N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ANTHONY WAYNE SEDA, Petitioner

v.

MERIT SYSTEMS PROTEC TION 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

______________________

A NTHONY W AYNE S EDA , Aberdeen, MD, pro se.

S ARA B. R EARDEN , Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by B RYAN G. P OLISUK

.

______________________

Before L OURIE , D YK , and H UGHES , Circuit Judges.SEDA v. MSPB 2

P ER C URIAM

. An thony Wayne Seda (“Seda”) appeals from the dec ision o f 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 , 201 5 ) (“ Final Or der ”). Because the Board did not err in dismissing the appeal , we affirm

. B ACKGROUND Seda was employed by the Social Security Admi nistration (“SSA”) on a probationary basis from February 27 , 2005, to January 25, 2006

. Resp ’ t’s App. 9. Seda i s 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 N otice of Personnel A ction i ndicated that he had been terminated during his probationary period because of “unacceptable or unsatisfactory performance or other factor s 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, S eda appealed his termination to the Board. Resp’t’s App. 121. In January 2007, the Admini strative 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 dis miss ed the appeal for lack of ju risdiction. 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 hisSEDA v. MSPB 3

rights under the Veterans Employment Opportunities Act of 1998 (“VEOA”), as well as other statutory and constit utional 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 jurisdi ction over his appeal according to 5 U.S.C. § 3330a
, and ordering him to provide a statem ent indicating when he first filed a complaint with the U.S. Department of Labor (“DOL”)

. Final O rder at 3 ¶3 ; Resp ’ t’ s App. 106

– 109

. The government responded by fil ing a motion to di smiss, asserting that Seda failed to exhaust his admini strative 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 acknow ledgment order

, but address ed only the merits of his

rem oval. Id. at 98

– 105; id. at 61

– 82

. On September 29, 2014, the AJ issued an initial dec ision 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. Alth ough 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 V EOA 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 admini strative reme dies. 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 jurisdi ction. Id.SEDA v. MSPB 4

Seda file d a pet ition 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 decisio n until he contacted the Board’s regional office in May 2015. The government opposed Seda’s petitio n for review as untim ely , noting that it was filed more than eight months after the initial decision was issued

. Resp ’ t’s App. 28

– 33.

The full Boa rd found that Seda was not a registered

e- filer and should have received service by another met hod , 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 h ad first filed a complaint with DOL. Id. at 5– 6 ¶8

. Becau se evidence of administrative exhaustion is required to establish Board jurisdiction over an appeal brought under the VEOA , and Seda failed to provide such mandatory evi dence, 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).

D ISCUSSION
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 prepo nderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(i) (2014).

T o 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 pro vides that a preference

-SEDA v. MSPB 5

eligible veteran may appeal an alleged violation of vete rans’ 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 prefe rence

- eligible veteran who was suffering from and dia gnosed 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 exh austing his admi nistrative remedi es. 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 app eal. The government contends that both the AJ’s acknow ledgment order and SSA’s motion to dismiss informed Seda of what he needed to do to establish the Board’s jurisdiction over his appe al. The government also mai ntains that the Board correctly considere d all the facts to conclude that there was no evidence in the record that Seda ever filed a complaint with the DOL. Moreover, theSEDA v. MSPB 6

government argues, there was no valid reason to toll the 60

- day filing deadline that Seda missed for filing his complaint wit h 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 explan ation for Seda’s termination; the only evidence from SSA in the record before us pertaining to the merits of his remo val 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

appea l. The VEOA requires exhaustion of adm inistrative remedies before a Board appeal, and the record does not reflect any such action

. Seda asserts that he received a document dated Fe bruary 17, 2006, show ing that SSA failed to provide DOL with the reason for his removal. The Notice of Benefit De termination 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 inform ation ha[d] been presen ted 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, th at notice is a document from the State of Maryland Department of Labor, Licensing and Regulation, Division of Unemployment Insurance , regar ding 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 o n December 24, 2005
, and

on February 17, 2006. The first letter presents inco nsistent assertions and

, as his termination had not yetSEDA 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 viola ted his veterans’ preference rights

. T hese letters

, suppo sedly not discovered until shortly before submitting them to the court in September 2015, were not part of the record before the Board . T hus , 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 ev idence 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

. C ONCLUSION

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 dismiss ing his app eal for lack of jurisdiction. Accordingly, the decision of the Board is affirmed.

AFFIRMED

C OSTS

No costs.