                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOHNNY L. MILLIGAN,                             DOCKET NUMBER
                   Appellant,                        DC-0351-13-1299-I-1

                  v.

     GOVERNMENT OF THE DISTRICT                      DATE: August 11, 2014
       OF COLUMBIA,
                  Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Johnny L. Milligan, Fairfax, Virginia, pro se.

           Frank J. McDougald, Esquire, washington dc, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                         2

     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).             After fully
     considering the filings in this appeal, and based on the following points and
     authorities, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant was employed by the District of Columbia government as a
     support services specialist in its Office of Planning.      He was separated by a
     reduction in force effective September 11, 2009. Initial Appeal File (IAF), Tab 3,
     Subtab 1.   The appellant appealed his separation to the District of Columbia
     Office of Employee Appeals (OEA) on September 4, 2009.               OEA issued an
     October 11, 2011 initial decision upholding the appellant’s separation, and the
     appellant’s petition for review of that decision was denied by the Superior Court
     of the District of Columbia on June 26, 2013. IAF, Tab 3, Subtabs 3 & 3a.
¶3         The appellant filed a Board appeal on July 29, 2013.         IAF, Tab 1.     He
     alleged, inter alia, that his veterans’ preference rights had been violated. Id. at 6.
     The agency moved to dismiss the appeal for lack of jurisdiction, arguing both that
     the appellant was not an “employee” with Board appeal rights and that he did not
     first file a complaint with the Department of Labor (DOL) regarding his Veterans
     Employment Opportunities Act of 1998 (VEOA) claim as is required in order to
     establish Board jurisdiction. IAF, Tab 5 at 8-9.
¶4         In response to an order to show cause, the appellant argued that the Board
     has jurisdiction based upon alleged prohibited personnel practices, including
                                                                                      3

     whistleblower retaliation.   IAF, Tab 3 at 3-4.     He also stated that the Board
     should exercise jurisdiction over his VEOA claim. He admitted that he did not
     file a complaint with DOL concerning his VEOA claim but stated that his failure
     to file was due to lack of notice regarding the filing requirements. Id. at 6.
¶5         The administrative judge issued an initial decision dismissing the
     appellant’s appeal for lack of jurisdiction because the appellant was not an
     employee in the federal civil service and because he did not first file his VEOA
     claim with DOL. IAF, Tab 8, Initial Decision. On review, the appellant argues
     that the reduction in force notice he received was inadequate and that the agency
     committed prohibited personnel practices. Petition for Review (PFR) File, Tab 3
     at 6-8. The agency has filed a response in opposition to the petition for review.
     PFR File, Tab 5. The appellant has filed a reply in which he argues, inter alia,
     that the agency failed to notify him of his appeal rights as a whistleblower. PFR
     File, Tab 6 at 5.
¶6         The Board’s jurisdiction is limited to those matters over which it has been
     given jurisdiction by law, rule, or regulation.         Maddox v. Merit Systems
     Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). For the purposes of Title 5
     and for the Board’s jurisdiction, unless specifically modified, an “employee”
     means an individual appointed in the civil service.          5 U.S.C. § 2105(a)(1).
     Additionally, OEA was established beginning in December 1980 to adjudicate
     District of Columbia employee appeals locally, as opposed to on a federal level.
     See District of Columbia v. Merit Systems Protection Board, 762 F.2d 129,
     130-31 (D.C. Cir. 1985). The appellant pursued his appeal rights as a District of
     Columbia employee through OEA and the Superior Court of the District of
     Columbia.    IAF, Tab 3 at 17-29.      Although the appellant claims jurisdiction
     because he was a District of Columbia employee, he does not contend that he was
     employed in the federal civil service. See id. at 3. Employees of the Government
     of the District of Columbia do not come within the statutory definitions set forth
     in 5 U.S.C. § 2101 (“civil service”), 5 U.S.C. § 2105 (“employee”), and 5 U.S.C.
                                                                                             4

     § 2103 (“excepted service”); nor do they have appeal rights to the Board. Cyrus
     v. Government of the District of Columbia, 25 M.S.P.R. 396, 397 n.* (1984). The
     Board therefore does not have jurisdiction over this case. 2               See 5 U.S.C.
     §§ 1221(a), 2105(a)(1), 7511(a)(1).
¶7         Thus, we conclude that the administrative judge correctly dismissed this
     appeal for lack of jurisdiction.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
     States Court of Appeals for the Federal Circuit.
           The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
     and that filings that do not comply with the deadline must be dismissed. See
     Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).



     2
       To the extent that the appellant is attempting to bring an individual right of action
     (IRA) appeal alleging whistleblower reprisal, the right to file an IRA appeal is limited
     to employees, former employees, or applicants for employment, and the appellant
     does not qualify for the reasons explained above. See 5 U.S.C. § 1221(a). Moreover,
     the appellant argues that the Office of Special Counsel (OSC) has jurisdiction over this
     case but does not dispute that he failed to exhaust his administrative remedies before
     OSC as is required for Board jurisdiction over an IRA appeal. IAF, Tab 3 at 3; see
     Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
     Similarly, to the extent that the appellant is attempting to bring a VEOA claim, and
     without reaching the issue of whether the appellant is a preference eligible, the Board
     lacks jurisdiction over such a claim because the appellant admits that he has not
     exhausted his remedy with DOL as is mandatory prior to exercise of Board jurisdiction.
     IAF, Tab 7 at 6; Hillman v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 9 (2003).
     We also note that the appellant’s claims of prohibited personnel practices would not
     provide a basis for Board jurisdiction, even if the appellant met the statutory definition
     of “employee.” See Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d
     681 F.2d 867, 871-73 (D.C. Cir. 1982).
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        If you want to request review of the Board’s decision concerning your
claims    of   prohibited      personnel    practices   under   5   U.S.C.     § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,        which        can      be        accessed        through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           6

Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
