Herbert McCoy, Jr. v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
HERBERT MCCOY, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1565
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-3330-19-0007-I-1.
______________________
Decided: October 24, 2024
______________________
HERBERT MCCOY, JR., Stafford, VA, pro se.
KELLY WINSHIP, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON JANE BOYLE,
KATHERINE MICHELLE SMITH.
______________________
Before LOURIE, TARANTO, and STARK, Circuit Judges.
LOURIE, Circuit Judge.
Herbert McCoy, Jr. appeals from a decision of the Merit
Systems Protection Board (“the Board”) dismissing his
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MCCOY v. MSPB 2
administrative appeal for lack of jurisdiction. McCoy v.
Gen. Servs. Admin., No. DC-3330-19-0007-I-1, 2024 WL
913841 (M.S.P.B. Mar. 1, 2024) (“Decision”). For the
following reasons, we affirm.
BACKGROUND
McCoy applied for a Program Analyst position with the
General Services Administration (“the GSA”). S.A.1 29. On
September 26, 2018, McCoy was informed that he had not
been selected for the position. See S.A. 26, 29.
On September 30, 2018, McCoy appealed his non-
selection to the Board, asserting that he did “not believe
[his] Veteran’s Preference and [] 30% or more Disabled
Veteran status [were] considered for the Job Position.” S.A.
26. In the appeal he noted that he had not yet filed a
complaint with the Secretary of Labor. S.A. 27.
On October 2, 2018, because McCoy’s appeal appeared
to raise a claim under the Veterans Employment
Opportunities Act of 1998 (“VEOA”), which requires a
petitioner to first file a complaint with the Secretary of
Labor before seeking Board review, see generally 5 U.S.C.
§ 3330a, the Board’s Administrative Judge (“AJ”) ordered
McCoy to provide proof that he had satisfied that
requirement. S.A. 30, 31, 35. The AJ explained that the
burden was on McCoy to establish jurisdiction, see S.A. 31–
34, and requested McCoy to provide “the date [he] filed a
complaint with the Secretary of Labor, and the date [he]
received written notice, if any, from the Secretary.” S.A. 35.
And, if McCoy had received notice from the Secretary, the
AJ requested a copy of the Secretary’s communication to
him. S.A. 35. In response, McCoy submitted various
documents to the Board, none of which established that
1 “S.A.” refers to the Supplemental Appendix filed
with Respondent’s Brief.
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MCCOY v. MSPB 3
McCoy had filed a complaint to, or received notice from, the
Secretary. S.A. 39–43.
On October 26, 2018, the AJ issued an Initial Decision,
dismissing the appeal for lack of jurisdiction because
McCoy had not proven that he had exhausted his
Department of Labor (“DOL”) remedy. S.A. 45–48 (citing 5
U.S.C. § 3330a).
On November 28, 2018, McCoy petitioned the Board for
review of the Initial Decision. S.A. 44. McCoy argued that
his petition was “based on a violation of veterans’
preference rights under the [VEOA] via lack of
jurisdiction.” S.A. 44. The GSA responded to the petition,
arguing that because McCoy had still not shown that he
filed a complaint with the Secretary, the AJ had correctly
dismissed the appeal for lack of jurisdiction. S.A. 56–57.
The Board agreed with the GSA, and on March 1, 2024,
denied the petition and affirmed the initial decision
because McCoy had “not address[ed] the issue of DOL
exhaustion” and therefore had not met his burden in
establishing the Board’s jurisdiction. Decision, at *2.
McCoy timely petitioned for review of the Board’s
decision. He also filed a Fed. Cir. R. 15(c) Statement
Concerning Discrimination, stating that he had alleged
discrimination before the Board and that he did not wish
to abandon his claim. S.A. 60–62. In that statement,
however, he only refers to his VEOA claims, not to his
failure to exhaust his remedy at the DOL. Id. In his
informal brief, McCoy also contends that the Board’s
decision to dismiss his appeal was erroneous under the
Americans with Disabilities Act. Pet’r’s Br. at 3.
In general, we do not have jurisdiction over “mixed
case[s,]” in which a federal employee “complains of having
suffered a serious adverse personnel action appealable to
the [Board]” and “attributes the adverse action . . . to bias
prohibited by [certain] federal antidiscrimination laws”
listed in 5 U.S.C. § 7702(a)(1). Harris v. S.E.C., 972 F.3d
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MCCOY v. MSPB 4
1307, 1317 (Fed. Cir. 2020). However, because there is
nothing in the record suggesting that McCoy attributed his
non-selection to discrimination prohibited under the laws
provided in 5 U.S.C. § 7702(a)(1), we have jurisdiction over
this appeal under 5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
We review the Board’s jurisdictional determinations de
novo. Bryant v. Merit Sys. Prot. Bd., 878 F. 3d 1320, 1325
(Fed. Cir. 2017). The Board is a tribunal with limited
jurisdiction, only permitted to hear matters as granted by
law, rule, or regulation. Jones v. Merit Sys. Prot. Bd.,
98 F.4th 1376, 1380–81 (Fed. Cir. 2024) (citing Maddox v.
Merit Sys. Prot. Bd., 759 F.2d 9, 10 (Fed. Cir. 1985)); see
also 5 U.S.C. § 7701(a).
Preference eligible veterans receive advantages when
seeking federal employment. Lazaro v. Dep’t of Veterans
Affs., 666 F.3d 1316, 1318 (Fed. Cir. 2012). To enable
veterans to receive these preference rights, Congress has
enacted various statutes relating to the hiring of preference
eligible veterans. Id. The VEOA provides preference
eligible veterans with “a right to file a claim for any agency
hiring decision that violated [their] rights under a statute
or regulation relating to veteran’s preference.” Id. (citing 5
U.S.C. § 3330a). To invoke Board jurisdiction for a VEOA
claim:
[A]n appellant must (1) show that he exhausted his
remedies with the [Department of Labor] and (2)
make nonfrivolous allegations that (i) he is
preference eligible within the meaning of the
VEOA, (ii) the action(s) at issue took place on or
after the October 30, 1998 enactment date of the
VEOA, and (iii) the agency violated his rights
under a statute or regulation relating to veteran’s
preference.
Id. at 1319 (second alteration in original).
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Section 3330a of the VEOA outlines the exhaustion
process. A complaint relating to veterans’ preference must
be filed with the Secretary of Labor, who is responsible for
investigating the matter. 5 U.S.C § 3330a(a)(1)(A), (b)(1).
If the Secretary is unable to resolve the complaint, the
Secretary must notify the complainant, in writing, of the
results of the investigation. Id. § 3330a(c)(2). The
complainant then has 15 days to appeal to the Board. Id.
§ 3330a(d)(1)(B). The complainant can also appeal to the
Board if more than 60 days have passed since the
complaint was filed and the complainant has not received
written notification from the Secretary. Id.
§ 3330a(d)(1)(A). A complainant may not appeal to the
Board without first providing written notification to the
Secretary of his or her intention to bring an appeal. Id.
§ 3330a(d)(2)(A). Additionally, evidence of written
notification to the Secretary must be included with the
notice of appeal to the Board. Id. § 3330a(d)(2)(B).
On appeal, McCoy does not address his failure to
provide evidence of his complaint to the Secretary. Rather,
his briefing reiterates his contention that under the VEOA,
his “rights as a Disabled US Veteran seeking employment”
entitled him to either the position he applied for with the
GSA or monetary relief. Pet’r’s Reply Br. at 3; see also
Pet’r’s Br. at 2. But that statement is insufficient, by
statute, to convey Board jurisdiction over his claims.
Because McCoy has not shown that he has exhausted
his DOL remedies before appealing to the Board, we affirm
the Board’s determination that it lacked jurisdiction over
McCoy’s petition.
CONCLUSION
We have considered McCoy’s other arguments and find
them unpersuasive. For the foregoing reasons, we affirm.
AFFIRMED
COSTS
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No costs.
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