UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEPHEN M. DAMBRA,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

DA-3330-21-0393-I-1

DATE: August 1, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lawrence George Widem, Esquire, West Hartford, Connecticut, for the 

appellant.

Tonya Savage, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal 

for lack of jurisdiction. Generally, we grant petitions such as this one only in the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

following circumstances: the initial decision contains erroneous 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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant is a preference-eligible employee with the agency’s Indian 

Health Service (IHS). Initial Appeal File (IAF), Tab 1 at 1. In August 2021, the 

appellant filed three separate applications for three different, higher-graded 

positions in the IHS. Id. at 7. The appellant was not selected for any of these 

positions. The agency’s explanation in each case was that “[b]y law, Indian 

Preference candidates are entitled to consideration for Federal employment 

before other applicants. There were sufficient Indian Preference candidates for 

this vacancy; therefore, your application was not considered.” Id. 

¶3 On August 31, 2021, the appellant filed a Board appeal, arguing that the 

agency violated his veterans’ preference rights in connection with these 

nonselections. Id. at 3, 5. He indicated on his appeal form that he had not filed a 

complaint with the Department of Labor (DOL) concerning this matter. Id. at 4. 

The administrative judge issued an order, notifying the appellant of the standard 

for establishing jurisdiction over a VEOA appeal, including the requirement that 
3

the appellant first exhaust his administrative remedy with DOL. IAF, Tab 3 

at 2-6. She ordered the parties to file evidence and argument on the issue. Id.

at 6-7. 

¶4 On September 16, 2021, the appellant responded by filing a copy of a claim 

receipt from DOL, which indicated he had filed a veterans’ preference complaint 

earlier that same day.2 IAF, Tab 4 at 4. The administrative judge then issued an 

order stating that “[t]he appellant has not submitted any evidence showing that he 

has filed a DOL complaint regarding the non-selections at issue in this appeal 

and, if he has, that DOL has closed his complaint or that 61 days have passed 

since he filed his DOL complaint.” IAF, Tab 5 at 1. She ordered the appellant to 

show cause why the appeal should not be dismissed for lack of jurisdiction. Id. at 

1-2. The appellant did not respond to the administrative judge’s order. The 

agency responded with a motion to dismiss for failure to satisfy the exhaustion 

requirement. IAF, Tab 7. After the record on jurisdiction closed, the 

administrative judge issued an initial decision dismissing the appeal for lack of 

jurisdiction on that basis. IAF, Tab 8, Initial Decision (ID). 

¶5 The appellant has filed a petition for review, contesting the administrative 

judge’s jurisdictional analysis. Petition for Review (PFR) File, Tab 2. The 

agency has responded to the petition for review, and the appellant has filed a 

reply to the agency’s response. PFR File, Tabs 4-5.

 

2

The appellant also filed a copy of the last page of an undated Office of Special 

Counsel (OSC) complaint, the contents of which are not contained in the record. IAF, 

Tab 4 at 5. The administrative judge informed the appellant that, if he wished to raise 

an additional claim in connection with his OSC complaint, he needed to specify the 

nature of that claim. IAF, Tab 5 at 2. The appellant has not done so; none of his 

subsequent pleadings address this OSC complaint, either as to its contents or his reason 

for submitting evidence of it for the record. We therefore decline to address the matter 

any further. 
4

ANALYSIS

¶6 As applicable here, to establish Board jurisdiction over a VEOA appeal, an 

appellant must (1) prove by preponderant evidence that he exhausted his remedy 

with DOL, and (2) make nonfrivolous allegations that: (i) he is a preference 

eligible within the meaning of VEOA, (ii) the action at issue took place on or 

after the date that VEOA was enacted, and (iii) the agency violated his rights 

under a statute or regulation relating to veterans’ preference. 5 U.S.C. 

§ 3330a(a), (d); Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1319 

(Fed. Cir. 2012); Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, 

¶ 13 (2012); 5 C.F.R. § 1201.57(a)(2), (b)-(c).

¶7 In this case, the administrative judge found that the appellant failed to prove 

that he exhausted his administrative remedy. We agree. 3 The first step of the 

exhaustion process is to file a complaint with DOL containing a summary of the 

allegations that form the basis of the complaint. 5 U.S.C. § 3330a(a)(2)(B); 

Wible v. Department of the Army, 120 M.S.P.R. 333, ¶ 10 (2013). After filing 

that complaint, an appellant may fulfill his exhaustion obligation by one of two 

means. The first occurs when DOL’s investigation into the complaint does not 

result in the resolution of the complaint, and DOL notifies the complainant, in 

writing, of the results of its investigation. 5 U.S.C. § 3330a(c)(2); Styslinger v. 

Department of the Army, 105 M.S.P.R. 223, ¶ 15 (2007). The second occurs 

when DOL is unable to resolve a complaint within 60 days after the date on which 

it was filed. 5 U.S.C. § 3330a(d)(1); Styslinger, 105 M.S.P.R. 223, ¶ 15. After 

60 days have passed without a resolution of the complaint, the complainan t may 

elect to appeal the alleged violation to the Board, but he must first notify DOL of 

his intention to file a Board appeal. 5 U.S.C. § 3330a(d); Styslinger, 

105 M.S.P.R. 223, ¶¶ 15-19; 5 C.F.R. § 1208.21(a).

 

3

The administrative judge did not address the remaining elements of the appellant’s 

jurisdictional burden, and we need not do so here.
5

¶8 Here, the administrative judge found that the appellant failed to satisfy the 

exhaustion requirement because fewer than 61 days had passed since he filed his 

complaint, and he provided no evidence that DOL had closed his complaint. ID 

at 3. On petition for review, the appellant argues, through his attorney, that the 

exhaustion process is now complete and the appeal is ripe for adjudication 

because DOL has provided him written notice that it was unable to resolve his 

complaint and has closed its investigation. PFR File, Tab 2 at 7-10, Tab 5 at 4. 

¶9 The Board will adjudicate a VEOA appeal that was not ripe when filed but 

becomes ripe during the pendency of the appeal. See Bent v. Department of State, 

123 M.S.P.R. 304, ¶ 6 (2016); Wooten v. Department of Veterans Affairs, 

96 M.S.P.R. 671, ¶ 9 (2004). However, the record in this case still lacks evidence 

upon which the Board could base a finding that the process before DOL has been 

exhausted. The appellant has filed neither a copy of the alleged DOL notification 

nor a sworn statement that he received such notification. The statements of a 

party’s representative in a pleading do not constitute evidence. Pupis v. U.S. 

Postal Service, 105 M.S.P.R. 1, ¶ 5 (2007).

¶10 Acknowledging that the record does not contain a copy of a DOL closeout 

notification, the appellant argues variously that the Board should take official

notice of the notification, the administrative judge should have obtained a copy of 

the notification from DOL, and the agency should have obtained a copy of the 

notification from DOL. PFR File, Tab 2 at 7, 10-11, Tab 5 at 6-7. Under 

5 C.F.R. § 1201.64, the Board may take official notice of matters of common 

knowledge or matters that can be verified. However, DOL’s investigation of the 

appellant’s complaint is not a matter of common knowledge, and the Board does 

not have ready access to DOL’s investigatory records such that it can verify the 

disposition of the appellant’s complaint. Furthermore, the burden of proof on 

jurisdiction belongs to the appellant. 5 C.F.R. § 1201.57(b)-(c). It is not the 

responsibility of the administrative judge or the respondent agency to provide 

evidence of jurisdiction on the appellant’s behalf, particularly in cases like this 
6

one in which the appellant is in a better position than the agency to provide the 

relevant evidence. Cf. Ellis v. Department of the Navy, 76 M.S.P.R. 102, 107 

(1994) (considering the fact that pertinent evidence regarding the jurisdictional 

issue was likely to be in possession and control of the agency as favoring a 

finding of Board jurisdiction). For these reasons, we agree with the 

administrative judge that the appellant has not submitted any evidence to show 

that the exhaustion process is complete under the first method described in 

Styslinger, 105 M.S.P.R. 223, ¶ 15.

¶11 Nor has the appellant submitted any evidence to show that he exhausted his 

administrative remedy with respect to the second method described in Styslinger, 

105 M.S.P.R. 223, ¶ 15. Although more than 60 days have now passed since the 

appellant filed his complaint with DOL, he has not provided evidence or even 

alleged that he notified DOL of his intention to file a Board appeal. See Becker v. 

Department of Veterans Affairs, 114 M.S.P.R. 29, ¶¶ 7-8 (2010).

¶12 The administrative judge further found that, even if the appellant had 

completed the exhaustion process, he still failed to establish jurisdiction because 

he submitted no evidence to show that he completed it with respect to the specific 

nonselections at issue in this appeal. ID at 3. The appellant does not contest this 

finding on review, and we agree with the administrative judge’s assessment. 

Proof of exhaustion requires, at a minimum, a showing that the DOL complaint 

concerns the same agency action or decision at issue in the Board appeal. See 

White v. U.S. Postal Service, 114 M.S.P.R. 574, ¶¶ 7-9 (2010).

¶13 The appellant argues for the first time on review that the agency violated 

his rights under the Fifth Amendment when it applied Indian preference to the 

position at issue. PFR File, Tab 2 at 6-7. However, an alleged violation of 

constitutional rights, standing alone, does not confer Board jurisdiction. Moore v. 

Department of State, 15 M.S.P.R. 488, 489-90 (1983), aff’d, 765 F.2d 159 (Fed. 

Cir. 1985) (Table).
7

¶14 The appellant also argues that the exhaustion requirement of 5 U.S.C. 

§ 3330a(d) is a prudential rule that does not limit the Board’s subject matter 

jurisdiction. PFR File, Tab 2 at 8-9, Tab 5 at 5. The Board, however, has already 

addressed this issue in adopting its current regulations at 5 C.F.R. § 1201.57, and 

we decline to revisit it in the context of the instant appeal. See Practices & 

Procedures, 80 Fed. Reg. 4489, 4492 (Jan. 28, 2015) (disagreeing with a 

commenter’s suggestion that the Board treat the exhaustion requirement as 

nonjurisdictional in VEOA and individual right of action appeals). 

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 
9

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 
10

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expir ed on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of App eals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
11

Additional information about the U.S. 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, 10, 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board