Richard Lee v. Department of Commerce ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD LEE, DOCKET NUMBER
Appellant, NY-3330-21-0040-I-1
v.
DEPARTMENT OF COMMERCE, DATE: October 9, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard Lee , New York, New York, pro se.
David M. Brown , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action pursuant to 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We MODIFY the initial decision to
supplement the administrative judge’s analysis of equitable tolling, still finding
that the appellant did not prove that equitable tolling should be applied and
denying his request for corrective action. Except as expressly MODIFIED by this
Final Order, we AFFIRM the initial decision.
BACKGROUND
The appellant applied for a Geographer position with the agency. Initial
Appeal File (IAF), Tab 1 at 6, Tab 7 at 22-29. In his application, the appellant
submitted a statement of service in lieu of a DD-214 because he was on active
military duty and he did not have a DD-214. IAF, Tab 1 at 6. At some point, the
appellant learned that he was not selected for the position. 2 Id.On December 23, 2020, the appellant filed a complaint with the Department
of Labor (DOL) alleging that the agency violated his rights under VEOA when it
failed to consider his application because he provided a statement of service in
lieu of a DD-214. IAF, Tab 1 at 6, 8-11. On January 6, 2021, DOL issued a
2
There is a discrepancy in the record as to when the appellant learned of the
nonselection. For example, the appellant asserted that he learned of the nonselection on
July 7, 2020, IAF, Tab 1 at 4, but the agency stated that he learned of the nonselection
on February 25, 2020, IAF, Tab 7 at 5. We need not resolve this discrepancy because,
even if we used the appellant’s date, it does not change the outcome.
3
letter dismissing the appellant’s complaint because it was not filed within 60 days
from the date of the alleged violation. Id. at 10-11.
The appellant filed an appeal with the Board. IAF, Tab 1. In his initial
appeal, the appellant stated that he made inquiries to various agencies regarding
the nonselection, but he received no response. Id. at 6. Specifically, he stated
that he filed a service request with the DOL National Contact Center on
September 1, 2020, but he did not receive a response until December 11, 2020; he
emailed two Veterans Employment and Training Service (VETS) staff persons;
and he emailed vet_employment@opm.gov on July 7, 2020, and November 5,
2020, but he did not receive a response. Id. The administrative judge issued an
order, noting that the Board may not have jurisdiction over the appeal and
instructing the appellant to file a submission showing, among other things, “the
date [he] believe[d] the agency violated [his] veterans’ preference rights, the date
[he] filed a complaint with the Secretary of Labor, and the date [he] received
written notice, if any, from the Secretary.” IAF, Tab 4 at 6-7. The order
explained the conditions under which equitable tolling can be established,
instructed the appellant to show that the deadline should be equitably tolled if he
was late in filing with the Secretary, and directed him to produce any
documentation supporting his claims. Id. at 5-6. The appellant did not file a
response. The agency filed a motion to dismiss the appeal for lack of
jurisdiction. IAF, Tab 7. Without holding a hearing, the administrative judge
issued an initial decision denying corrective action, finding that there was no
genuine dispute that the appellant did not file a complaint with the Secretary of
Labor within 60 days of the alleged violation and concluding that he did not
establish that equitable tolling should be applied. IAF, Tab 8, Initial Decision
(ID) at 4-7.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In his petition for review,
the appellant alleges that the administrative judge failed to consider his argument
4
that equitable tolling should apply based on his contacts with the DOL National
Contact Center, two “VETS labor representatives,” and vets@doc.gov. PFR File,
Tab 1 at 3-4. The appellant states that equitable tolling should apply because of
the COVID-19 pandemic and because he was misled. Id. at 4. He also disputes
the merits of whether he was entitled to veterans’ preference in this hiring action.
Id. at 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The parties do not appear to dispute that the appellant’s December 23, 2020
complaint with the Secretary of Labor was untimely filed. Nonetheless, we must
consider whether equitable tolling should apply to excuse the appellant’s
untimely filing. See Kirkendall v. Department of the Army, 479 F.3d 830, 835
(Fed. Cir. 2007) (en banc) (stating that the Board has the authority and the
obligation to consider whether DOL’s finding that a VEOA complaint was
untimely was erroneous); Garcia v. Department of Agriculture, 110 M.S.P.R.
371, ¶¶ 8-13 (2009) (applying the holding in Kirkendall and stating that the
60-day time limit for filing a complaint with the Secretary of Labor under
5 U.S.C. § 3330(a)(2)(A) is not jurisdictional and is subject to equitable tolling).
The Supreme Court has stated that equitable tolling should be applied only
“sparingly.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).
Equitable tolling may apply “where the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period” or “where the
complainant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass.” Id. (internal citations omitted). Equitable
tolling is a rare remedy that is to be applied in unusual circumstances and
generally requires a showing that the litigant has been pursuing his rights
diligently and some extraordinary circumstances stood in his way. Heimberger v.
Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014).
5
On review, the appellant argues that equitable tolling should apply because
he was “misled” when he contacted multiple agencies that failed to respond to
him or told him that he had “no further appeal rights.” PFR File, Tab 1 at 4. The
appellant attaches to his petition for review an email chain with vets@doc.gov,
beginning June 29, 2020. 3 PFR File, Tab 1 at 6-7. His June 29, 2020 email stated
that the agency improperly found him ineligible for the position and inquired as
to the propriety of the agency’s decision. Id. at 6. After some correspondence
with an unidentified agency official, 4 the appellant, on August 5, 2020, requested
information about with whom to file a formal complaint. Id. The unidentified
agency official asked for a copy of the front page of the vacancy announcement
and offered to contact the Human Resources Specialist to get clarification, but the
appellant indicated that he had already spoken to and emailed the Branch Chief
and the Human Resources Specialist, and he stated that he wanted to talk to
someone else to see if they were correct. Id. at 7. Ultimately, the agency official
stated that he did not know anyone else to whom he could refer the appellant. Id.The Board generally will not consider evidence submitted for the first time
with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The
appellant had the opportunity to develop the record before the administrative
judge; however, he did not respond to the order requiring him to provide
additional evidence and argument, and he has not argued that the June 29, 2020
email chain was unavailable prior to the close of record before the administrative
3
The date of this email undermines the appellant’s assertion that he did not learn of the
nonselection until July 7, 2020. However, as noted above, we need not resolve this
discrepancy.
4
The email chain that the appellant provides on review includes numerous references to
“[Quoted text hidden]” in the appellant’s emails and the agency official’s emails. Id. at
6-7. We do not understand what this bracketed language means in this context, but it
seems to show that the appellant did not provide the full chain of correspondence
between him and the agency official.
6
judge. Even if we were to consider this email chain, we find that the appellant
did not prove that the agency engaged in any misrepresentation or misleading
statements that caused him to miss the statutory deadline. See, e.g., Frazer v.
United States, 288 F.3d 1347, 1353-54 (Fed. Cir. 2002) (noting “equitable tolling
is available only when the lateness is attributable, at least in part, to misleading
government action”). Cf. Heimberger, 121 M.S.P.R. 10, ¶ 12 (finding that
confusing language in a letter drafted by the Office of Special Counsel, which
notified the appellant of two options without informing her of the consequences
of electing one over the other, could have affirmatively misled her).
The appellant reiterates on review that he contacted the DOL National
Contact Center. PFR File, Tab 1 at 4. He explained in his initial appeal that he
filed a “service request” with the DOL National Contact Center on September 1,
2020, but he did not hear back until December 11, 2020, when he was directed “to
the proper resource.” IAF, Tab 1 at 6. Here, too, the appellant has not described
or provided a copy of any misleading information that the DOL National Contact
Center provided to him. We further find that the appellant failed to exercise due
diligence because he did not, in any way, follow up with the DOL in the more
than 3 months between September 1, 2020, and December 11, 2020.
Finally, the appellant states that he emailed two VETS staff members, and
he provides their email addresses. PFR File, Tab 1 at 4. However, the appellant
has not explained who the individuals are, why he emailed them in the first place,
on what dates he emailed them, or the contents of his emails. Id. He also does
not state if he received any response from either of these individuals or the
contents of any such responses.
In conclusion, the appellant has not proven that he was misled, induced, or
tricked into missing the statutory deadline; he did not offer any evidence to
support his contention that he was told by any of these contacts that he had “no
further appeal rights;” and we find that he has not proven that equitable tolling
should be applied on this basis. Moreover, he has not described or provided any
7
document that would lead us to conclude that he filed a defective pleading within
the statutory period. Accordingly, we affirm the administrative judge’s finding
that equitable tolling should not apply and her decision to deny corrective action.
We have considered the appellant’s remaining arguments and find them
unavailing. For example, the appellant has not explained why the COVID -19
pandemic constitutes grounds for equitable tolling. In light of our decision to
affirm the administrative judge’s conclusion that equitable tolling should not
apply and to deny corrective action, we need not address whether the agency
properly applied veterans’ preference as the appellant alleged in his initial appeal
or asserts on review. Therefore, we deny the petition for review and affirm the
initial decision as modified herein.
NOTICE OF APPEAL RIGHTS 5
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.
5
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.
8
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:
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
9
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
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:
10
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
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. 6 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).
6
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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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.
12
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.