Shoneka Hall v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHONEKA L. HALL, DOCKET NUMBER
Appellant, CH-0714-18-0418-I-1
v.
DEPARTMENT OF VETERANS DATE: February 26, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Clinton D. Hall , Indianapolis, Indiana, for the appellant.
Kyle C. Mardis , Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the agency’s removal action taken under 38 U.S.C. § 714as untimely filed. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the initial decision’s analysis of the Board’s authority to waive or toll the
filing deadline of an appeal filed under 38 U.S.C. § 714, we AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
By notice dated April 25, 2018, the agency informed the appellant of her
removal for alleged misconduct, effective May 4, 2018. Initial Appeal File (IAF),
Tab 5 at 16-19. The notice further informed the appellant that she could file an
appeal of her removal with the Board “not later than 10 business days after the
effective date” of the removal action. Id. at 17.
On June 3, 2018, the appellant filed this appeal by mail. IAF, Tab 1 at 28.
She indicated in her appeal that she received the removal notice on April 28,
2018. Id. at 3. She further stated that, according to the 2013 version of the Board
appeal form she used to file her appeal, “I understand that I have 30 days to file
my appeal.” Id. at 6. After the agency filed a motion to dismiss the appeal as
untimely filed, to which the appellant did not respond, the administrative judge
scheduled a telephonic status conference. IAF, Tab 7. The appellant did not
appear for the status conference. Thereafter, the administrative judge issued an
Order to Show Cause in which she informed the appellant that her appeal
appeared to be untimely filed and that she must show that her appeal was timely
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filed or that good cause existed for the delay in filing. IAF, Tab 8 at 1-2. The
appellant did not respond to the administrative judge’s order.
The administrative judge issued an initial decision in which she dismissed
the appeal as untimely filed by 20 days without a showing of good cause. IAF,
Tab 10. The appellant has filed a petition for review in which she argues the
merits of her appeal but does not address the timeliness issue. Petition for
Review (PFR) File, Tab 1. The agency has responded in opposition to the
petition for review. PFR File, Tab 3.
An appeal of a removal action taken under 38 U.S.C. § 714, such as this
one, “may only be made if such appeal is made not later than 10 business days
after the date of such removal.” 38 U.S.C. § 714(c)(4)(B); Ledbetter v.
Department of Veterans Affairs, 2022 MSPB 41, ¶ 6. The appellant’s removal
was effective May 4, 2018. IAF, Tab 5 at 16, Tab 6 at 4. Under 38 U.S.C.
§ 714(c)(4)(B), her appeal was due on or before May 17, 2018. She filed her
appeal on June 3, 2018, and, thus, her appeal was untimely filed by 17 days. The
remaining question, therefore, is whether the Board may waive or toll this
statutory deadline.
A deadline prescribed by statute or regulation may be waived when:
(1) the statute or regulation itself specifies circumstances in which the time limit
will be waived; (2) an agency’s affirmative misconduct precludes it from
enforcing an otherwise applicable deadline under the doctrine of equitable
estoppel, unless the application of equitable estoppel would result in the
expenditure of appropriated finds in contravention of statute; and (3) an agency’s
failure to provide a mandatory notice of election rights warrants the waiver of the
time limit for making the election. Ledbetter, 2022 MSPB 41, ¶ 8. The Board
has also recognized that the doctrine of equitable tolling may be available under
certain circumstances to toll a statutory deadline in an untimely filed appeal. Id.The statutory time limit for filing an appeal under 38 U.S.C. § 714 cannot
be waived under the first basis because Congress did not provide for it. Id., ¶ 9.
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It cannot be waived for “good cause shown,” id., and we find that the
administrative judge erred by applying a good cause standard in this appeal.
In addition, 38 U.S.C. § 714 does not require the agency to notify
employees of their election rights or any filing deadlines associated with those
elections, and there is similarly no regulatory notice requirement. Ledbetter,
2022 MSPB 41, ¶ 10. Thus, the deadline cannot be waived under the third basis.
The deadline could potentially be subject to equitable estoppel or equitable
tolling. Id., ¶ 11. However, equitable tolling is a rare remedy that is to be
applied in unusual circumstances and generally requires a showing that the
appellant has been pursuing her rights diligently and some extraordinary
circumstances stood in her way. Id., ¶ 13. We find that the appellant has not met
this burden. The record reflects that the agency provided her with accurate notice
of her right to file a Board appeal and the deadline for doing so, and that she
received this notice before the effective date of the removal action. IAF, Tab 1
at 3, Tab 5 at 16-17. The appellant has not explained why she chose to disregard
the notice provided by the agency and rely instead on a statement on the obsolete
Board appeal form she filed. She also has not explained why she did not contact
the Board office identified in the agency’s notice to ask for clarification. The
appellant has not alleged that she was induced or tricked by the agency’s
misconduct into allowing the deadline to pass. Indeed, she did not respond to the
agency’s motion to dismiss or the Order to Show Cause and on review, she does
not address the timeliness issue at all. Under these circumstances, we find that
the appellant has not demonstrated that she acted with due diligence in pursuing
her appeal or that any extraordinary circumstances stood in the way of her timely
filing. See Ledbetter, 2022 MSPB 41, ¶ 13 (finding that equitable tolling was not
available even when the agency provided the appellant with an incorrect
statement of the deadline for filing an appeal). Therefore, assuming that
equitable relief is available to excuse the appellant’s untimely appeal, she has not
shown that she is entitled to it.
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NOTICE OF APPEAL RIGHTS 2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
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requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
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disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.