UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION 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### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Wayne Seda , Aberdeen, Maryland, pro se. Anastasiya Sidorova , Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Ch airman Raymond A. Limon, Member

FINAL ORDER ¶1 The appellant has filed a petition for r eview 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 O pportunities 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 peti tion 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 t hat 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 F ile, 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
find ings 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 dilig ence, 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 T he 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 u nrebutted 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 announc ement 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); J ones 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 F ile, Tab 2 at 4

- 5. The record is insufficiently developed for such a finding, which , in any event, is unnecessary to dispose of this appea l. 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 RIGHTS 2 The initial decision, as supplemented by this Final Order, consti tutes 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 fol lowing summary of available appeal rights, the Meri t 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 w hich 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 appli cable 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 part icular forum is the appropriate one to review your case, you
sho uld 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 w ith 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. 2043 9 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. The5

Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) J udicial 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 d iscrimination. 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 calend ar 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 an d 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 b elow: 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 file6

with the EEOC no later than 30 c alendar 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 Washi ngton, 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 5SW 12G 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 chal lenge 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 e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The 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 cou rt 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 f or 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 “Gu ide 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