UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DEGERALD R. WILSON,

Appellant,

v.

DEPARTMENT OF STATE,

Agency.

DOCKET NUMBERS

AT-3443-14-0269-I-1

DC-3330-14-0354-I-1

DATE: August 26, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

DeGerald R. Wilson, San Antonio, Texas, pro se.

Elizabeth R. Amory, Esquire, Charleston, South Carolina, for the agency.

Joyce, Anne, Esquire, Washington, 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 petitions for review of two initial decisions, which 

dismissed his appeals for lack of jurisdiction. Generally, we grant petitions such 

as these ones only when: the initial decisions contain erroneous findings of 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

material fact; the initial decisions are based on an erroneous interpretation of 

statute or regulation or the erroneous application of the law to the facts of the 

cases; the judge’s rulings during either the course of the appeals or the initial 

decisions were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the cases; 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 these appeals, 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 petitions for review. Therefore, we DENY the 

petitions for review and AFFIRM the initial decisions, which are now the Board’s 

final decisions. 5 C.F.R. § 1201.113(b). 

¶2 As a preliminary matter, we note that joinder of two or more appeals filed 

by the same appellant is appropriate where doing so would expedite processing of 

the cases and not adversely affect the interests of the parties. Tarr v. Department 

of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R. § 1201.36(a)(2). We 

find that the appellant’s two appeals against the Department of State meet the 

regulatory criteria, and therefore we join them. 2

¶3 On September 19, 2013, the agency posted a vacancy announcement for the 

position of Staff Assistant. Wilson v. Department of State, MSPB Docket No. 

AT-3443-14-0269-I-1 (AT Appeal), Initial Appeal File (IAF), Tab 5 at 15. The 

appellant applied for this position, id. at 80, but was not selected, id. at 7. On 

November 19, 2013, the agency posted a vacancy announcement for the position 

of Customer Service Representative. Wilson v. Department of State, MSPB 

 2 The appellant has one other similar appeal. Wilson v. Department of Education,

MSPB Docket No. DC-3330-14-0298-I-1. Because the respondent in that appeal is a 

different federal agency, we are adjudicating it separately from his two appeals against 

the Department of State.
3

Docket No. DC-3330-14-0354-I-1 (DC Appeal), IAF, Tab 7 at 17. The appellant 

also applied for this position, id. at 24, but was, again, not selected, id. at 10, 75.

¶4 The appellant appealed his nonselection for these two positions to the 

Board. AT Appeal, IAF, Tab 1; DC Appeal, IAF, Tab 1. He alleged that his 

nonselection was the result of prohibited discrimination and that the agency 

violated the law as it relates to veterans’ preference. AT Appeal, IAF, Tab 1 at 5; 

DC Appeal, IAF, Tab 1 at 7. 

¶5 The administrative judges issued jurisdictional orders for each of the 

appellant’s nonselection appeals. AT Appeal, IAF, Tab 6; DC Appeal, IAF, Tab 

3. These orders explained that the appellant had the burden of proving the 

Board’s jurisdiction over his appeals and included instructions for establishing 

jurisdiction over a nonselection under the Veterans Employment Opportunities 

Act (VEOA). AT Appeal, IAF, Tab 6 at 2-6; DC Appeal, IAF, Tab 3 at 2-6. The 

appellant responded to the jurisdictional orders, AT Appeal, IAF, Tab 8; DC 

Appeal, IAF, Tab 6, and the agency submitted motions to dismiss, AT Appeal, 

IAF, Tab 12 at 5-8; DC Appeal, IAF, Tab 7 at 5-8. 

¶6 Without hearings, the administrative judges dismissed both appeals for lack 

of jurisdiction. AT Appeal, IAF, Tab 13, Initial Decision (ID); DC Appeal, IAF, 

Tab 8, ID. The appellant has filed petitions for review. AT Appeal, Petition for 

Review (PFR) File, Tab 1; DC Appeal, PFR File, Tab 1. The agency has filed 

responses, AT Appeal, PFR File, Tab 3; DC Appeal, PFR File, Tab 2, and the 

appellant has replied, AT Appeal, PFR File, Tab 4; DC Appeal, PFR File, Tab 4.

¶7 The Board’s jurisdiction is not plenary; it 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). An agency’s failure 

to select an applicant for a vacant position is generally not appealable to the 
4

Board. Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 

1998). However, an exception exists under VEOA. 3 

¶8 The Board has held that in order to establish jurisdiction over a VEOA 

appeal, an appellant must: (1) show that he exhausted his remedy with the 

Department of Labor (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 enactment date of VEOA; and (iii) the agency violated his 

rights under a statute or regulation relating to veterans’ preference. Alegre v. 

Department of Navy, 118 M.S.P.R. 424, ¶ 12 (2012). 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. Id.; see Graves v. Department of Veterans Affairs, 117 M.S.P.R. 491, 

¶ 8 (2012) (explaining that the complaint to DOL must contain a summary of the 

allegations that form the basis for the complaint). The purpose of this 

requirement is to afford DOL the opportunity to conduct an investigation that 

might lead to corrective action before involving the Board in the case. 

Graves, 117 M.S.P.R. 491, ¶ 8.

¶9 Despite the jurisdictional orders instructing him to prove that he had 

exhausted his remedies with DOL, AT Appeal, IAF, Tab 6 at 5; DC Appeal, IAF, 

Tab 3 at 5, the appellant presented no such evidence and his responses were silent 

 3 We note that in his initial appeals, the appellant checked the box to indicate that he 

was also claiming that the agency’s decision “was the result of prohibited 

discrimination (race, color, religion, sex, national origin, disability, age).” AT Appeal, 

IAF, Tab 1 at 5; DC Appeal, IAF, Tab 1 at 13. However, discrimination claims do not 

provide an independent basis for Board jurisdiction. 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). In 

addition, the Board lacks the authority to adjudicate claims of discrimination in a 

nonselection appeal under VEOA. Ruffin v. Department of the Treasury, 89 M.S.P.R. 

396, ¶ 12 (2001).
5

on the issue other than a vague suggestion in one of his appeals that he submitted 

some sort of complaint to DOL after his initial appeals to the Board, see AT 

Appeal, IAF, Tab 8; DC Appeal, IAF, Tab 6 at 2. Therefore, because the 

appellant failed to provide any evidence that he filed a DOL complaint, the 

administrative judge rightly found that the Board lacked jurisdiction over his 

VEOA claim. See Wible v. Department of Army, 120 M.S.P.R. 333, ¶ 10 (2013) 

(the Board lacks jurisdiction over a VEOA claim if an appellant does not provide 

any evidence that he filed a DOL complaint because evidence of exhaustion with 

DOL is mandated by statute).

¶10 In his petitions for review, the appellant did not present any argument or 

evidence that the administrative judges erred in dismissing his appeals. Instead, 

the appellant vaguely asserts that DOL has been contacted. 4

 AT Appeal, PFR 

File, Tab 1 at 2; DC Appeal, PFR File, Tab 1 at 2. His subsequent replies suggest

he has complaints pending with DOL. AT Appeal, PFR File, Tab 4 at 2; DC 

Appeal, PFR File, Tab 4 at 2.

¶11 The Board’s practice is to adjudicate an appeal that was premature when 

filed but becomes timely while pending before the Board. Wooten v. Department 

of Veterans Affairs, 96 M.S.P.R. 671, ¶ 9 (2004). However, the appellant’s vague 

suggestions that complaints have been initiated with DOL, without any supportive 

evidence, do not establish that his appeals are now ripe. Even if he has initiated 

complaints with DOL, as he seems to suggest, the initiation of a complaint does 

not meet his jurisdictional burden of proving that he exhausted his administrative 

remedies. See Burroughs v. Department of Defense, 114 M.S.P.R. 647, ¶¶ 8-9 

(2010), aff’d, 426 F. App’x 897 (Fed. Cir. 2011) (the mere filing of a complaint 

with DOL is not sufficient to establish Board jurisdiction over a VEOA appeal).

 4 The appellant’s petitions both state, “The Department of Labor Complaint Information 

Form, submitted, by fax, From Texas Workforce Commission, San Antonio, Texas.” 

AT Appeal, PFR File, Tab 1 at 2; DC Appeal, PFR File, Tab 1 at 2.
6

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. 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 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
7

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board