UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY WAYNE SEDA,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

DC-3330-17-0332-I-1

DATE: May 9, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Anthony Wayne Seda, Aberdeen, Maryland, pro se.

Anastasiya Sidorova, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review and the agency has filed a cross 

petition for review of the initial decision, which denied the appellant’s request for 

corrective action under the Veterans Employment Opportunities Act of 1998. At 

issue in this appeal is the appellant’s nonselection for an Administrative Program 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Specialist position. Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 1. 

The administrative judge denied corrective action on the basis that the appellant 

was not qualified for the position. ID at 9-10. On petition for review, the 

appellant argues that his prior experience was sufficient to meet the requirements 

of the position to which he applied. Petition for Review (PFR) File, Tab 1 at 1; 

ID at 8-9. He also challenges the administrative judge’s conclusion that the 

agency actually considered his application. PFR File, Tab 1 at 1-2; ID at 9-10. 

In its cross petition for review, the agency seeks a technical correction, arguing

that the initial appointment for the position at issue was an excepted-service 

appointment, with potential conversion to the competitive service after up to 

2 years. PFR File, Tab 2 at 4-5; ID at 2. Generally, we grant petitions such as 

these only in the following circumstances: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

interpretation of statute or 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. 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 neither party 

has established any basis under section 1201.115 for granting the petition or cross 

petition for review. Therefore, we DENY the petition for review and the cross 

petition for review. Except as expressly MODIFIED to deny the appellant’s

request for corrective action on the basis that the agency did not fill the position 

at issue and to VACATE the finding that the Administrative Program Specialist 

position was an excepted-service position, we AFFIRM the initial decision. 

¶2 The agency submitted a sworn declaration from the hiring manager

establishing that it did not fill the Administrative Program Specialist position. 
3

IAF, Tab 5 at 23-25; see Truitt v. Department of the Navy, 45 M.S.P.R. 344, 347 

(1990) (finding that unrebutted sworn statements are competent evidence of the 

matters asserted therein). Because the agency did not fill the position, we find it 

unnecessary to review the administrative judge’s findings regarding the 

appellant’s qualifications. Instead, we deny corrective action because an 

agency’s action of canceling a vacancy announcement does not violate veterans’

preference laws. Scharein v. Department of the Army, 91 M.S.P.R. 329, ¶ 10 

(2002), aff’d per curiam, No. 02-3270, 2008 WL 5753074 (Fed. Cir. Jan. 10,

2008); Jones v. Department of Health and Human Services, 119 M.S.P.R. 355, 

¶¶ 20-21, aff’d, 554 F. App’x 976 (Fed. Cir. 2013). We decline to determine the 

nature of the appointment issue, as requested by the agency in its cross petition 

for review. PFR File, Tab 2 at 4-5. The record is insufficiently developed for 

such a finding, which, in any event, is unnecessary to dispose of this appeal. To 

the extent that the administrative judge found that the Administrative Program 

Specialist position was an excepted-service position, we vacate that finding. 

NOTICE OF APPEAL RIGHTS2

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation an d 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
4

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, and 11. 

If you are interested in securing pro bono representation for an 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 
5

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 
6

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.3The court of appeals must receive your petition for 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
7

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

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, 10, and 11. 

If you are interested in securing pro bono representation for an 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 

Board neither endorses the services provided by any attorney nor warr ants that 

any attorney will accept representation in a given case. 

Contact information for the 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.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board