NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

VICTORIA MILLER,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2014-3132

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. AT3330130715-I-1.

______________________ 

Decided: November 12, 2014

______________________ 

VICTORIA MILLER, of Atmore, Alabama, pro se. 

LINDSEY SCHRECKENGOST, Attorney, Office of the 

General Counsel, Merit Systems Protection Board, of 

Washington, DC, for respondent. With her on the brief 

was BRYAN G. POLISUK, General Counsel. 

______________________ 

Before PROST, Chief Judge, MAYER and LOURIE, Circuit 

Judges.
2 MILLER v. MSPB

PER CURIAM. 

Ms. Victoria Miller, petitioner, appeals from a decision of the Merit Systems Protection Board (“MSPB” or 

“Board”), Miller v. U.S. Postal Serv., No. AT3330130715-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. 

BACKGROUND

The following facts are not in dispute. 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 

argues that the USPS did not hire her because of a “Passover.” On March 11, 2013, Ms. Miller received a letter 

from the USPS notifying her that the USPS had “submitted 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.” Resp’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 Ms. 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 Administrative 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 

provided no evidence that she had exhausted her remedies with the Department of Labor. 

On May 15, 2014, the Board issued a nonprecedential 

Final Order denying Ms. Miller’s Petition for Review. The 

Board found that Ms. Miller had failed to submit a response to the Administrative Judge’s jurisdictional order 

and thus failed to demonstrate exhaustion of her administrative remedy. 

DISCUSSION

We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9). Per 5 U.S.C. § 7703(c), the court will only set 

aside agency actions, findings, or conclusions if the court 

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 demonstrating 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 days of 

the alleged violation. 5 U.S.C. § 3330a(a)(2)(A). Then, if 

the Secretary of Labor is unable to resolve the complaint 
4 MILLER v. MSPB

within sixty days, or within fifteen days of the petitioner 

receiving written notification from the Department of 

Labor that it cannot resolve the complaint, the complainant may appeal to the MSPB. Id. § 3330a(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 procedures, including deadlines, and the orders of the Board’s 

judges.” White v. Dep’t of Veterans 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) (ellipsis 

in original). As Ms. Miller did not provide evidence that 

she exhausted her administrative remedies, we hold 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

COSTS

Each party shall bear its own costs.