of Veterans Affairs, 213 F.3d 1381,
1385 (Fed. Cir. 2000) (quoting Mendoza v. Merit Sys. Prot.
Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc) (ellipsis
in original). As Ms. Miller did not provide evidence that
she exhausted her administrative remedies, we hold that
the Board does not have jurisdiction over her claim.
Accordingly, we conclude that the Board did not abuse
its discretion in this case and properly dismissed Ms.
Miller’s claim. That dismissal is hereby affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.