David Hendy v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID M. HENDY, DOCKET NUMBER
Appellant, CH-3330-18-0110-I-1
v.
DEPARTMENT OF VETERANS DATE: May 3, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David M. Hendy , Chicago, Illinois, pro se.
Zane Perry Schmeeckle , Esquire, Kansas City, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
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). 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 or regulation or the erroneous application of the law to
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. However, for the reasons
discussed below, we VACATE the initial decision, DISMISS the appeal as
untimely filed, and FORWARD the appellant’s additional, unadjudicated VEOA
claim to the regional office for docketing as a new VEOA appeal.
BACKGROUND
At an unspecified time, the appellant filed a VEOA complaint with the
Department of Labor (DOL), which designated his complaint as claim number
IL-2018-001-VPH. Initial Appeal File (IAF), Tab 1 at 4-5. In a letter
dated November 14, 2017, a DOL investigator informed the appellant that his
veterans’ preference complaint had been closed because it was not filed within
the statutory deadline of 60 days from the date of the alleged violation. Id.On December 14, 2017, the appellant filed this Board appeal seeking corrective
action under VEOA, and he requested a hearing. Id. at 1-3.
The administrative judge apprised the appellant of the elements and
burdens of proving jurisdiction, exhaustion, and timeliness regarding a VEOA
appeal, and she ordered the parties to respond on those issues. IAF, Tab 3.
Regarding the timeliness of the Board appeal, she informed the appellant that a
VEOA appeal must be filed with the Board no later than 15 calendar days after
the date on which he received written notice from the Secretary of Labor that
DOL had not resolved his complaint. Id. at 5. She further explained that VEOA
3
filing deadlines may not be waived for good cause, but they are subject to
equitable tolling. Id. She ordered the appellant to file a statement with
supporting documentation on the timeliness issue, including whether the filing
deadlines should be equitably tolled. Id. at 6. The parties responded. IAF, Tabs
4, 9-14.
Without holding the requested hearing, the administrative judge issued an
initial decision denying the appellant’s request for corrective action under VEOA.
IAF, Tab 15, Initial Decision (ID) at 1, 6. Specifically, she found that the
appellant failed to nonfrivolously allege that his DOL complaint was filed within
the 60-day statutory time limit or to allege any basis for equitably tolling the
filing deadline. ID at 4-6. She further found that the appellant failed to
nonfrivolously allege a VEOA claim. ID at 6 n.5.
The appellant has filed a petition for review, and he has included
supplemental documentation. Petition for Review (PFR) File, Tabs 7-32. 2
The agency has filed a response, PFR File, Tab 35, to which the appellant has
replied, PFR File, Tab 36. 3
2
The appellant’s initial petition for review was untimely filed by 1 day. PFR File,
Tab 1, Tab 2 at 2. He has filed a motion to waive the time limit for filing a petition for
review based on illness. PFR File, Tab 34. We find good cause to grant his motion.
See Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998) (explaining that the
Board will find good cause for waiver of its filing time limits when a party
demonstrates that he suffered from an illness that affected his ability to file on time);
see also 5 C.F.R. § 1201.114(g). We further find that the agency has not alleged or
shown that it would be prejudiced by a waiver of the time limit. See Moorman v.
Department of the Army, 68 M.S.P.R. 60, 63 (1995) (explaining that, if good cause has
been demonstrated, then the Board determines whether the agency has shown that it
would be prejudiced by a waiver of the time limit), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
3
The agency has filed a motion for leave to file an additional pleading addressing the
appellant’s allegedly new claims raised in his reply. PFR File, Tab 37; see 5 C.F.R.
§ 1201.114(a)(5). Alternatively, the agency requests the Board to strike such claims for
failure to comply with 5 C.F.R. § 1201.114(a)(4). PFR File, Tab 37. We deny the
agency’s alternative request because the appellant’s reply elaborates on his claim
concerning a new DOL complaint (IL-2018-008-VPH) that he previously set forth in his
petition for review. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11, 18-19; cf. Elder v.
Department of the Air Force, 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider
4
DISCUSSION OF ARGUMENTS ON REVIEW
For the following reasons, we vacate the initial decision denying the
appellant’s request for corrective action under VEOA, and we dismiss the appeal
as untimely filed. See, e.g., Williamson v. U.S. Postal Service, 106 M.S.P.R. 502,
¶¶ 6-8 (2007) (addressing the merits of the appellant’s request for corrective
action after first determining that his VEOA appeal was timely filed). Because it
is unclear from the existing record what alleged veterans’ preference violations
the appellant raised before DOL as part of claim number IL-2018-001-VPH and
when he filed such complaint, we are unable to determine whether his DOL
complaint was timely filed within the 60-day time limit set forth at 5 U.S.C.
§ 3330a(a)(2)(A). See Gingery v. Office of Personnel Management, 119 M.S.P.R.
43, ¶ 16 (2012) (explaining that the statute requires that the complaint be filed
with DOL within 60 days after the date of the alleged violation of veterans’
preference rights). In particular, although the appellant alleged that he called the
DOL hotline and was sent a link to file a claim on August 28, 2017, he did not
explain when he filed a complaint. IAF, Tab 4 at 28. Further, the appellant
provided evidence of a DOL complaint dated October 20, 2017, in which he
alleged that he was denied reinstatement on October 16, 2017, in violation of his
veterans’ preference rights. 4 IAF, Tab 14 at 9-19. In addition, the appellant
submitted a copy of another DOL closeout letter dated January 19, 2018,
the agency’s argument that it raised for the first time in its reply). Further, we deny the
agency’s motion because we have not considered the appellant’s allegations and
evidence concerning the new DOL complaint (IL-2018-008-VPH), which is the subject
of a separate VEOA appeal docketed as Hendy v. Department of Veterans Affairs,
MSPB Docket No. CH-3330-18-0514-I-1. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11,
18-19; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
(observing that the Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence); Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board generally will not
grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
4
Although part of the DOL complaint is also dated October 25, 2017, we need not
resolve this discrepancy. IAF, Tab 14 at 9-13.
5
concerning case number IL-2018-002-VPH. IAF, Tab 11 at 22-23. The letter
indicates that, on November 21, 2017, the appellant timely filed a VEOA
complaint with DOL regarding his alleged nonselection for three positions. Id.The administrative judge did not address either the DOL complaint
dated October 20, 2017, or the DOL close-out letter dated January 19, 2018.
An appellant has the burden of proving by preponderant evidence the
timeliness of his Board appeal. 5 C.F.R. § 1201.57(c)(2). Pursuant to 5 U.S.C.
§ 3330a(d)(1)(B), a complainant must file a VEOA appeal with the Board within
15 days after he receives written notification from DOL that his VEOA complaint
has not been resolved. See Gingery v. Department of the Treasury, 110 M.S.P.R.
83, ¶ 23 (2008). Failure to meet this 15-day statutory filing deadline will result
in the dismissal of the VEOA appeal on timeliness grounds unless the appellant
can establish a basis for equitable tolling. See id., ¶¶ 24-25 (remanding the
VEOA appeal for the administrative judge to provide the parties an opportunity to
address whether the 15-day filing deadline should be equitably tolled); see also
Williamson, 106 M.S.P.R. 502, ¶ 6 (explaining that the 15-day filing deadline
cannot be waived and that the Board must dismiss an appeal filed beyond that
deadline, but also that the deadline is subject to equitable tolling) .
As an initial matter, we find that the appellant has received clear notice of
the precise timeliness issue in this appeal and a full and fair opportunity to
litigate it. See Wright v. Department of Transportation, 99 M.S.P.R. 112,
¶¶ 12-13 (2005) (finding that the appellant was entitled to clear notice of the
precise timeliness issue in the appeal and a full and fair opportunity to litigate it).
IAF, Tab 3 at 5-6, Tab 9 at 11-12
After reviewing the parties’ evidence and argument on the timeliness issue,
we find that the appellant has failed to prove that he timely filed his VEOA
appeal within the 15-day statutory deadline. The appellant’s submission on
review of an email dated November 15, 2017, establishes his receipt of the DOL
6
close-out letter dated November 14, 2017. 5 PFR File, Tab 14 at 24-26. In his
email to the DOL investigator, the appellant states that he received the letter in
person on November 15, 2017, and that he contests the dismissal of his VEOA
complaint based on the 60-day statutory deadline. Id. Moreover, we find that the
DOL close-out letter constitutes sufficient written notice to trigger the start of the
15-day filing period because the letter clearly informed the appellant that his case
had been closed. IAF, Tab 1 at 4-5; see 5 U.S.C. § 3330a(c)(2), (d)(1)(B);
see also Shaver v. Department of the Air Force, 106 M.S.P.R. 601, ¶ 4 n.2 (2007)
(stating that the 15-day deadline to file a Board appeal does not begin to run until
the complainant receives notice, in writing, that DOL’s efforts to investigate and
resolve the complaint did not result in resolution of the complaint). Thus, the
appellant untimely filed his Board appeal by facsimile on December 14, 2017,
beyond the 15-day statutory deadline. IAF, Tab 1; see 5 C.F.R. § 1201.4(l).
Moreover, we find that the appellant has not established any of the limited
bases for equitably tolling the deadline. See Gingery, 110 M.S.P.R. 83, ¶ 24.
The DOL close-out letter notified the appellant that he had the right to file a
Board appeal within 15 calendar days from the date of his receipt of the letter.
IAF, Tab 1 at 4-5. To the extent the appellant argues that his medical conditions
warrant equitable tolling, we find that this does not provide a basis for applying
equitable tolling in this matter. PFR File, Tab 7 at 18-19; see Garcia v.
Department of Agriculture, 110 M.S.P.R. 371, ¶¶ 5-6 (2009) (discerning no error
in the administrative judge’s determination that the appellant’s medical
conditions did not justify applying equitable tolling to a VEOA filing deadline).
Accordingly, we dismiss this VEOA appeal as untimely filed. 6
Further, we forward the appellant’s additional, unadjudicated VEOA claim
(based on a DOL close-out letter dated January 19, 2018, concerning case number
5
The parties’ remaining submissions on review do not address the dispositive
timeliness issue. PFR File, Tabs 7-32, 35-36.
6
We deny the appellant’s request for a stay to return to work. PFR File, Tab 7 at 27.
7
IL-2018-002-VPH) to the regional office for docketing as a new VEOA appeal. 7
IAF, Tab 11 at 22-23.
NOTICE OF APPEAL RIGHTS 8
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.
7
Although we make no jurisdictional or timeliness findings concerning the appellant’s
new VEOA appeal, we acknowledge that he filed the DOL close-out letter
on January 25, 2018, in response to the administrative judge’s jurisdictional order.
IAF, Tab 11 at 22-23; see Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96
(1990) (explaining that the U.S. Supreme Court had allowed equitable tolling when the
complainant “has actively pursued his judicial remedies by filing a defective pleading
during the statutory period”).
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions to provide a comprehensive
summary of all available review options. As indicated in the notice, the Board cannot
advise which option is most appropriate in any matter.
8
(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:
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
9
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
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:
10
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
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. 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
11
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.
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.