N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

VICTORIA MILLER, Petitioner,

v.

MERIT SYSTEMS PROTEC TION BOARD, Respondent.

______________________

2014

- 3132

______________________

Petition for review of the Merit Systems Protection
Board in No. AT3330130715 -I- 1.

______________________

Decided: November 12, 2014

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V ICTORIA M ILLER , of Atmore, Alabama, pro se.

L INDSEY S CHRECKENGOST

, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, for respondent. With her on the brief

was B RYAN G. P OLISUK , General Counsel.

______________________

Before P R OST

, Chief Judge, M AYER and L OURIE

, Circuit Judges.MILLER v. MSPB 2

P ER C URIAM

. Ms. Victoria Miller, petitioner, appeals from a dec ision of the Merit Systems Protection Board (“MSPB” or “Board”), Miller v. U.S. Postal Serv. , No. AT 3330130715 -I1 (M .S.P.B . May 15, 2014), dismissing her appeal for lack of jurisdiction. Because Ms. Miller failed to establish that the MSPB had jurisdiction over her appeal, in accordance
with 5 U.S.C. § 3330a(a)(2)(A), we affirm

.
B ACKGROUND

The following facts are not in disp ute. Ms. Miller was employed by the United States Postal Service (“USPS”) as a Transitional Carrier. On or about February 2013, Ms. Miller applied for, and was subsequently not hired for, five different City Carrier Assistant positions. Ms. Miller

argue s that the USPS did not hire her because of a “Pas sover.” On March 11, 2013, Ms. Miller received a letter from the USPS notifying her that the USPS had “submi tted a request to the Office of Personnel Management (“ OPM ”) for authorization to ‘Passover’ [Ms. Miller] as a compensable veteran and hire a non

- preference eligible as a City Carrier Assistant.” R esp’t App. 22 . The letter additionally explains that Ms. Miller was being passed over because of her prior performance, including her failure to deliver mail on her assigned route.

On June 27, 2013

, Ms. Miller filed an appeal with the MSPB seeking review of the USPS’s failure to hire her. For the purpose of determining whether the Board had jurisdiction, on July 11, 2013, the Administrative Judge
ordered M s. Miller to provide “the date [she] believe[d] the agency violated [her] veterans’ preference rights, the date [she] filed a complaint with the Secretary of Labor, and the date [she] received written notice, if any, from the Secretary.” Resp’t App. 36. The Administrative Judge ordered Ms. Miller to respond in twelve calendar days. Ms. Miller failed to respond.MILLER v. MSPB 3

On August 14, 2013, the Administrative Judge issued its Initial Decision, dismissing Ms. Miller’s appeal for lack of jurisdiction. The Administr ative Judge found that Ms. Miller had been put on notice that she needed to establish that the Board had jurisdiction over her claim, but that she had failed to provide any such evidence. Specifically, the Administrative Judge found that Ms. Miller had

pr ovided no evidence that she had exhausted her rem edies with the Department of Labor.

On May 15, 2014, the Board issued a nonprecedential
Final Order den ying Ms. Miller’s Petition for R eview. The
Board found that Ms. Miller had failed to submit a r espons e to the Administrative Judge’s jurisdictional order
and thus failed to demonstrate exhaustion of her admini strative remedy.

D ISCUSSION

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Per 5 U.S.C. § 7703(c), the c ourt will only set aside agency actions, findings, or conclusions if the c ourt determines them to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence

. . . . ” See Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986).

For MSPB cases, the petitioner bears the burden of establishing error in the agency’s decision. Here, that
would mean that Ms. Miller bears the burden of demo nstrating that the MSPB did have jurisdiction over her

case.
For the MSPB to have jurisdiction, the petitioner must first exhaust her administrative remedies by filing a complaint with the Secretary of Labor within sixty da ys of the alleged violation. 5 U.S.C. § 3330a(a)(2)(A). Then, if the Secretary of L abor is unable to resolve the complaintMILLER v. MSPB 4

within sixty days, or within fifteen days of the petitioner receiving written notification from the Department of
Labor that it can not resolve the complaint, the complai nant may appeal to the MSPB. Id

. § 3330 a (d)(1).

The record is devoid of any evidence that Ms. Miller filed a complaint with the Secretary of Labor, nor does
Ms. Miller now claim that she did file such a letter. “A petitioner who ignores an order of the Administrative Judge does so at his or her peril. Litigants before the Board . . . are obligated to respect the Board, its proc edures, including deadlines, and the orders of the Board’s judges.” White v. Dep’ t of Ve terans Affairs , 213 F.3d 1381, 1385 (Fed. Cir. 2000) (quoting Mendoza v. Merit Sys. Prot

. Bd. , 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc) (ellipsi s in original) . As Ms. Miller did not provide evidence that she exhausted her administrative remedies, we h old that the Board does not have jurisdiction over her claim.

Accordingly, we conclude that the Board did not abuse its discretion in this case and properly dismissed Ms. Miller’s claim. That dismissal is hereby affirmed.

AFFIRMED

C OSTS

Each party shall bear its own costs.