NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MILO D. BURROUGHS, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent, 

and 

DEPARTMENT OF DEFENSE, 

Intervenor. 

__________________________ 

2011-3021 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. DA3330090583-I-1. 

__________________________ 

Decided: June 13, 2011 

__________________________ 

MILO D. BURROUGHS, Yelm, Washington, pro se. 

JEFFREY A. GAUGER, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief were JAMES M.
BURROUGHS v. MSPB 2

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

VINCENT D. PHILLIPS, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for intervenor. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and STEVEN J.

GILLINGHAM, Assistant Director. 

__________________________ 

Before RADER, Chief Judge, PROST and O’MALLEY, Circuit 

Judges. 

PER CURIAM. 

Appellant Milo Burroughs petitions for review of the 

final decision of the Merit Systems Protection Board 

(“MSPB” or “Board”) dismissing his appeal for lack of 

jurisdiction. Because the Board correctly determined that 

it lacked jurisdiction over Mr. Burroughs’s appeal, we 

affirm. 

BACKGROUND

Mr. Burroughs, an honorably discharged veteran of 

the United States Air Force, applied for a position as an 

Aerospace Engineer with the Department of Defense. 

After reevaluating its needs, the agency determined that 

it did not need an Aerospace Engineer, and it cancelled 

the request for personnel action. Having not been selected for the position, Mr. Burroughs filed a complaint 

with the Department of Labor on April 25, 2009, alleging 

that the agency violated his veterans preference rights by 

not selecting him for the job. The Department of Labor 

did not respond to the complaint. After sixty-one days, 
3 BURROUGHS v. MSPB

Mr. Burroughs appealed his nonselection with the MSPB. 

An administrative judge issued an initial decision denying the nonselection claim on the merits. On review, 

the Board questioned its jurisdiction over Mr. Burroughs’s 

nonselection claim because it was not clear that Mr. 

Burroughs had exhausted his administrative remedy with 

the Department of Labor as required under the Veterans 

Employment Opportunity Act (“VEOA”). Noting that the 

record was not complete, the Board specifically directed 

Mr. Burroughs to submit evidence that he had satisfied 

the exhaustion requirement. The Board explained that 

Mr. Burroughs could satisfy the VEOA requirements by 

submitting evidence that the Department of Labor had 

sent him a written notification of the results of its investigation of the complaint including a notification that it 

was unable to resolve the complaint. Alternatively, he 

could submit evidence that the Department of Labor had 

not resolved the complaint within sixty days, and that he 

had notified the Secretary of Labor of his intention to file 

an appeal with the MSPB. 

Mr. Burroughs responded to the Board’s order by attaching a copy of his April 25, 2009 Department of Labor 

complaint and stating that he had filed his MSPB appeal 

sixty-one days after filing the Department of Labor complaint. This partial response was not sufficient because 

Mr. Burroughs did not satisfy either of the alternatives 

described by the Board. With respect to the first approach, he did not indicate whether the Department of 

Labor had sent him written notification of its resolution of 

his complaint. With respect to the second approach, he 

did not show that he had informed the Secretary of Labor 

of his intention to file an appeal with the MSPB. 
BURROUGHS v. MSPB 4

Given these failures, the MSPB dismissed the appeal 

for lack of jurisdiction, concluding that Mr. Burroughs 

had not exhausted his administrative remedy with the 

Department of Labor. Burroughs v. Dep’t of Defense, 

DA3330090583-I-1 (M.S.P.B. Sept. 21, 2010). Because it 

did not have jurisdiction, the MSPB did not reach the 

merits of the nonselection claim. This appeal followed. 

DISCUSSION

The scope of our review of a Board decision is limited. 

We review the Board’s decision about its jurisdiction 

without deference. Butler v. Soc. Sec. Admin., 331 F.3d 

1368, 1371-72 (Fed. Cir. 2003). 

The MSPB dismissed Mr. Burroughs’s appeal for lack 

of jurisdiction without reaching the merits of his nonselection claim. On appeal to this court, Mr. Burroughs 

argues that the MSPB has jurisdiction over his nonselection claim under both the VEOA and the Veterans Preference Act (“VPA”) itself. 

Mr. Burroughs first argues that he has satisfied the 

VEOA exhaustion requirements because he filed his 

appeal more than sixty days after filing his complaint 

with the Department of Labor. While the record supports 

that the appropriate amount of time had passed before 

Mr. Burroughs filed his appeal, nothing in the record 

supports that he provided the required written notice to 

the Secretary of Labor of his intention to bring an MSPB 

appeal. See 5 U.S.C § 3330a(d)(2). This written notification is important because it lets the Secretary of Labor 

know she should stop investigating the complaint. Mr. 

Burroughs states that he “notified the [Secretary of 

Labor]” on April 25, 2009 of his intention to appeal to the 

Board using “form OBM NO. 1293-0002 designed specifi-
5 BURROUGHS v. MSPB

cally for that purpose.” The form that Mr. Burroughs 

points to, however, is his original complaint. This document does not serve as written notice that he is electing to 

appeal the alleged violation to the MSPB. Because the 

record does not contain evidence that Mr. Burroughs 

notified the Secretary of Labor in writing that he was 

appealing his nonselection to the MSPB, the MSPB 

correctly concluded that he had not satisfied the VEOA 

exhaustion requirements. Accordingly, the MSPB does 

not have jurisdiction over the nonselection claim under 

the VEOA. 

Mr. Burroughs further argues that the VPA provides 

an independent source of jurisdiction for his nonselection 

claim. As this court has already explained in Burroughs 

v. Merit Systems Protection Board, No. 2010-3180 (Fed. 

Cir. Apr. 8, 2011), the MSPB’s authority to entertain 

nonselection claims stems from the VEOA. The VPA does 

not provide an independent source of MSPB jurisdiction 

over Mr. Burroughs’s appeal. 

The Board correctly determined that it lacked jurisdiction over Mr. Burroughs’s appeal. Accordingly, we 

affirm. 

COSTS

Each party shall bear its own costs. 

AFFIRMED