Case: 21-1447 Document: 23 Page: 1 Filed: 07/09/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NEIL F. SLEEVI,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1447
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-4324-20-0767-I-1.
______________________
Decided: July 9, 2021
______________________
NEIL F. SLEEVI, Platte City, MO, pro se.
DEANNA SCHABACKER, Office of General Counsel,
United States Merit Systems Protection Board, Washing-
ton, DC, for respondent. Also represented by TRISTAN L.
LEAVITT, KATHERINE MICHELLE SMITH.
______________________
Before MOORE, Chief Judge, LINN and O’MALLEY, Circuit
Judges.
Case: 21-1447 Document: 23 Page: 2 Filed: 07/09/2021
2 SLEEVI v. MSPB
O’MALLEY, Circuit Judge.
Neil F. Sleevi seeks review of a decision of the Merit
Systems Protection Board (“Board”). The Board dismissed
Mr. Sleevi’s appeal of the Department of Homeland Secu-
rity’s (“DHS”) rescission of an employment offer. Mr. Sleevi
alleges that DHS violated the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (USERRA),
38
U.S.C. § 4301, et seq., when it rescinded his employment
offer in 2007. Nearly thirteen years after this alleged vio-
lation, he filed his appeal with the Board. The Board
granted DHS’s unopposed motion to dismiss, finding that
Mr. Sleevi’s claim was barred by laches. Sleevi v. DHS, No.
DC-4324-20-0767-I-1,
2020 WL 5174841 (Aug. 25, 2020).
Because the Board’s decision was not an abuse of discre-
tion, we affirm.
BACKGROUND
In April 2007, DHS offered Mr. Sleevi, who was then
serving in the military, a position as a Telecommunications
Specialist in the now defunct National Programs and Pro-
tection Directorate. 1 On August 29, 2007, DHS rescinded
that job offer. Mr. Sleevi filed a complaint with the DOL in
February 2008, alleging that DHS rescinded his job offer
because of his military obligations in violation of USERRA.
In November 2008, the DOL notified Mr. Sleevi that it
had not found a USERRA violation. The DOL informed Mr.
Sleevi that he had the right to file a complaint against the
DHS directly to the Board. The DOL cautioned Mr. Sleevi
that the Board “encourages appellants to file a USERRA
1 The National Programs and Protection Directorate
was reorganized into the Cybersecurity and Infrastructure
Security Agency in 2018.
6 U.S.C. § 652(a)(1).
Case: 21-1447 Document: 23 Page: 3 Filed: 07/09/2021
SLEEVI v. MSPB 3
appeal as soon as possible after the date of alleged viola-
tion[.]” App. 48 (citing
5 C.F.R. § 1208.12). 2
Mr. Sleevi waited until July 28, 2020—nearly thirteen
years after he was notified of DHS’s rescission of his job
offer and nearly twelve years after he received the DOL no-
tice—to appeal to the Board. DHS filed a motion to dis-
miss, arguing that the doctrine of laches barred Mr.
Sleevi’s appeal due to his lengthy delay in filing. Specifi-
cally, DHS argued that Mr. Sleevi’s delay prejudiced its
ability to respond to his claim for three reasons: (1) any rel-
evant documents would have been long destroyed under
DHS’s general two-year document preservation regulation;
(2) any witnesses would be difficult or impossible to locate;
and (3) the office to which Mr. Sleevi had applied no longer
existed and had transitioned through a number of reorgan-
izations. Mr. Sleevi did not respond to DHS’s motion. The
Board granted the motion, finding that Mr. Sleevi offered
no excuse for his unreasonable delay and that his delay
prejudiced DHS’s ability to respond to his claims.
Mr. Sleevi appealed the Board’s dismissal of his appeal
to this court. We have jurisdiction under
28 U.S.C.
§ 1295(a)(9).
DISCUSSION
This court sets aside final Board decisions that it finds
to be “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence[.]”
5
U.S.C. § 7703(c). To establish the defense of laches, the
party claiming laches must show that (1) there was unrea-
sonable and inexcusable delay in bringing the appeal that
(2) materially prejudiced or injured it. See Nuss v. Off. of
2 Citations to “App.” refer to Appellant Mr. Sleevi’s
Appendix.
Case: 21-1447 Document: 23 Page: 4 Filed: 07/09/2021
4 SLEEVI v. MSPB
Pers. Mgmt,
974 F.2d 1316, 1318 (Fed. Cir. 1992). We re-
view the Board’s application of the doctrine of laches for an
abuse of discretion and review underlying factual findings
for clear error. See Bridgestone/Firestone Rsch., Inc. v.
Auto. Club de l’Ouest de la France,
245 F.3d 1359, 1361
(Fed. Cir. 2001).
For the first time on appeal, Mr. Sleevi alleges that
DHS committed wide-ranging fraud, which excuses his
lengthy delay. He claims that the DHS fraudulently con-
cealed evidence which prevented him from knowing in
2007 and 2008 that his military service obligation was a
motivating factor in the rescission of his employment offer.
He also alleges that DHS spoliated documents in adhering
to its general policy of destroying documents after two
years.
Mr. Sleevi further argues that the Board violated the
pro-veteran canon of construction by failing to consider ev-
idence of potential fraud. Mr. Sleevi admits that he never
responded to DHS’s motion to dismiss. But he argues that,
even without this response, the pro-veteran canon of con-
struction required the Board to systematically review the
entire record for evidence that could be construed in his fa-
vor. Finally, Mr. Sleevi argues that the Board erred in
finding that it “must dismiss” his case for laches. Mr.
Sleevi admits that the Board had discretion to dismiss his
appeal, but maintains that less severe remedies exist and
that he must be given the benefit of those options under the
pro-veteran canon of construction.
Mr. Sleevi’s arguments do not persuade us that the
Board abused its discretion in dismissing Mr. Sleevi’s ap-
peal. Substantial evidence supports the Board’s findings
that Mr. Sleevi’s delay was both unreasonable and inexcus-
able. The DOL notified Mr. Sleevi in 2008 of his right to
appeal to the Board and cautioned him that the Board “en-
courages appellants to file a USERRA appeal as soon as
possible after the date of [the] alleged violation[.]” App. 48.
Case: 21-1447 Document: 23 Page: 5 Filed: 07/09/2021
SLEEVI v. MSPB 5
Yet Mr. Sleevi waited nearly thirteen years after the DHS
rescinded his job offer and nearly twelve years after he re-
ceived the DOL notice. Not only did Mr. Sleevi provide no
excuses for this lengthy delay to the Board, he failed to re-
spond to the DHS’s motion to dismiss.
Mr. Sleevi’s contentions for the first time on appeal
concerning DHS’s alleged fraud similarly fall flat. Mr.
Sleevi has waived these arguments as they were not pre-
sented to the Board. See Sage Prods., Inc. v. Devon Indus.,
126 F.3d 1420, 1426 (Fed. Cir. 1997) (“With a few notable
exceptions, such as some jurisdictional matters, appellate
courts do not consider a party’s new theories, lodged first
on appeal.”). But even if we were to consider the merits of
these arguments, they do not excuse Mr. Sleevi’s lengthy
delay. Mr. Sleevi claims that the DHS fraudulently con-
cealed evidence which prevented him from knowing in
2007 and 2008 that his military service obligation was a
motivating factor in the rescission of his employment offer.
He does not explain how the DHS allegedly concealed this
information, how he came to discover it in 2020, or how his
late discovery of this information excuses his lengthy delay
in appealing to the Board. In fact, Mr. Sleevi’s complaint
to the DOL in 2008 that the DHS rescinded his job offer
because of his military service—the very fact of which he
now says he was unaware in 2008—refutes his newly
launched assertion of fraud.
Substantial evidence also supports the Board’s findings
that Mr. Sleevi’s lengthy delay would materially prejudice
DHS’s ability to respond to his allegations. Unrefuted evi-
dence from DHS shows that its general policy was to de-
stroy documents after two years and that the office which
offered Mr. Sleevi a position in 2007 no longer existed as of
2020. Thus, evidence from 2007 likely did not still exist in
2020, when Mr. Sleevi belatedly brought his appeal. DHS’s
assertion that any witnesses from 2007 would be difficult
or impossible to locate also went unrefuted. For the first
time on appeal, Mr. Sleevi asserts that DHS created its
Case: 21-1447 Document: 23 Page: 6 Filed: 07/09/2021
6 SLEEVI v. MSPB
own prejudice through spoliation of evidence. This argu-
ment is waived as it was not presented to the Board. See
Sage Prods.,
126 F.3d at 1426. It is worth noting moreover,
DHS does not spoliate evidence by following its general rec-
ord retention policies when no litigation was threatened or
reasonably foreseeable. The Board thus did not clearly err
in finding that Mr. Sleevi’s delay in filing his appeal preju-
diced DHS.
The pro-veteran canon does not help Mr. Sleevi. As
with his other arguments, these arguments are waived as
they were not raised before the Board. See Sage Prods.,
126 F.3d at 1426. But even on the merits, the pro-veteran
canon of construction does not apply. The pro-veteran
canon is a canon of statutory construction, see Fishgold v.
Sullivan Corp.,
328 U.S. 275, 285 (1946), and Mr. Sleevi
has not raised any disputes of statutory or regulatory con-
struction. The canon does not require the Board to review
the record and draft arguments on Mr. Sleevi’s behalf. Nor
does it prevent the Board from finding that a veteran’s
claim is barred by laches where, as here, the veteran de-
layed filing his appeal for over a decade with no excuse for
that delay.
CONCLUSION
We have considered Mr. Sleevi’s remaining arguments
and find them unpersuasive. For the foregoing reasons,
the Board’s factual findings are supported by substantial
evidence and its dismissal of Mr. Sleevi’s appeal under the
doctrine of laches does not amount to an abuse of discre-
tion. Accordingly, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.
