Anthony Salazar v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 11Docket No. SF-3330-18-0470-I-1
Anthony G. Salazar,
Appellant,
v.
Department of Veterans Affairs,
Agency.
September 13, 2024
Anthony G. Salazar , Pico Rivera, California, pro se.
Dévora Mas , Esquire, Houston, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) for failure to timely file a complaint with the
Department of Labor (DOL). For the reasons set forth below, we GRANT the
petition for review, VACATE the initial decision, and REMAND the appeal for
further adjudication in accordance with this Opinion and Order.
2
BACKGROUND
¶2 The appellant, a 10-point preference-eligible veteran, applied for two
positions advertised by the agency. Initial Appeal File (IAF), Tab 4 at 50, 52, 63,
75, 84. The first position was a GS-12 Support Services Supervisor position and
was advertised under vacancy announcement number 344-17-24-TS-1955448. Id.
at 56-61. The second position was a GS-7 Veterans Service Representative
(VSR) position advertised under vacancy announcement number
VB 1990725-FEB. Id. at 88-93. On August 9, 2017, the agency informed the
appellant that he had been rated ineligible for the Support Services Supervisor
position for failure to meet the specialized experience requirement. Id. at 63,
70-72. On October 4, 2017, the agency informed him that he had not been
selected for the VSR position. Id. at 95.
¶3 On October 1 or 2, 2017, the appellant filed a complaint with the Office of
Special Counsel (OSC) concerning his nonselection for the Support Services
Supervisor position. Id. at 21-36. He identified himself as a “ten-point veteran
preference applicant” and alleged that he had been improperly denied
consideration for the position in reprisal for whistleblowing or because his former
supervisor provided “negative feedback” about the appellant to the hiring
officials. 1 Id. at 31. Beginning on January 24, 2018, the appellant reached out to
OSC via email to request that it act on his complaint. Id. at 43. On
1
The appellant referenced this “negative feedback” in connection with his February 4,
2015 removal by the agency for unacceptable performance. Salazar v. Department of
Veterans Affairs, 2022 MSPB 42, ¶ 5; IAF, Tab 4 at 31; Salazar v. Department of
Veterans Affairs, MSPB Docket No. SF-1221-15-0660-W-1, Initial Appeal File, Tab 5
at 16. The appellant filed an individual right of action (IRA) appeal with the Board
challenging a number of agency actions, including his removal. Salazar, 2022 MSPB
42, ¶¶ 5-6. Following a Board-ordered remand of that appeal, an administrative judge
issued a remand initial decision denying corrective action. Salazar, 2022 MSPB 42,
¶¶ 1, 37; Salazar v. Department of Veterans Affairs, MSPB Docket No. SF-1221-15-
0660-B-1, Remand Initial Decision at 1, 48 (Mar. 15, 2024). The appellant has filed a
petition for review, which is currently pending before the Board. Salazar, MSPB
Docket No. SF-1221-15-0660-B-1, Remand Petition for Review File, Tab 1. The
disposition of the appellant’s IRA appeal does not impact the timeliness issue currently
before us.
3
February 13, 2018, the assigned investigator, who had been on military duty until
that time, responded to the appellant that he had returned to the office and would
turn to the appellant’s complaint shortly. Id. at 40-41. Eight days later, on
February 21, 2018, the investigator advised the appellant of OSC’s preliminary
findings. Id. at 40, 44. The appellant responded on February 23 and February 26,
2018. 2 Id. at 44.
¶4 By letter dated March 5, 2018, OSC informed the appellant that it was
closing its investigation into his complaint and provided him with notice of his
Board appeal rights. Id. at 44-45. The investigator acknowledged the appellant’s
claims that his former supervisor “willfully obstruct[ed] [him] with respect to
[his] right to compete for employment” in violation of 5 U.S.C. § 2302(b)(4) and
that the agency did not select the appellant in reprisal for filing complaints with
the Inspector General and OSC in violation of 5 U.S.C. § 2302(b)(9). Id. The
investigator also acknowledged that “[i]n [the appellant’s] response, [he] alleged
that [his] non-selections may have violated Veterans preference rules,” which the
investigator identified as a prohibited personnel practice arising under 5 U.S.C.
§ 2302(b)(11). Id. The investigator advised the appellant that “OSC defers”
allegations of VEOA violations to DOL and that he could file a complaint on that
claim with DOL. 3 Id. at 45.
2
Neither party has submitted into the record OSC’s February 21, 2018 determination
letter or the appellant’s February 2018 responses.
3
VEOA tasks DOL with investigating claims by a preference eligible that an agency
may have violated the claimant’s rights under any law or regulation relating to veterans’
preference. 5 U.S.C. § 3330a(b). However, the statute also amended 5 U.S.C. § 2302and made it a prohibited personnel practice to “knowingly take, recommend, or approve
any personnel action if the taking of such action would violate a veterans’ preference
requirement” or to “knowingly fail to take, recommend, or approve any personnel action
if the failure to take such action would violate a veterans’ preference requirement.”
Pub. L. No. 105-339, 112 Stat. 3187 (codified at 5 U.S.C. § 2302(b)(11)). OSC is
responsible for the investigation of alleged prohibited personnel practices. 5 U.S.C.
§ 1214. OSC and DOL have entered into a Memorandum of Understanding, submitted
into the record by the appellant, that prescribes the roles and responsibilities of the two
agencies in carrying out their obligations under the statute. IAF, Tab 4 at 14-19.
4
¶5 The same day that OSC issued this letter, the appellant filed a complaint
with DOL alleging that the agency violated his veterans’ preference rights in
connection with his nonselections. Id. at 47. Approximately 1 month later, DOL
informed the appellant that it had completed its investigation into his complaint
and found no violation of his rights under VEOA. Id. at 47-48. The letter
informed the appellant of his right to appeal DOL’s decision to the Board. Id.
at 48.
¶6 The appellant timely filed the instant VEOA appeal challenging his
nonselection for the two positions and requested a hearing on his appeal. IAF,
Tab 1 at 1-5. The administrative judge issued an order informing the parties of
the appellant’s burden of showing, as relevant here, that he timely filed his DOL
complaint within 60 days of the alleged VEOA violation or, if not, that
circumstances warranted equitable tolling of the deadline. IAF, Tab 3 at 5-6. The
order instructed the parties to file evidence and argument on those issues and
advised them that the record on timeliness would close in 3 weeks. Id. at 6-7.
¶7 After the parties responded and the record on timeliness closed, the
administrative judge issued an initial decision denying corrective action based on
the written record. IAF, Tabs 4, 6, Tab 13, Initial Decision (ID) at 2, 21. The
administrative judge concluded that the appellant established jurisdiction over his
VEOA appeal. ID at 10-11. The administrative judge nevertheless concluded
that the appellant failed to show that he timely filed his complaint with DOL
within 60 days of the challenged actions as required under 5 U.S.C.
§ 3330a(a)(2)(A) or that he was entitled to equitable tolling of the deadline. ID
at 11-21. Because the administrative judge concluded that there was no genuine
dispute of material fact regarding these dispositive issues, he denied corrective
action without holding the appellant’s requested hearing. ID at 1-2, 21.
¶8 The appellant has timely filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1, Tab 2 at 1 n.1. The agency has filed a
5
response to the petition for review, and the appellant has filed a reply. PFR File,
Tabs 3-4.
ANALYSIS
The 60-day time limit for filing a complaint with DOL is not jurisdictional and is
subject to equitable tolling.
¶9 The Board’s jurisdiction over VEOA claims arises under 5 U.S.C.
§ 3330a(d)(1). Shaver v. Department of the Air Force, 106 M.S.P.R. 601, ¶ 9
(2007). That provision states that “[i]f [DOL] is unable to resolve a complaint”
within a specified time period, “the complainant may elect to appeal the alleged
violation to the Merit Systems Protection Board.” 5 U.S.C. § 3330a(d)(1). The
“complaint” referred to in this provision is a VEOA complaint that the veteran
“must . . . file[] [with DOL] within 60 days after the date of the alleged
violation.” 5 U.S.C. § 3330a(a)(2)(A).
¶10 The administrative judge found that the 60-day deadline to file a complaint
in 5 U.S.C. § 3330a(a)(2)(A) is not jurisdictional. ID at 9. Without specifically
disputing the administrative judge’s finding, the agency states on review that the
“exhaustion requirement is a jurisdictional element of a VEOA appeal.” 4 PFR
File, Tab 3 at 5. We agree with the administrative judge.
¶11 Statutes setting forth time limitations for filing claims generally are not
jurisdictional unless Congress “clearly states” that they are. 5 Harrow v.
Department of Defense, 601 U.S. 480, 483-84 (2024). Here, the statutory
language of 5 U.S.C. § 3330a does not “plainly show that Congress imbued [the
rule] with jurisdictional consequences.” Id. at 484 (quoting United States v.
4
The parties do not otherwise dispute the administrative judge’s determination that the
Board has jurisdiction over this appeal, and we discern no basis to disturb that finding.
ID at 1, 7-11.
5
The U.S. Supreme Court has recognized that the deadline for filing an appeal from a
Federal district court decision in a civil case is an exception to this general rule.
Harrow v. Department of Defense, 601 U.S. 480, 488-89 (2024). That exception does
not apply here.
6
Wong, 575 U.S. 402, 409-12, 420 (2015)). Consistent with this line of cases, both
the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board
have concluded that the 60-day deadline set forth in 5 U.S.C.
§ 3330a(a)(2)(A) is not jurisdictional. Kirkendall v. Department of the Army,
479 F.3d 830, 835-36 & n.2 (Fed. Cir. 2007) (en banc); Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶¶ 8-13 (2009). We reaffirm that holding here.
¶12 Further, “nonjurisdictional limitations periods are presumptively subject to
equitable tolling.” Boechler, P.C. v. Commissioner of Internal Revenue, 596 U.S.
199, 209 (2022) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92,
94-96 (1990) (holding that once Congress waives the Government’s sovereign
immunity, the Court will presume that equitable tolling is available, and applying
the presumption to conclude that courts could equitably toll the requirement in
42 U.S.C. § 2000e-16(c) (1990) that “[w]ithin thirty days of receipt of notice of
final action . . . [by] the Equal Employment Opportunity Commission . . . a[]
[Federal] employee or applicant . . . may file a civil action”)). The Federal
Circuit and the Board have recognized this and concluded that equitable tolling
applies to 5 U.S.C. § 3330a(a)(2)(A). Kirkendall, 479 F.3d at 837-38, 841-42(finding that the deadline under section 3330a(a)(2)(A) would bar suit if equitable
tolling were not permitted and concluding that the deadline may be equitably
tolled); Garcia, 110 M.S.P.R. 371, ¶ 12 (recognizing the holding in Kirkendall
that the 60-day deadline in 5 U.S.C. § 3330a(a)(2)(A) may be equitably tolled);
5 C.F.R. § 1208.21(b) (providing that the 60-day deadline to file a VEOA
complaint with DOL may be equitably tolled). The parties have not disputed the
administrative judge’s determination that the 60-day deadline under 5 U.S.C.
§ 3330a(a)(1)(A) may be equitably tolled, and we agree with this conclusion for
the foregoing reasons. ID at 9.
7
The Board reviews de novo DOL’s determinations as to whether a VEOA
complaint was timely filed and whether to equitably toll the deadline.
¶13 DOL’s determination on the appellant’s VEOA complaint was silent as to
whether his complaint was timely filed or warranted equitable tolling. IAF, Tab 4
at 47-48. The administrative judge concluded that, notwithstanding DOL’s
silence and the implication that such silence amounted to a waiver of the
untimeliness of the appellant’s complaint, the Board had the authority to consider
whether DOL erred in tolling the deadline. ID at 14-17. On review, the appellant
argues that the administrative judge should not have reached the timeliness issue
because it was not addressed by OSC or DOL. PFR File, Tab 1 at 7. We
disagree. As explained below, the Board must review DOL’s timeliness and
equitable tolling decisions de novo.
¶14 The Federal Circuit is the Board’s reviewing court in VEOA appeals, and
the Board is bound to follow its precedential decisions. See Kirkendall v.
Department of the Army, 573 F.3d 1318, 1320-21 (Fed. Cir. 2009) (predicating
review of a Board decision on a VEOA claim on 28 U.S.C. § 1295(a)(9), which
conveys exclusive jurisdiction over final Board decisions to the Federal Circuit);
Oram v. Department of the Navy, 2022 MSPB 30, ¶¶ 6, 17 (holding that the
Federal Circuit’s precedential decision in a VEOA appeal was binding authority).
In Kirkendall, 479 F.3d at 834, DOL rejected the petitioner’s VEOA complaint as
untimely filed. The Board found that it was without authority to revisit DOL’s
determination not to waive the 60-day deadline. Id. On review, the Federal
Circuit disagreed, stating that “[b]ecause the question of whether
section 3330a(a)(2)(A) is subject to equitable tolling was at issue, the [B]oard had
the authority and the obligation to consider whether DOL’s action was in error.”
Id. at 835; see Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 388-90, 392-94,
398 (1982) (concluding that a Federal district court properly declined to dismiss a
class action lawsuit alleging sex discrimination against a private employer
because, although some of the class members did not timely file a charge of
8
discrimination with the EEOC, the timeliness requirement was “subject to waiver,
estoppel, and equitable tolling”).
¶15 Section 3330a(d)(1) of Title 5 of the U.S. Code provides that if DOL fails to
resolve a VEOA complaint within 60 days after the filing date, a complainant
“may elect to appeal the alleged violation to the Merit Systems Protection Board
in accordance with such procedures as the Merit Systems Protection Board shall
prescribe.” As this language makes clear, it is the VEOA violation, and not
DOL’s determinations, that the Board reviews. Shaver, 106 M.S.P.R. 601,
¶ 8 n.4. The Board has previously interpreted this language as providing that a
VEOA appeal before the Board is a de novo proceeding in which the Board is not
required to defer to DOL’s findings regarding the merits of the individual’s
complaint. Id. And a decision that an appellant did not fulfill the procedural
requirements for bringing an appeal to the Board is “on the merits.” Garcia,
110 M.S.P.R. 371, ¶ 13 & n.4; see Semtek International Inc. v. Lockheed Martin
Corporation, 531 U.S. 497, 501-03, 506 (2001) (explaining that “over the years
the meaning of the term ‘judgment on the merits’ ‘has gradually undergone a
change’” and “it has come to be applied to some judgments . . . that do not pass
upon the substantive merits of a claim” and that “‘adjudication on the merits’ . . .
is simply that, unlike a dismissal ‘without prejudice,’ the dismissal in the present
case barred refiling of the same claim” in the same court) (internal citations
omitted) (emphasis in original). 6
6
Although the Board denies corrective action on the merits of a VEOA appeal when it
determines that an appellant did not timely file his DOL complaint and is not entitled to
equitable tolling, Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4, “disposition on the merits” has
a different meaning for purposes of res judicata, see Semtek, 531 U.S. at 501-06(finding that a court’s decision to dismiss a case as barred by the applicable statute of
limitations did not have “claim-preclusive effect in other courts”); Muyco v. Office of
Personnel Management, 114 M.S.P.R. 694, ¶¶ 9-10 (2010) (concluding that the Board’s
determination that the Office of Personnel Management properly dismissed a request for
reconsideration as untimely is not a decision on the merits for purposes of applying the
doctrine of res judicata).
9
¶16 Consistent with its statutorily granted authority under section 3330a(d)(1) to
prescribe procedures for VEOA appeals, the Board has issued regulations
regarding such appeals. 5 C.F.R. §§ 1201.57(a)(2), 1208.21-1208.26. These
regulations state that the Board reviews the merits of a VEOA appeal for
preponderant evidence. See 5 C.F.R. § 1201.57(c)(4). This burden of proof is
synonymous with de novo review. See Norris v. Securities and Exchange
Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (interpreting the language in
5 U.S.C. § 7701(c)(1) that the Board reviews a chapter 75 adverse action to
determine “if the agency’s decision . . . is supported by a preponderance of the
evidence” as requiring that the Board review the merits of the agency’s action de
novo); Licausi v. Office of Personnel Management, 350 F.3d 1359, 1364 (Fed.
Cir. 2003) (concluding that a Board regulation placing the burden on an appellant
to prove by preponderant evidence entitlement to retirement benefits “makes clear
that the appeal proceeding before the Board [challenging a reconsideration
decision by the Office of Personnel Management to deny benefits] constitutes a
de novo proceeding”).
¶17 The regulation at 5 C.F.R. § 1208.21(a) reiterates the statutory exhaustion
requirement and cites the 60-day deadline for filing a DOL complaint. Even
when the Board originally contemplated adopting this timeliness provision, its
Federal Register notice did not suggest any deference to DOL’s timeliness
findings. See Practices & Procedures for Appeals Under the Uniformed Services
Employment and Reemployment Rights Act & the Veterans Employment
Opportunities Act, 65 Fed. Reg. 5410-01, 5411 (Feb. 4, 2000) (“VEOA
establishes statutory filing time limits for each stage of the redress procedure. . . .
VEOA does not provide for waiver of any of its statutory filing time limits for
good cause.”).
¶18 The Board later added 5 C.F.R. § 1208.21(b) to reflect the ruling in
Kirkendall, 479 F.3d 830, that the 60-day deadline for filing a VEOA complaint is
subject to equitable tolling. Practices & Procedures, 77 Fed. Reg. 33663-01,
10
33670, 33681 (June 7, 2012). Section 1208.21(b) states that the 60-day filing
deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) “is subject to the doctrine of
equitable tolling, which permits the Board to extend the deadline where the
appellant, despite having diligently pursued his or her rights, was unable to make
a timely filing.” By stating that equitable tolling “permits the Board to extend the
deadline,” this provision plainly contemplates that the Board will make its
determination regarding tolling independent of DOL’s findings on the issue.
¶19 Before, and even after, the 2007 decision in Kirkendall and the Board’s
2012 Federal Register notice recognizing the import of Kirkendall, the Board
issued decisions suggesting that it would defer to DOL regarding timeliness and
waiver; in some instances, the Board found such deference appropriate even when
DOL had only implicitly considered the issue. See, e.g., Gingery v. Department
of the Treasury, 119 M.S.P.R. 43, ¶ 19 (2012) (suggesting that the Board can
deny corrective action based on the untimeliness of a DOL complaint only if DOL
has not recognized the timeliness issue, excused the appellant’s lateness, and
investigated the substance of the complaint); Alegre v. Department of the Navy,
118 M.S.P.R. 424, ¶ 16 n.3 (2012) (not addressing the issues of timeliness or
waiver on the assumption that, because DOL addressed an untimely VEOA
complaint on the merits, DOL had elected to waive the timeliness requirement);
Letchworth v. Social Security Administration, 101 M.S.P.R. 269, ¶ 4 n.2 (2006)
(concluding that an administrative judge erred in dismissing a VEOA appeal
based on an appellant’s untimely filed DOL complaint because, as relevant here,
DOL waived any timeliness issue by issuing a decision on the merits); Waddell v.
U.S. Postal Service, 94 M.S.P.R. 411, ¶ 11 (2003) (determining that the Board
lacked the authority to review DOL’s determination that a VEOA complaint was
timely filed or, if not, to waive the deadline) . In conducting de novo review, the
Board does not defer to DOL’s findings, regardless of whether they are implicit or
explicit. Shaver, 106 M.S.P.R. 601, ¶ 8 n.4.; see Elias v. Department of Defense,
114 F.3d 1164, 1166-67 (Fed. Cir. 1997) (explaining that when the Board
11
conducts de novo proceedings, it does not defer to an agency’s decision not to
extend a deadline). We overrule prior Board decisions that conditioned Board
review of the timeliness and equitable tolling of a DOL complaint on whether
DOL had addressed the issue.
The administrative judge properly concluded that the appellant’s VEOA
complaint was untimely filed.
¶20 On review, the appellant reasserts that his DOL complaint should be
deemed timely filed in October 2017, when he filed his OSC complaint as to his
nonselection for the Support Services Supervisor position. 7 PFR File, Tab 1 at 7;
IAF, Tab 4 at 5-6, 14, 17. We affirm the administrative judge’s finding that the
appellant untimely filed his DOL complaint.
¶21 As the administrative judge correctly observed, it is undisputed that the
appellant learned that he was not selected for a Support Services Supervisor
position on August 9, 2017, and that he was not selected for the VSR position on
October 4, 2017. ID at 13; IAF, Tab 4 at 63, 95; PFR File, Tab 1 at 6-7.
Therefore, his March 5, 2018 complaint to DOL was untimely filed by over
4 months and over 3 months, respectively. ID at 13. Further, although the
appellant argues that he timely filed his DOL complaint in the wrong forum, we
agree with the administrative judge that this assertion implicates equitable tolling
rather than the timeliness of the complaint. PFR File, Tab 1 at 7; see Kerr v.
Merit Systems Protection Board, 908 F.3d 1307, 1312 (Fed. Cir. 2018)
(recognizing that it may be appropriate to equitably toll a filing deadline when a
7
To the extent that the appellant argues on review that the administrative judge erred by
raising the timeliness issue sua sponte, we disagree. PFR File, Tab 1 at 7. An
administrative judge has broad authority to control the proceedings before him,
including the authority to ensure that the record on significant issues is fully developed
and to adjudicate the case. 5 C.F.R. § 1201.41(b)(5)(ii)-(iii), (9); see Lopes v.
Department of the Navy, 119 M.S.P.R. 106 (2012) (recognizing that an administrative
judge has broad discretion to control the proceedings before him); 5 C.F.R.
§ 1201.115(e) (stating that, although the Board generally only considers issues raised by
the parties on review, it reserves the authority to consider any issue in an appeal before
it).
12
party files “in the wrong forum”) (citing, among other cases, Irwin, 489 U.S. at 96
(providing examples of situations in which tolling might be appropriate) (citations
omitted), and Burnett v. New York Central Railroad Company , 380 U.S. 424,
424-26, 434-35 (1965) (concluding that a Federal district court erred by not
tolling the filing period for an untimely complaint when the plaintiff had
previously mistakenly filed his complaint in state court before the deadline
passed)); Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶¶ 8-9, 13-14 (2009)
(finding that it was inappropriate to equitably toll an untimely filed VEOA
complaint when the appellant did not show, as relevant here, that he timely raised
his veterans’ preference claim in another forum). Accordingly, we affirm the
administrative judge’s finding that the appellant did not timely file his DOL
complaint.
¶22 On review, the appellant argues that the administrative judge should have
granted him a hearing on the timeliness issue. PFR File, Tab 1 at 6, Tab 3 at 7-8.
VEOA appellants do not have an unconditional right to a hearing before the
Board. Oram, 2022 MSPB 30, ¶ 9; 5 C.F.R. § 1208.23(b). Instead, the Board has
the authority to decide a VEOA appeal on the merits, without a hearing, when
there is no genuine dispute of material fact and one party must prevail as a matter
of law. Oram, 2022 MSPB 30, ¶ 9.
¶23 As addressed above, we agree with the administrative judge that
determinations regarding the timeliness of a DOL complaint and whether to
equitably toll the deadline are determinations on the merits and thus may be
decided without a hearing if there is no genuine dispute of material fact. ID
at 1-2, 11-12; see Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4. Because there is no
factual dispute over the date the appellant filed his DOL complaint or the dates he
received notice that he had not been selected for the two positions, we discern no
error by the administrative judge in finding, based on the written record, that the
appellant untimely filed his DOL complaint.
13
The administrative judge should have held the appellant’s requested hearing on
the issue of equitable tolling as to the Support Services Supervisor position .
¶24 The administrative judge found that the appellant did not establish a dispute
of material fact that would entitle him to a hearing on the issue of whether the
delay in filing his DOL complaint should be equitably tolled. ID at 13-21. In
doing so, he concluded that the appellant had not raised his VEOA claims with
OSC until late February 2018. ID at 18-21. The appellant challenges this finding
on review only as to the Support Services Supervisor vacancy. 8 PFR File, Tab 1
at 7-9. As explained below, we disagree with the administrative judge’s finding
that the appellant did not establish a genuine dispute of material fact as to the
Support Services Supervisor position and remand for a hearing on the question of
whether the delay in filing the complaint as to the nonselection for that position
should be equitably tolled.
¶25 Filing a claim in the wrong court may be a basis to equitably toll a deadline
when “the claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period.” Kerr, 908 F.3d at 1313 (quoting
Irwin, 498 U.S. at 96 & n.3). In the analogous circumstance of a plaintiff who
filed a lawsuit in a court that had jurisdiction over his claim but was not the
correct venue, the U.S. Supreme Court found that the statute of limitations was
tolled during the period that the plaintiff’s action was pending before the wrong
court. Burnett, 380 U.S. at 427-28, 434-35.
¶26 The appellant filed his OSC complaint within 60 days of learning of his
nonselection for the Support Services Supervisor position. IAF, Tab 4 at 21, 63.
8
The only evidence in the record that the appellant raised the VSR vacancy to OSC is
OSC’s March 5, 2018 letter advising him of its final decision to close its file and
identifying the VSR vacancy for this first time. IAF, Tab 4 at 44-45. He could not have
raised his nonselection for the VSR vacancy in October 2017, when he filed his OSC
complaint, because he did not learn of it until 2 to 3 days later. Id. at 21, 95. Further,
OSC did not begin processing his complaint until February 2018 . IAF, Tab 1 at 11,
Tab 4 at 7, 40-43. Thus, the record supports the administrative judge’s finding that,
more likely than not, the appellant first raised the VSR vacancy to OSC in February
2018.
14
In a sworn statement below, the appellant asserted that he raised a VEOA claim in
his OSC complaint. Id. at 4, 7. The appellant’s statement relied on his OSC
complaint; therefore, we look to the complaint itself to determine if the appellant
raised a violation of his veterans’ preference rights. Id. at 7, 21-36. In his
complaint, the appellant identified himself “[a]s a ten-point veteran preference
applicant” and asserted that he was “denied being considered for a position for
which [he] believe[d] [he was] qualified.” Id. at 25-26, 31. Specifically as to his
qualifications, he asserted that the agency failed to account for relevant job
experience that he listed on the résumé that he submitted with his job application
for the Support Services Supervisor position. Id. at 25-26, 65, 70-71. The Board
has jurisdiction over an appellant’s claim that a hiring agency did not comply
with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to “adequately
consider[]” his “experience and work history” when reviewing his application.
Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1361, 1365-67 (Fed.
Cir. 2016). This scenario is precisely what the appellant alleged occurred in his
OSC complaint. IAF, Tab 4 at 25-26, 31.
¶27 We recognize that, as the administrative judge observed, the appellant went
on to allege that the agency did not credit his experience in reprisal for
whistleblowing. ID at 17-19; IAF, Tab 4 at 26, 31. Further, the appellant did not
draw a connection in his OSC complaint between his status as a preference
eligible and the agency’s decision not to hire him. IAF, Tab 4 at 25-26, 31.
However, we disagree with the implication that the appellant was required to
specifically allege that the agency violated VEOA or his veterans’ preference
rights in his OSC complaint or cite to 5 U.S.C. § 3311(2) and 5 C.F.R.
§ 302.302(d).
¶28 The purpose of 5 U.S.C. § 3330a is “to assist veterans in obtaining gainful
employment with the federal government and to provide a mechanism for
enforcing this right.” Kirkendall, 479 F.3d at 841. The Board has declined to
find that an appellant failed to state a claim under VEOA when he did not identify
15
the statute or regulation that he believed an agency violated, as required under
5 C.F.R. § 1208.23(a)(3). Young v. Federal Mediation and Conciliation Service ,
93 M.S.P.R. 99, ¶ 7 (2002), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Similarly, in
the context of a VEOA claim, the Board has favorably analogized to the rule
applicable to claims arising under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) that a n appellant can establish
Board jurisdiction without making explicit reference to USERRA or any of its
provisions, so long as the appellant articulates facts sufficient to assert a claim.
Id., ¶ 6 (citing Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1485
(Fed. Cir. 1998) (finding that an appellant established jurisdiction over a
USERRA appeal based on her factual allegations before the Board even though
she did not “mention USERRA or . . . make any allegation of discrimination”
based on her uniformed service)). By alleging that he was a preference eligible
and that the agency’s conduct in connection with his nonselection violated an
identifiable veterans’ preference requirement, the appellant raised a VEOA claim
in his OSC complaint as to the Support Services Supervisor job. Therefore, we
remand the appeal to the administrative judge for further proceedings, including
the appellant’s requested hearing, and a determination as to whether the
circumstances here warrant equitably tolling the deadline. IAF, Tab 1 at 2.
¶29 As to the VSR position, the administrative judge determined that the
appellant did not raise a genuine dispute of material fact in support of his
argument that the unavailability of the OSC investigator handling the appellant’s
complaint caused him to miss his DOL complaint filing deadline. ID at 17,
19-20; IAF, Tab 4 at 7, 40-43. The appellant disputes that finding on review.
PFR File, Tab 1 at 8-9. For the reasons explained below, we agree with the
administrative judge.
¶30 The appellant has the burden of establishing that equitable tolling is
warranted under the circumstances. Ledbetter v. Department of Veterans Affairs,
2022 MSPB 41, ¶ 12. Equitable tolling is a rare remedy that is to be applied in
16
unusual circumstances and generally requires a showing that the appellant has
been pursuing his rights diligently and some extraordinary circumstances stood in
his way. Id., ¶ 8. One of the bases for equitably tolling a deadline is if an agency
misleads an appellant into missing a deadline by providing inaccurate
information. Hemann v. Department of Veterans Affairs, 2022 MSPB 46, ¶¶ 1, 7,
9-20 (finding that the deadline for filing the appeal would be equitably tolled
when the appellant’s former employing agency inaccurately advised him that he
had 30 days, instead of 10 business days, to appeal his removal under 38 U.S.C.
§ 714). Here, the appellant does not state that OSC provided him with inaccurate
information. Rather, his claim is that the OSC investigator was not available to
advise the appellant to file a DOL complaint within 60 days of his nonselection.
IAF, Tab 4 at 7. We agree with the administrative judge that the appellant’s
assertions do not provide a basis for concluding that he exercised due diligence or
that extraordinary circumstances stood in his way. 9
¶31 Accordingly, we remand this case to the Western Regional Office. On
remand, the administrative judge shall allow the parties to submit further
evidence and argument and hold a hearing on the issue of whether to equitably
toll the appellant’s untimely filed DOL complaint as to his nonselection for the
Support Services Supervisor position. The administrative judge shall then issue a
remand initial decision. In his remand initial decision, the administrative judge
should incorporate his findings that the appellant’s DOL complaint was untimely
filed and that he did not establish a dispute of material fact entitling him to
9
A factual dispute is “material” for purposes of creating a genuine dispute of material
fact entitling an appellant to a hearing on the merits of his VEOA appeal if, under the
governing law, its resolution could affect the outcome. Oram, 2022 MSPB 30, ¶ 9 &
n.5. The appellant’s assertions here, even if true, do not provide a basis for tolling the
60-day deadline as to the VSR position and, therefore, are not material to that issue.
The administrative judge essentially found as much. ID at 19-21. To the extent that the
administrative judge found, in the alternative, that the appellant’s statements were not
credible, that determination was unnecessary to his decision not to equitably toll the
deadline. ID at 18-20. Therefore, we do not address the appellant’s arguments on
review contesting the administrative judge’s credibility findings. PFR File, Tab 1 at 8.
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equitable tolling of his untimely complaint as it concerns the VSR position, as
modified to eliminate his reliance on credibility determinations.
ORDER
¶32 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Opinion and Order.
Gina K. Grippando
Clerk of the Board
Washington, D.C.