UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL GIBBS,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

DC-3330-12-0721-I-2

DATE: September 4, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL∗

Michael Gibbs, Haymarket, Virginia, pro se.

Kerry E. Creighton, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) 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 

 ∗ A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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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 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, and based on the following points and authorities, 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a Department of Homeland Security employee, and a 

“service-wounded/disabled ‘decorated’ US Veteran,” filed a Board appeal, 

alleging that he had applied for more than ten vacancy announcements with the 

agency but did not have an interview despite his qualifications. Gibbs v. 

Department of the Interior, MSPB Docket No. DC-3330-12-0721-I-1 (I-1), Initial 

Appeal File (IAF), Tab 1 at 6. The appellant further alleged that he was 

“blocked” from these positions because he represented his wife (an agency 

employee) in various matters against the agency, and he asserted several 

affirmative defenses. Id. at 5-8. The appeal was dismissed without prejudice and 

later refiled. I-1, IAF, Tab 14; Gibbs v. Department of the Interior, MSPB 

Docket No. DC-3330-12-0721-I-2 (I-2), IAF, Tab 1. The appellant waived his 

right to a hearing. See I-2, IAF, Tab 12. 

¶3 The administrative judge dismissed the appeal for lack of jurisdiction. I-2, 

IAF, Tab 23, Initial Decision (ID). In pertinent part, the administrative judge 
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found that the appellant did not prove that he exhausted his administrative 

remedies with the Department of Labor (DOL). ID at 4-6. The appellant filed a 

petition for review, the agency filed a response, and the appellant filed a reply. 

Petition for Review (PFR) File, Tabs 2, 4-5. On petition for review, the appellant 

states that he “understands” the administrative judge’s decision regarding the 

exhaustion requirement. PFR File, Tab 2 at 5. He alleges, however, that the 

administrative judge did not address the Senior Executive Service (SES) 

positions, such as Chief of National Business Center, Director of Budget, and 

other positions that “are not eligible for [Uniformed Services Employment and 

Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333) 

(USERRA)] or DOL consideration.” Id. In his reply brief, he appears to assert 

that the nonselections were due to his military status and/or his status as a 

whistleblower. See PFR File, Tab 5 at 4-5.

¶4 The Board’s jurisdiction is not plenary; it is limited to those matters over 

which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit 

Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). Generally, a 

nonselection is not an action directly appealable to the Board, but the Board may 

have jurisdiction over a nonselection under either USERRA, VEOA, or as a claim 

of reprisal for whistleblowing activity in an individual right of action appeal. 

Dale v. Department of Veterans Affairs, 102 M.S.P.R. 646, ¶ 7 (2006); Wooten v. 

Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 8 n.* (2004). 

¶5 In order to satisfy his jurisdictional burden in a VEOA appeal, the appellant 

must show that he exhausted his remedy with DOL. 5 U.S.C. § 3330a; see Lazaro 

v. Department of Veterans Affairs, 666 F.3d 1316, 1319 (Fed. Cir. 2012); Hillman 

v. Tennessee Valley Authority, 95 M.S.P.R. 162, ¶ 9 (2003). We discern no error 

with the administrative judge’s decision to dismiss the appeal for lack of 

jurisdiction based on the appellant’s failure to show that he exhausted his 

administrative remedy with DOL. The appellant does not appear to challenge the 
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administrative judge’s analysis of the exhaustion issue, and we affirm the initial 

decision in this regard. 

¶6 Regarding the appellant’s contention that the administrative judge failed to 

address certain SES positions for which he had applied, and his concomitant 

assertion that the agency’s decision not to select him for various positions was 

due to his military status and/or his whistleblower status, we forward these claims 

to the Washington Regional Office for docketing as a new appeal. We take no 

position as to whether the Board has jurisdiction over these claims. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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 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 United States 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 United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information is available at the court's website, www.cafc.uscourts.gov. 
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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.

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

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The 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.

______________________________

William D. Spencer

Clerk of the Board