UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ULRIC JACKSON,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-3443-16-0082-I-1

DATE: August 17, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Ulric Jackson, Oceanside, California, pro se.

Erica Marie Briggs, Camp Pendleton, California, for the agency.

Patricia Welling, San Diego, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

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

as this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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). 

¶2 The appellant filed an appeal with the Board challenging a June 5, 2015 

letter of reprimand that he received from the agency, and he raised claims of 

equal employment opportunity (EEO) discrimination, harassment, and prohibited 

personnel practices. Initial Appeal File (IAF), Tabs 1, 4. The appellant also 

alleged that his manager was retaliating against him because he blamed the 

appellant for having to apologize to some military personnel who told their 

supervisors that they overheard the appellant’s manager saying bad things about 

them in a meeting. IAF, Tab 1 at 2. The appellant provided documentation to

support his appeal. 2

 Id. at 5-67. 

¶3 The administrative judge issued an acknowledgment order informing the 

appellant that the Board generally lacks jurisdiction over an appeal of a 

reprimand letter. IAF, Tab 2 at 2. The administrative judge further informed the 

appellant that, absent an appealable action otherwise within the Board’s appellate 

jurisdiction, the Board may have no jurisdiction to consider his claims that the 

agency subjected him to unlawful discrimination or retaliation. Id. The 

administrative judge informed the appellant that he had the burden of proving that 

 2 Before the appellant filed his appeal with the Board, he challenged his reprimand 

through the union grievance process without success. IAF, Tab 1 at 55-57, 59.
3

the challenged action falls within the class of actions generally appealable to the 

Board listed at 5 C.F.R. § 1201.3(a), or that the Board has jurisdiction over his 

appeal as an individual right of action (IRA) appeal or under the Uniformed 

Services Employment and Reemployment Rights Act of 1994 (codified 

at 38 U.S.C. §§ 4301-4333) (USERRA). IAF, Tab 2 at 5. The administrative 

judge informed the appellant of the criteria he was required to prove to establish 

jurisdiction over an IRA appeal or under USERRA, and he ordered the appellant 

to submit evidence and argument proving that the Board has jurisdiction over his 

appeal. Id. at 3-5. The appellant responded to the order, and the agency filed a 

motion to dismiss the appeal for lack of jurisdiction. IAF, Tabs 4, 6. 

¶4 Based on the written record, the administrative judge dismissed the appeal 

for lack of jurisdiction. 3

 IAF, Tab 7, Initial Decision (ID). The administrative 

judge found that the appellant failed to make a nonfrivolous allegation of 

jurisdiction over his appeal. ID at 7. The administrative judge further found that 

the appellant failed to show, by preponderant evidence, that his June 5, 2015 

letter of reprimand or his claims of EEO discrimination, retaliation, harassment, 

or prohibited personnel practices, were otherwise appealable to the Board. Id. 

The administrative judge also found no evidence that the appellant exhausted his 

administrative remedies before OSC and noted that the appellant failed to address 

the exhaustion requirements for an IRA appeal in his response to the 

acknowledgement order. ID at 8. The administrative judge further found that, 

although the appellant is a veteran, he did not establish jurisdiction over his 

appeal under USERRA because he failed to allege that the agency’s actions were 

related to his uniformed service or because of an application or obligation to 

perform such service. ID at 9. 

¶5 The appellant filed a petition for review arguing the merits of his appeal 

and reiterating his claims of prohibited personnel practices, discrimination, 

 3 The appellant did not request a hearing. 
4

preferential treatment, and harassment by his manager.

4

 PFR File, Tab 1. The 

appellant expresses frustration with his inability to vindicate his “Weingarten, 

employee and fundamental human rights.” Id. at 1. The appellant also expresses 

his dissatisfaction with the union grievance process and states that he filed an 

untimely EEO complaint after his grievance was unsuccessful. Id. at 1-2. The

appellant further indicates that he filed a complaint with the Office of Special 

Counsel (OSC) and that he was informed that OSC was closing his case; but he

failed to submit a copy of his OSC complaint, the file closure letter, or any of his 

correspondence with OSC. Id. at 2. The agency responded in opposition to the 

petition for review. PFR File, Tab 3.

¶6 We find that the appellant’s arguments on review fail to identify any error 

in the administrative judge’s finding that the Board lacks jurisdiction over his 

appeal. We therefore deny his petition for review. We note that on appeal the

appellant described one of the alleged prohibited personnel practices as the 

willful obstruction of “employee rights to compete for employment.” IAF, Tab 3 

at 1. The appellant also argued on review that his manager told the appellant and 

his coworkers that they cannot “go from a WG 6/7 to a GS-9 position,” but a 

nonveteran received a GS-9 position “as soon as she got her degree,” and that the 

appellant’s manager knew that he had “the experience, veteran[s’] preference, 

skills and education to advance to any of the jobs.” Id. at 2-3. Although unclear, 

the appellant may be attempting to claim that the agency denied his right to 

compete under the Veterans Employment Opportunities Act of 1998 (VEOA). 

¶7 To establish Board jurisdiction over a “right to compete” appeal 

under 5 U.S.C. § 3330a(a)(1)(B), an appellant must: (1) show that he exhausted 

his remedy with the Department of Labor; and (2) make nonfrivolous allegations 

that (i) he is a veteran within the meaning of 5 U.S.C. § 3304(f)(1), (ii) the action 

at issue took place on or after the enactment date of the Veterans’ Benefits 

 4 The appellant also raises new allegations that his manager was sleeping on duty and he 

had to wake him up. PFR File, Tab 1 at 2.
5

Improvement Act of 2004, and (iii) the agency, in violation of 5 U.S.C. 

§ 3304(f)(1), denied him the opportunity to compete under merit promotion 

procedures for a vacant position for which the agency accepted applications from 

individuals outside its own workforce. Becker v. Department of Veterans 

Affairs, 115 M.S.P.R. 409, ¶ 5 (2010). If the appellant would like to file a new

appeal with the Board alleging that the agency denied his right to compete under 

VEOA, then he first must exhaust his administrative remedies with the 

Department of Labor.

5

 See 5 C.F.R. § 1208.21. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

 5 The Board’s regulations at 5 C.F.R. §§ 1208.21-23 explain the VEOA exhaustion 

requirement, the required content of a VEOA appeal, and the time limitations applicable 

to filing a VEOA appeal with the Board. 
6

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

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 U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about 

other 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.

If you are interested in securing pro bono representation for your 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
7

Merit Systems 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.

______________________________

Jennifer Everling

Acting Clerk of the Board