Slate v. United States Postal Service ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3087
JAMES E. SLATE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
James E. Slate, of Mt. Airy, North Carolina, pro se.
Shari A. Rose, Trial Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. With her on the brief
were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson,
Director, and Steven J. Gillingham, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2009-3087
JAMES E. SLATE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board
in DC3330080612-I-2
__________________________
DECIDED: August 10, 2009
__________________________
Before LOURIE, CLEVENGER and SCHALL, Circuit Judges.
PER CURIAM.
James E. Slate seeks review of the final decision of the Merit Systems Protection
Board (board) dismissing his claim for relief under the Veterans Employment
Opportunities Act of 1998 (VEOA). Slate v. U.S. Postal Serv., 110 M.S.P.R. 306 (Table)
(M.S.P.B. 2008). We affirm.
I
Mr. Slate is a former Postal Service letter carrier who was removed from
employment by the agency on August 4, 2000, for improper conduct and failure to follow
instructions. Mr. Slate challenged his removal through arbitration and by a suit filed with
the board. The board proceeding was dismissed without prejudice so Mr. Slate could
proceed with arbitration. Mr. Slate lost his challenge through arbitration, and, effective
June 25, 2001, was removed from the employment rolls by the agency. Thereafter,
Mr. Slate reinstated his board suit. In due course, the board heard his challenge to the
removal and ruled against him. The board's final decision sustaining his removal is
dated May 10, 2004.
On May 28, 2008, Mr. Slate filed a complaint with the Department of Labor (DOL)
alleging violation of his VEOA rights. In particular, Mr. Slate argued that he should not
have been removed from the agency's employment rolls until the board finally sustained
his removal on May 10, 2004. The consequences of the allegedly incorrect earlier
removal from the employment rolls denied Mr. Slate additional years of service that
would have allegedly qualified him for retirement benefits. Understanding the alleged
VEOA violation to have been removal from the employment rolls on August 4, 2000, the
DOL dismissed Mr. Slate's VEOA claim as untimely. The VEOA required Mr. Slate to
have filed his complaint with the DOL within sixty days of the alleged VEOA violation.
Mr. Slate appealed the DOL's dismissal to the board. Under Kirkendall v.
Department of the Army, 479 F.3d 830, 835-44 (Fed. Cir. 2007) (en banc), cert. denied,
128 S. Ct. 375 (2007), the doctrine of equitable tolling applies to the sixty-day filing
window at the DOL. The administrative judge assigned to Mr. Slate's appeal notified
Mr. Slate of the sixty-day filing requirement and informed him that the requirement could
be waived for a good-cause showing that equitable tolling should forgive Mr. Slate's
untimely filing at the DOL. Mr. Slate replied that "[a]gency trickery or misconduct in part
caused the appellant's delay in appealing."
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On August 13, 2008, the administrative judge issued her initial decision. In it,
she explained that Mr. Slate had failed to show good cause to invoke equitable tolling to
forgive his late filing of his VEOA complaint. With regard to the allegation that the
agency, by trickery or misconduct, was responsible for Mr. Slate's untimely filing, the
decision explained that Mr. Slate had alleged no facts which, if proven, would have
sustained his unsubstantiated contention that the agency was to blame for his untimely
complaint to the DOL. Accordingly, the initial decision dismissed Mr. Slate's VEOA
claim for untimeliness and failure to show entitlement to equitable tolling. The initial
decision became the board's final decision when the board denied Mr. Slate's petition
for review on October 29, 2008. Mr. Slate timely sought review in this court, and we
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
We review a final decision of the board to determine if it is "arbitrary, capricious
an abuse of discretion, or otherwise not in accordance with law, rule or regulation; or
unsupported by substantial evidence." Robinson v. Dep't of Homeland Sec., 498 F.3d
1361, 1364 (Fed. Cir. 2007) (citing 5 U.S.C. § 7703(c)). Further, the board's findings of
fact must be supported by substantial evidence. O'Keefe v. U.S. Postal Serv., 318 F.3d
1310, 1314 (Fed. Cir. 2002).
The only issue in this appeal is whether the board erred in concluding that
Mr. Slate had not made a case for equitable tolling of the sixty-day filing provision.
Without support for his bare assertion that the agency was responsible for his delay, the
board did not abuse its discretion in denying Mr. Slate the benefits of equitable tolling.
Without those benefits, Mr. Slate's VEOA complaint was untimely and thus correctly
2009-3087 3
dismissed. The board did not err in denying Mr. Slate's request for corrective action
under VEOA.
COSTS
No costs.
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