NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ANTHONY WAYNE SEDA,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2015-3221

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0330-14-0719-I-1.

______________________ 

Decided: February 3, 2016

______________________ 

 ANTHONY WAYNE SEDA, Aberdeen, MD, pro se.

 SARA B. REARDEN, Office of the General Counsel, 

Merit Systems Protection Board, Washington, DC, for 

respondent. Also represented by BRYAN G. POLISUK. 

______________________ 

Before LOURIE, DYK, and HUGHES, Circuit Judges.
2 SEDA v. MSPB 

PER CURIAM.

Anthony Wayne Seda (“Seda”) appeals from the decision of the Merit Systems Protection Board (the “Board”) 

dismissing his appeal for lack of jurisdiction. See Seda v. 

Soc. Sec. Admin., No. PH-0330-14-0719-I-1 (M.S.P.B. Aug. 

25, 2015) (“Final Order”). Because the Board did not err 

in dismissing the appeal, we affirm. 

BACKGROUND

Seda was employed by the Social Security Administration (“SSA”) on a probationary basis from February 

27, 2005, to January 25, 2006. Resp’t’s App. 9. Seda is a 

preference-eligible veteran. Final Order at 2 ¶2.

In late 2005, Seda was diagnosed with and treated for 

a number of medical problems, including cancer. Resp’t’s 

App. 15–16. He requested medical leave and a transfer to 

a different office. Id. In January 2006, however, SSA 

terminated his employment. Id. at 35. The coding on the 

Notice of Personnel Action indicated that he had been 

terminated during his probationary period because of

“unacceptable or unsatisfactory performance or other 

factors unrelated to misconduct or delinquency.” See id.; 

U.S. Office of Personnel Mgmt., The Guide to Processing 

Personnel Actions 31-21 tbl.31-B r.32. 

In October 2006, Seda appealed his termination to the 

Board. Resp’t’s App. 121. In January 2007, the Administrative Judge (“AJ”) issued an initial decision, finding

that because Seda had only completed 11 months of 

continuous employment, he was within his probationary 

period and had no Board appeal rights, and therefore 

dismissed the appeal for lack of jurisdiction. Id. at 121–

125. Seda’s petition for review by the full Board was 

denied in May 2007, and the initial decision became final. 

Id. at 118–120.

Years later, on June 2, 2014, Seda filed an appeal to 

the Board asserting that his termination violated his 
SEDA v. MSPB 3

rights under the Veterans Employment Opportunities Act 

of 1998 (“VEOA”), as well as other statutory and constitutional rights. Final Order at 2–3 ¶2; Resp’t’s App. 110–

115. The AJ issued an acknowledgment order, informing

Seda of the criteria for establishing the Board’s jurisdiction over his appeal according to 5 U.S.C. § 3330a, and 

ordering him to provide a statement indicating when he 

first filed a complaint with the U.S. Department of Labor 

(“DOL”). Final Order at 3 ¶3; Resp’t’s App. 106–109. 

The government responded by filing a motion to dismiss, asserting that Seda failed to exhaust his administrative remedies by first filing a complaint with the DOL. 

Resp’t’s App. 88–97. The government also argued that 

even if Seda had timely filed a complaint with the DOL, 

his removal during his probationary period would have 

been sustained. Id. Seda filed responses to the acknowledgment order, but addressed only the merits of his 

removal. Id. at 98–105; id. at 61–82. 

On September 29, 2014, the AJ issued an initial decision dismissing the appeal for lack of jurisdiction. 

Resp’t’s App. 8–11. The AJ noted that Seda failed to file 

any submissions responsive to the acknowledgment order,

i.e., regarding the jurisdictional issue. Although Seda 

submitted the February 17, 2006 notice regarding his 

unemployment insurance benefits, the AJ rejected the 

letter as neither a complaint filed with the DOL nor a 

response from the DOL regarding his VEOA claims. The 

AJ found that it was “abundantly clear” that Seda did not 

file a complaint with the DOL within the required 60 days 

of his termination and thus never exhausted his administrative remedies. Id. at 11. The AJ also noted that Seda

offered no valid reason to toll the deadline for seeking 

relief from the DOL. Id. The AJ concluded that Seda had 

not established Board jurisdiction over his VEOA appeal 

and accordingly dismissed the appeal for lack of jurisdiction. Id.
4 SEDA v. MSPB 

Seda filed a petition for review by the full Board on 

June 1, 2015. The Board sent him a notice stating that 

his petition was untimely as filed more than 35 days after 

the September 29, 2014 initial decision. Seda responded 

that he had not received notice of the decision until he 

contacted the Board’s regional office in May 2015. The 

government opposed Seda’s petition for review as untimely, noting that it was filed more than eight months after 

the initial decision was issued. Resp’t’s App. 28–33.

The full Board found that Seda was not a registered

e-filer and should have received service by another method, and thus determined that his petition was timely filed. 

Final Order at 5 ¶7. However, the full Board agreed with 

the AJ that Seda failed to show that he had first filed a 

complaint with DOL. Id. at 5–6 ¶8. Because evidence of 

administrative exhaustion is required to establish Board 

jurisdiction over an appeal brought under the VEOA, and 

Seda failed to provide such mandatory evidence, the 

Board found that the AJ correctly dismissed the appeal 

for lack of jurisdiction. Id.

Seda timely appealed from the Board’s final decision

to this court. We have jurisdiction pursuant to 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

We review a determination of the Board’s jurisdiction 

de novo. Lazaro v. Dep’t of Veterans Affairs, 666 F.3d 

1316, 1318 (Fed. Cir. 2012). “The Board’s jurisdiction is 

limited to actions made appealable to it by law, rule, or 

regulation.” Id. (citing 5 U.S.C. § 7701(a)). The petitioner 

must prove that the Board has jurisdiction by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i) (2014). 

To establish the Board’s jurisdiction, the petitioner 

must “show that he exhausted his remedies with the 

Department of Labor.” Lazaro, 666 F.3d at 1319 (citing 5 

U.S.C. § 3330a). The VEOA provides that a preference-
SEDA v. MSPB 5

eligible veteran may appeal an alleged violation of veterans’ preference rights to the Board only after a complaint 

is filed with the Secretary of Labor and only after the 

Secretary has had a specified period of time to investigate 

the complaint. 5 U.S.C. § 3330a(d)(1); id. § 3330a(a). The 

VEOA also requires a written notification to the Secretary 

of the veteran’s intent to bring such an appeal. Id.

§ 3330a(d)(2).

Seda argues that the Board did not consider the rule 

against violating veterans’ preference requirements under 

5 U.S.C. § 2302(b)(11). Seda claims that he is a preference-eligible veteran who was suffering from and diagnosed with prostate cancer while employed by the SSA. 

Seda contends that he never received a notice of removal 

or a thirty-day notice, nor did he receive any additional 

separation information as requested. Because the agency 

had the burden of proving that its removal action was 

justified, Seda posits, the Board should have reviewed the 

merits of his case. Seda insists that the Board would 

have found that the SSA had no evidence of misconduct 

and thus that it violated his veterans’ preference rights by 

terminating his employment based on his request for 

reasonable accommodation for his disability. Seda finally

asserts that he wrote two letters to the Secretary of Labor 

and received no response, thereby exhausting his administrative remedies.

The government responds that Seda bore the burden 

of establishing jurisdiction, but that he failed to show that 

he exhausted his administrative remedies and therefore 

the Board could not assert jurisdiction over his appeal. 

The government contends that both the AJ’s acknowledgment order and SSA’s motion to dismiss informed 

Seda of what he needed to do to establish the Board’s 

jurisdiction over his appeal. The government also maintains that the Board correctly considered all the facts to 

conclude that there was no evidence in the record that 

Seda ever filed a complaint with the DOL. Moreover, the 
6 SEDA v. MSPB 

government argues, there was no valid reason to toll the 

60-day filing deadline that Seda missed for filing his 

complaint with the DOL.

We agree with the government that the Board did not 

err in dismissing Seda’s appeal for lack of jurisdiction. 

We acknowledge the apparent lack of an official explanation for Seda’s termination; the only evidence from SSA in 

the record before us pertaining to the merits of his removal appears in the agency’s June 2014 motion to dismiss. 

Seda’s frustration with the removal action, however, is 

insufficient to vest the Board with jurisdiction to hear his 

appeal. The VEOA requires exhaustion of administrative 

remedies before a Board appeal, and the record does not 

reflect any such action. 

Seda asserts that he received a document dated February 17, 2006, showing that SSA failed to provide DOL 

with the reason for his removal. The Notice of Benefit 

Determination in the record to which Seda refers states 

that Seda was discharged “for reasons unknown” and that 

the employing agency had “failed to provide additional 

separation information as requested.” Resp’t’s App. 87. 

Accordingly, “insufficient information ha[d] been presented to show that [Seda’s] actions constituted misconduct in 

connection with the work.” Id. The implication of this 

assertion is that Seda did exhaust his administrative 

remedies. However, that notice is a document from the 

State of Maryland Department of Labor, Licensing and 

Regulation, Division of Unemployment Insurance, regarding state unemployment insurance benefits. Id. It has no 

bearing on whether he exhausted his administrative 

remedies with the United States Department of Labor by 

timely challenging his removal as required by the VEOA. 

Seda has also proffered, on appeal, letters allegedly 

sent to the Secretary of Labor on December 24, 2005, and 

on February 17, 2006. The first letter presents inconsistent assertions and, as his termination had not yet 
SEDA v. MSPB 7

occurred at that date, merely reports that both of his 

supervisors denied his requests for transfer and medical 

leave. The second letter claims that it is a follow-up to 

the first letter, and alleges that his recent removal violated his veterans’ preference rights. These letters, supposedly not discovered until shortly before submitting them 

to the court in September 2015, were not part of the 

record before the Board. Thus, whatever their meaning, 

they cannot be considered on appeal. See, e.g., Oshiver v. 

Office of Personnel Mgmt., 896 F.2d 540, 542 (Fed. Cir. 

1990).

Accordingly, Seda did not provide the Board with evidence in support of his bare assertions that he timely filed 

a complaint with the DOL. Moreover, as the government 

states, he did not present evidence that good cause existed 

for delaying the filing of a complaint such that the deadline should have been tolled. Without such evidence, the 

Board lacked the statutory jurisdiction to adjudicate his 

appeal based on a claim brought under the VEOA. 

CONCLUSION

We have considered Seda’s remaining arguments and 

find them unpersuasive. We conclude that Seda did not 

establish the Board’s jurisdiction over his appeal, and 

thus the Board did not err in dismissing his appeal for 

lack of jurisdiction. Accordingly, the decision of the Board 

is affirmed.

AFFIRMED

COSTS

No costs.