                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT BOONE,                                   DOCKET NUMBER
                  Appellant,                         CH-3443-16-0057-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: May 4, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Robert Boone, Belleville, Michigan, pro se.

           Kristi Glavich, Detroit, Michigan, 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
     denied his request for corrective action under the Veterans Employment
     Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
     one only in the following circumstances: the initial decision contains 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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     findings of material fact; the initial decision is based on an erroneous
     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. 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. Because the Board lacks
     jurisdiction over the appellant’s VEOA appeal, we VACATE the initial decision
     and DISMISS the appeal for lack of jurisdiction.

                                      BACKGROUND
¶2         In April 2014, the appellant applied and was not selected, for a permanent
     Veterans Service Representative position. Initial Appeal File (IAF), Tab 1 at 3.
     In July 2014, the appellant met with the agency’s Human Resources Manager,
     M.B., to discuss his nonselection.     IAF, Tab 6 at 4.   During this meeting, the
     appellant alleges that M.B. informed him that there was no way to challenge his
     nonselection. Id. On October 29, 2015, the appellant contacted the Department
     of Labor (DOL) by telephone, and was told by a DOL representative that his
     VEOA complaint would be denied because it was not timely filed within the
     60-day statutory deadline.       Id.    According to the appellant, the DOL
     representative advised him that he could file a Board appeal. Id.
¶3         The appellant filed the instant appeal challenging his nonselection. IAF,
     Tab 1. The administrative judge issued orders directing the appellant to address
     the issues of timeliness and jurisdiction, IAF, Tabs 3-4, and the appellant filed a
     response, IAF, Tab 6. The agency moved to dismiss the appeal. IAF, Tab 9. The
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     administrative judge issued an initial decision denying the appellant’s request for
     corrective action under VEOA.           IAF, Tab 10, Initial Decision (ID).           The
     administrative judge found that the appellant had established jurisdiction over his
     appeal. ID at 7-8. However, the administrative judge found that the appellant
     was not entitled to corrective action because he failed to show that he filed his
     VEOA complaint with the DOL within the 60-day statutory deadline, or that he
     satisfied the requirements for equitable tolling. ID at 8-11. The appellant has
     filed a timely petition for review of the initial decision. Petition for Review File,
     Tab 1. The agency has filed a response, PFR File, Tab 3, to which the appellant
     has replied, PFR File, Tab 4. 2

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         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). Although the Board generally lacks
     jurisdiction over nonselections, an appellant may appeal his nonselection under
     VEOA. Gingery v. Department of the Treasury, 113 M.S.P.R. 157, ¶ 13 (2009),
     aff’d, 403 F. App’x 498 (Fed Cir. 2010). To establish Board jurisdiction over a
     veterans’ preference appeal brought pursuant to 5 U.S.C. § 3330a(a)(1)(A), an
     appellant must: (1) show that he exhausted his remedy with DOL; and (2) make


     2
       After the record in this matter closed, the appellant filed a motion titled “Petition for
     Enforcement.” PFR File, Tab 5. In his motion, the appellant requests that the Board
     “enforce the Administrative Judge’s Acknowledgment Order dated 10/30/2015 . . .” and
     he lists specific materials which he believes the agency should have provided. Id.
     Under 5 C.F.R. § 1201.182(a), a party may “petition the Board for enforcement of a
     final decision or order issued under the Board’s appellate jurisdiction, or for
     enforcement of the terms of a settlement agreement that has been entered into the record
     for the purpose of enforcement in an order or decision under the Board’s appellate
     jurisdiction.”   As the appellant’s motion appears to seek enforcement of the
     administrative judge’s acknowledgment order or to compel discovery, his motion is not
     a proper petition for enforcement seeking enforcement of a final decision or order.
     Thus, we do not consider his motion on review and we do not forward his motion to the
     region for docketing as a petition for enforcement.
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     nonfrivolous allegations that (i) he is a preference eligible within the meaning of
     VEOA, (ii) the action(s) at issue took place on or after the 1998 enactment date of
     VEOA, and (iii) the agency violated his rights under a statute or regulation
     relating    to   veterans’   preference.   Lazaro   v.   Department    of   Veterans
     Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012).
¶5         For an appellant to meet VEOA’s requirement that he exhaust his remedy
     with DOL, he must establish that: (1) he filed a complaint with the Secretary of
     Labor, and (2) the Secretary of Labor was unable to resolve the complaint within
     60 days or has issued a written notification that the Secretary’s efforts have not
     resulted in resolution of the complaint. Goldberg v. Department of Homeland
     Security, 99 M.S.P.R. 660, ¶ 8 (2005). The administrative judge found that the
     appellant’s oral conversation with a DOL representative in October 2015,
     satisfied the statutory requirement that he file a complaint with the Secretary of
     Labor.     ID at 7-8.    However, the statute explicitly requires that a VEOA
     complaint “shall be in writing.” 5 U.S.C. § 3330a(a)(2)(A)(B); see Mitchell v.
     Department of Commerce, 106 M.S.P.R. 648, ¶ 9 (2007), aff’d, 276 F. App’x
     1007 (Fed. Cir. 2008), overruled on other grounds by Garcia v. Department of
     Agriculture, 110 M.S.P.R. 371, ¶¶ 9-10 (2009).       The appellant does not allege
     that he filed anything with DOL in writing that could satisfy the statutory
     requirement for a written complaint. Therefore, we vacate the initial decision and
     dismiss the appeal for lack of jurisdiction because the appellant failed to establish
     that he exhausted his remedy with DOL.

                       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:
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                           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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012).     You may read this law and other sections of the U.S. 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD:     ______________________________
                   William D. Spencer
                   Clerk of the Board
Washington, D.C.
