                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GREGORY V. BAKA,                                DOCKET NUMBER
                  Appellant,                         SF-3330-15-0436-I-2

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: June 17, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Gregory V. Baka, Dublin, California, pro se.

           Melanie F. Jones, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed the Veterans Employment Opportunities Act of 1998 (VEOA) appeal
     for failure to state a claim upon which relief can be granted. 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative 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, 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).

                                           BACKGROUND
¶2             Effective January 30, 2015, the agency removed the appellant from his
     GS-15 Attorney Advisor position with the Bureau of Alcohol, Tobacco, Firearms,
     and Explosives. Baka v. Department of Justice, MSPB Docket No. SF-3330-15-
     0436-I-1, Initial Appeal File (I-1 IAF), Tab 11, Subtabs 4a-4b.                 He filed a
     complaint with the Department of Labor (DOL) on February 23, 2015, alleging
     that      his    removal   violated    the   Uniformed      Services   Employment     and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301–4333)
     (USERRA) and VEOA. I-1 IAF, Tab 1 at 302–04. On February 25, 2015, the
     appellant amended his January 21, 2015 formal equal employment opportunity
     (EEO) complaint to include his removal.             I-1 IAF, Tab 7 at 4, 11–12.        On
     March 11, 2015, DOL advised him that it had concluded its investigation of his
     VEOA complaint and that he could file an appeal with the Board as to that claim.
     I-1 IAF, Tab 1 at 306. Subsequently, on March 24, 2015, he filed an appeal with
                                                                                           3

     the Board regarding his removal.        I-1 IAF, Tab 1. 2    Among other things, he
     asserted that his removal violated VEOA. The administrative judge dismissed
     both the VEOA appeal and the chapter 43 removal appeal without prejudice as
     they were prematurely filed because 120 days had not yet passed since the filing
     of the appellant’s EEO complaint, and the agency had not yet issued its final
     decision on that complaint. I-1 IAF, Tab 12, Initial Decision.
¶3         The appellant petitioned for review of both appeals. He argued that the
     administrative judge erroneously conflated his EEO complaint with his VEOA
     appeal. Baka v. Department of Justice, MSPB Docket No. SF-3330-15-0436-I-1,
     Petition for Review File, Tab 1. He contended that his VEOA appeal already was
     ripe for adjudication because he had exhausted his administrative remedy with
     DOL before filing it with the Board.        Id.   He also contended that his VEOA
     appeal is distinct and severable from his EEO complaint. Id.
¶4         The Board agreed with the appellant’s arguments on petition for review and
     forwarded the VEOA appeal to the Western Regional Office for docketing as a
     refiled appeal. Baka v. Department of Justice, MSPB Docket No. SF-3330-15-
     0436-I-1, Final Order (Sept. 30, 2015). In its decision, the Board noted that the
     appellant had checked the box on his initial appeal form indicating that he also
     was appealing an involuntary retirement and that the administrative judge did not
     address this claim. Id., ¶ 4 n.4. The Board found that the administrative judge
     should resolve the issue of whether the appellant continues to pursue this issue
     during the adjudication of the refiled appeal. Id. The Board did not forward the
     appellant’s chapter 43 removal claim for docketing, however, because it appeared
     that the appellant wished to continue this claim within his EEO complaint. Id.



     2
       The administrative judge docketed three separate matters, all relating to the agency’s
     removal action; the instant VEOA appeal, a chapter 43 removal appeal (Baka v.
     Department of Justice, MSPB Docket No. SF-0432-15-0435-I-1), and an appeal under
     USERRA (Baka v. Department of Justice, MSPB Docket No. SF-4324-15-0437-I-1).
                                                                                      4

¶5         In the refiled VEOA appeal, the administrative judge found that the
     appellant established Board jurisdiction over his assertion in his VEOA appeal
     that the agency subjected him to a reduction in force (RIF) without affording him
     his veterans’ preference rights. Baka v. Department of Justice, MSPB Docket
     No. SF-3330-15-0436-I-2, Appeal File, Tab 7, Initial Decision (I-2 ID) at 3.
     However, he found that the appellant failed to establish Board jurisdiction over
     his assertion that the agency subjected him to an involuntary retirement because
     the appellant failed to exhaust his administrative remedies before DOL over this
     matter as neither his VEOA complaint nor DOL’s closure letter discuss an
     involuntary retirement. I-2 ID at 4. Alternatively, the administrative judge found
     that, to the extent that the appellant had exhausted his remedies with DOL
     regarding his involuntary retirement claim, he failed to state a claim because the
     record establishes that he was removed from his position, not that he was retired
     involuntarily. I-2 ID at 6 n.3.
¶6         The administrative judge also found that there was no evidence that the
     agency undertook a RIF pursuant to 5 C.F.R. part 351. I-2 ID at 5. He found that
     the agency removed the appellant for unacceptable performance pursuant to
     5 C.F.R. part 432, and the appellant did not identify any statute or regulation
     providing veterans’ preference when an agency removes an employee for
     unacceptable performance. I-2 ID at 5-6.
¶7         In his petition for review of the refiled appeal, the appellant claims, as he
     did below, that circumstantial evidence establishes that the agency manufactured
     his performance deficiencies because it wanted to remove him to lower costs by
     reducing the number of attorneys in the office where he worked.            Baka v.
     Department of Justice, MSPB Docket No. SF-3330-15-0436-I-2, Petition for
     Review File (I-2 PFR File), Tab 1.     He asserts that the agency’s actions thus
     constituted a “de facto” RIF and that the agency should have accorded him
     veterans’ preference, which it would have been required to apply had it utilized
     formal RIF procedures. Id.
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                      DISCUSSION OF ARGUMENTS ON REVIEW
¶8         An appeal that is within the Board’s jurisdiction can be dismissed for
      failure to state a claim upon which relief can be granted if the appellant cannot
      obtain relief before the Board even if his allegations are accepted as true.
      Alford v. Department of Defense, 113 M.S.P.R. 263, ¶ 11 (2010), aff’d,
      407 F. App’x 458 (Fed. Cir. 2011).       Dismissal for failure to state a claim is
      appropriate if, taking the appellant’s allegations as true and drawing all
      reasonable inferences in his favor, he cannot prevail as a matter of law. Id. As
      discussed below, the appellant’s allegations on review do not provide a basis for
      disturbing the initial decision that dismissed the VEOA appeal for failure to state
      a claim.
¶9         In particular, the appellant has failed to show that the agency was
      undergoing organizational changes that dictated that it must use RIF procedures.
      See Allen v. Office of Personnel Management, 77 M.S.P.R. 212, 219 (1998). He
      failed to show that the agency was precluded from taking the legally authorized
      action of removal for unacceptable performance.       As the administrative judge
      properly found and the appellant concedes, there is no statute or regulation
      providing veterans’ preference when removing any employee for unacceptable
      performance. I-2 PFR File, Tab 1 at 7.
¶10        In his petition, the appellant also asserts that the administrative judge erred
      in finding that he failed to exhaust his administrative remedies with DOL as to his
      alleged involuntary retirement.     As noted, the administrative judge found
      alternatively that the appellant would not have stated a claim under VEOA if he
      did exhaust his administrative remedies regarding this action. We agree. The
      Board has recognized that definite knowledge from a specific written notice that
      an employee faces involuntary separation from his position or from Federal
      service as of some specific date because of coming organizational changes that
      may require RIF procedures is a prerequisite before his or her retirement or
      resignation may be accepted as involuntary and qualifying for discontinued
                                                                                            6

      service retirement.    Allen, 77 M.S.P.R. at 219.       Here, the appellant neither
      received such notice, nor was the agency under any obligation to issue such
      notice. 3   Thus, he did not state a claim under VEOA as to his alleged
      involuntary retirement.
¶11         In his petition, the appellant asserts further that the agency’s removal of
      him for unacceptable performance was in error.           This assertion, however, is
      beyond the scope of this VEOA appeal. As noted, the Board’s Regional Office
      properly docketed the appellant’s allegations challenging the agency’s assertions
      regarding his performance as a separate appeal.          See Baka v. Department of
      Justice, MSPB Docket No. SF-0432-15-0435-I-1. Thus, the Board agreed that the
      merits of the agency’s removal action must be addressed in the separately
      docketed chapter 43 removal appeal. 4




      3
        The Board distinguishes alleged involuntary retirements in the RIF context that can
      result in discontinued service annuities from alleged involuntary decisions to retire
      made under duress, coercion, and misrepresentation by the agency. Evidence and
      argument that a presumably voluntary retirement was the product of agency coercion,
      misrepresentation, or duress is relevant to proof that the retirement was actually an
      adverse action (removal) that is directly appealable to the Board. See Taylor v. U.S.
      Postal Service, 73 M.S.P.R. 67, 71, aff’d, 121 F.3d 727 (Fed. Cir. 1997) (Table).
      4
        The appellant’s appeal of the merits of the removal raised in the EEO complaint is
      now ripe for consideration as more than 120 days have passed since the filing of his
      formal complaint. See 5 C.F.R. § 1201.154(b)(1). Even though the appellant asserts in
      his petition for review that he was improperly removed for unacceptable performance,
      he has not indicated that he wishes to pursue his chapter 43 removal appeal before the
      Board or that the agency has issued its final decision on his discrimination complaint.
      Thus, if the appellant wishes to pursue his removal appeal further and have the Board
      address the merits of the agency’s action, he must refile his appeal docketed as Baka v.
      Department of Justice, MSPB Docket No. SF-0432-15-0435-I-1, with the Board’s
      Western Regional Office no later than within 30 days of receiving the agency’s final
      decision. See 5 C.F.R. § 1201.154(b)(1).
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                          United States Court of Appeals
                              for the Federal Circuit
                            717 Madison Place, N.W.
                             Washington, DC 20439

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).
      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      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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono        for    information   regarding   pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.                                                                          The
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Merit Systems 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.
