Willie Davis v. Department of Veterans Affairs , 2022 MSPB 45 ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 45Docket No. DC-0714-20-0417-I-1
Willie Davis,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 14, 2022
Edward H. Passman, Esquire and Nicole Davis, Esquire, Washington, D.C.,
for the appellant.
Barbara Burke, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant filed a petition for review of the initial decision, which
dismissed as untimely filed the appeal of his removal, taken under the authority
of the Department of Veterans Affairs Accountability and Whistleblower
Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a),
131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714). For the reasons
set forth below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the appeal to the regional office for further
adjudication.
2
BACKGROUND
¶2 The appellant was employed by the agency as a Cemetery Caretaker
Supervisor at Culpeper National Cemetery. Initial Appeal File (IAF), Tab 1 at 6,
9. Effective January 31, 2020, the agency removed the appellant under the VA
Accountability Act, based on the charges of failure to follow instructions and
inappropriate conduct. 1 Id. at 9-10.
¶3 On March 2, 2020, the appellant filed an appeal of his removal with the
Board alleging, among other things, that it was the result of race discrimination,
retaliation for prior equal employment opportunity (EEO) activity, and reprisal
for whistleblowing. 2 IAF, Tab 1 at 7. The administrative judge issued an order
explaining that the appeal appeared to be untimely filed under the
10-business-day deadline contained in 38 U.S.C. § 714(c)(4)(B), and directing the
appellant to file evidence and/or argument establishing either that the appeal was
timely filed or that the filing deadline should be waived. IAF, Tab 6 at 1-4. In
response, the appellant argued that he filed his appeal under the mixed-case
procedures governed by 5 U.S.C. § 7702, and thus he was entitled to the 30-day
filing deadline contained in the Board’s regulations regarding mixed cases
at 5 C.F.R. § 1201.154. IAF, Tab 7 at 5-6.
¶4 The administrative judge issued an initial decision, dismissing the appeal as
untimely filed without a showing of good cause for the delay. 3 IAF, Tab 9, Initial
1
The copy of the notice of removal in the record appears to be missing at least one
page. IAF, Tab 1 at 9-10. However, the incomplete copy does not impact our analysis
as to whether this appeal was timely filed.
2
The appellant alleged in his appeal that the “demotion” constituted discrimination and
retaliation. IAF, Tab 1 at 7. As no demotion appears to have occurred in this case, we
assume this is an error.
3
The “good cause” standard is inapplicable in this matter because the filing deadline
under the VA Accountability Act is statutory, there is no mechanism within 38 U.S.C.
§ 714 for waiving the time limit for good cause shown, and the statute does not require
the agency to notify employees of their election rights or filing deadlines . 38 U.S.C.
§ 714(c)(4)(B); Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶¶ 9-10.
3
Decision (ID). The administrative judge determined that, because the appellant
was removed under the VA Accountability Act, 38 U.S.C. § 714 governed, and
thus the appellant was required to file his appeal within 10 business days of the
effective date of the removal. ID at 4. That date would have been February 14,
2020. 4 Given that the appellant filed his appeal on March 2, 2020, the
administrative judge concluded that the appeal was untimely filed and that the
appellant had failed to establish good cause for his delay. ID at 4-5.
Accordingly, she dismissed the appeal. ID at 5.
¶5 The appellant has filed a petition for review, essentially repeating his
contention that his appeal was timely filed because it involved claims of
discrimination and retaliation in violation of EEO statutes, and therefore was a
mixed case governed by 5 U.S.C. § 7702. Petition for Review (PFR) File, Tab 1
at 6-8. The appellant argues that 38 U.S.C. § 714 is “utterly silent” on the issue
of mixed cases, and thus does not alter the procedures for mixed-case appeals
prescribed by 5 U.S.C. § 7702, including the 30-day filing deadline contained
within 5 C.F.R. § 1201.154, which implements the mixed-case procedures set
forth in section 7702. PFR File, Tab 1 at 7-8. The appellant asserts that his
mixed-case appeal was timely filed because it was filed within 30 days of the
Instead, the administrative judge in the initial decision should have applied the
equitable estoppel or equitable tolling doctrines. Ledbetter, 2022 MSPB 41, ¶ 11.
However, because we find that this appeal was timely filed, the administrative judge’s
error is inconsequential. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
4
In the initial decision, the administrative judge stated that the appellant’s deadline to
file the appeal under section 714 was February 10, 2020. ID at 4. If section 714 was
applicable to the calculation of the deadline for filing the appeal, February 10, 2020,
would have been an incorrect date. The administrative judge appears to have calculated
the deadline under section 714 using 10 calendar days, instead of 10 business days, as
set forth in 38 U.S.C. § 714(c)(4)(B). However, because we find that the filing deadline
set by section 714 is not applicable to this appeal, her error did not prejudice the
appellant’s substantive rights. Panter, 22 M.S.P.R. 281 at 282.
4
effective date of his removal. Id. at 8. The agency has responded in opposition
to the appellant’s petition for review. PFR File, Tab 3.
ANALYSIS
¶6 In Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 4-5, 25, the
Board held that when an individual covered by 38 U.S.C. § 714 5 files a
mixed-case appeal after filing a formal discrimination complaint with the agency,
the appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the
Board’s implementing regulations, regardless of whether the adverse action was
taken pursuant to 38 U.S.C. § 714. In this appeal, the appellant did not file a
formal discrimination complaint with the agency, but rather raised allegations that
the agency violated EEO statutes for the first time in his Board appeal. As
discussed below, we expand upon the holding in Wilson and find that the
principle articulated in that decision applies regardless of whether the individual
filed a formal complaint of discrimination with the agency or raised allegations
that the agency violated EEO statutes for the first time in his Board appeal.
The appellant’s mixed-case appeal is subject to the procedures set forth in
5 U.S.C. § 7702.
¶7 The agency removed the appellant under the authority of the VA
Accountability Act, which authorizes the agency to remove, demote, or suspend
“covered individual[s].” IAF, Tab 1 at 9; 38 U.S.C. § 714(a)(1). Pursuant to that
Act, an employee may appeal to the Board a removal, demotion, or suspension of
greater than 14 days, but such appeal “may only be made . . . not later than
10 business days after the date of” the action. 38 U.S.C. § 714(c)(4). Thus,
5
A “covered individual” includes all individuals occupying positions at the agency,
except for individuals who are in the Senior Executive Service, appointed under the
authority of 38 U.S.C. §§ 7306, 7401(1), 7401(4), or 7405, still serving in a
probationary or trial period, or political appointees. 38 U.S.C. § 714(h)(1). Nothing in
the record suggests that the appellant occupies a position that falls under one of these
exceptions.
5
pursuant to the plain language of the statute, because the agency effected the
appellant’s removal on January 31, 2020, an appeal under section 714(c)(4) was
due on February 14, 2020. IAF, Tab 1 at 9. The appellant’s March 2, 2 020
appeal was thus untimely filed if section 714(c)(4) applied. IAF, Tab 1.
¶8 A mixed case arises when an appellant has been subject to an action that is
appealable to the Board, and he alleges that the action was effected, in whole or
in part, because of discrimination. Miranne v. Department of the Navy,
121 M.S.P.R. 235, ¶ 8 (2014); see also Wilson, 2022 MSPB 7, ¶¶ 13-14
(explaining the processing of mixed-case appeals under the Civil Service Reform
Act of 1978 (CSRA), codified at 5 U.S.C. § 7702). Pursuant to 5 U.S.C.
§ 7702(a)(1) and (2), an appellant has two options when filing a mixed-case
appeal: (1) he may initially file a mixed-case EEO complaint with his employing
agency followed by an appeal to the Board 6; or (2) he may file a mixed-case
appeal with the Board and raise his discrimination claims in connection with that
appeal. 7 Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 8. The
regulation addressing the filing of mixed cases with the Board is 5 C.F.R.
6
The CSRA provides at 5 U.S.C. § 7702(a)(2) that an employee may file an EEO
complaint in a mixed case, which an agency “shall resolve . . . within 120 days.” If the
agency fails to issue a final decision within 120 days, the employee’s right to file a
Board appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C.
§ 7702(a)(2), (e)(2); Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 9. The
Board’s regulations implementing the statute also reflect this rule, 5 C.F.R.
§§ 1201.151(a)(1), .154(b)(2), as do the regulations of the Equal Employment
Opportunity Commission, 29 C.F.R. § 1614.302(d)(1)(i).
7
The CSRA provides at 5 U.S.C. § 7702(a)(1) that when an employee “has been
affected by an action which the employee . . . may appeal to the [Board], and alleges
that a basis for the action was discrimination,” as described within various
anti-discrimination statutes, “the Board shall, within 120 days of the filing of the
appeal, decide both the issue of discrimination and the applicabl e action in accordance
with the Board’s appellate procedures under [5 U.S.C. § 7701] and this section.” The
U.S. Supreme Court has interpreted 5 U.S.C. § 7702(a)(1) as “[d]efining the [Board’s]
jurisdiction in mixed-case appeals that bypass an agency’s EEO office.” Perry v. Merit
Systems Protection Board, 137 S. Ct. 1975, 1981 (2017).
6
§ 1201.154, which provides that an appellant may file a Board appeal of an
adverse action alleging discrimination or retaliation in violation of EEO statutes
within 30 days of the effective date of the action, or 30 days from the appellant’s
receipt of the agency’s decision on an EEO complaint, whichever is later.
¶9 As correctly observed by the appellant, 38 U.S.C. § 714 is silent as to the
procedures that apply when an appeal of a removal action taken under the statute
includes an allegation of discrimination or reprisal for the exercise of EEO rights .
PFR File, Tab 1 at 7. Thus, the material issue here is whether the procedures and
timelines set forth in 38 U.S.C. § 714, or 5 U.S.C. § 7702 and 5 C.F.R.
§ 1201.154 apply when an appellant files an appeal directly with the Board of an
adverse action taken under 38 U.S.C. § 714 and alleges violations of EEO laws.
¶10 The Board has previously addressed the relationship between 5 U.S.C.
§ 7702 and 38 U.S.C. § 714. In Wilson, the Board reviewed whether an appellant
had timely filed an appeal of his demotion taken under the VA Accountability Act
when he first filed a formal EEO complaint with his agency, and then
subsequently appealed his demotion to the Board after the agency failed to issue a
final decision within 120 days. Wilson, 2022 MSPB 7, ¶¶ 10-25. Specifically, in
that case, the Board had to determine whether the 10-business-day deadline
contained within 38 U.S.C. § 714(c)(4)(B) applied, or whether 5 U.S.C.
§ 7702(e)(2) applied, which allows appellants to file a Board appeal after filing a
formal EEO complaint if the agency does not issue a final agency decision within
120 days.
¶11 After noting that 38 U.S.C. § 714 was silent on the issue of procedures and
filing times for appeals alleging discrimination or retaliation in violation of EEO
statutes, the Board looked to the CSRA, which expressly included procedures for
processing mixed cases in 5 U.S.C. § 7702. Wilson, 2022 MSPB 7, ¶¶ 12-13. We
observed that Congress specifically delegated to the Board the authority to decide
both the issue of discrimination and the appealable action in accordance with the
Board’s procedures under 5 U.S.C. § 7701. Id., ¶ 14; see 5 U.S.C. § 7702(a)(1).
7
The Board in Wilson took special note of a Senate Report at the time the Board
was created, which explained that “[a]ny provision denying the Board jurisdiction
to decide certain adverse action appeals because discr imination is raised as an
issue would make it impossible for the Government to have a single unified
personnel policy which took into account the requirements of all the various laws
and goals governing Federal personnel management.” Wilson, 2022 MSPB 7,
¶ 14 (quoting S. Rep. No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N
2723, 2775). Thus, the Board found that the plain language of 5 U.S.C. § 7702,
coupled with the Senate’s language stressing the importance of the Board’s
authority to review discrimination claims in adverse action appeals, confirmed
that an employee who first elects to file an EEO complaint retains his right to
later Board review of the agency’s adverse action and any associated
discrimination claims. Wilson, 2022 MSPB 7, ¶ 14.
¶12 As noted by the Board, Wilson was not the first time that a tribunal
confronted how a newly enacted statute affects related laws that it does not
reference. Id., ¶ 15. In Wilson, the Board relied on the U.S. Supreme Court’s
decision in Morton v. Mancari, 417 U.S. 535, 537-39, 545 (1974), in which the
Court declined to find that a new statute repealed a preexisting statute by
implication despite alleged inconsistencies between the statutes. Id., ¶¶ 15-16.
The Court stated in Morton that repeals by implication are disfavored and that
congressional intent to repeal a statute “must be clear and manifest.” Morton,
417 U.S. at 549-51 (quoting United States v. Borden Company, 308 U.S. 188, 198
(1939)); see Wilson, 2022 MSPB 7, ¶ 15. Further, “[w]hen there are two acts
upon the same subject, the rule is to give effect to both if possible.” Morton,
417 U.S. at 551 (quoting Borden Company, 308 U.S. at 198). The Court
continued that “when two statutes are capable of co-existence, it is the duty of the
courts, absent a clearly expressed congressional intention to the contrary, to
regard each as effective.” Morton, 417 U.S. at 551; see Wilson, 2022 MSPB 7,
¶ 15.
8
¶13 The Board in Wilson observed that the Court has recognized factors that
might lead to repeal by implication, although it found them inapplicable in
Morton. Wilson, 2022 MSPB 7, ¶ 16; see Morton, 417 U.S. at 550-51.
These included when the statutes at issue are “irreconcilable,” or when the older
statute is broader in scope than the newer, more specific statute. Morton,
417 U.S. at 550-51; see Todd v. Merit Systems Protection Board, 55 F.3d 1574,
1577-78 (Fed. Cir. 1995) (stating that repeal by implication is appropriate only
when statutes are irreconcilable or “the enactment so comprehensively covers the
subject matter of the earlier statute that it must have been intended as a
substitute”; a statute addressing a “narrow, precise, and specific subject is not
submerged by a later enacted statute covering a more generalized spectrum”) ;
Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006) (holding
that specific statutory language aimed at a particular situation ordinarily controls
over general statutory language).
¶14 Guided by the relevant precedent, the Board in Wilson determined that
38 U.S.C. § 714 does not repeal, either explicitly or implicitly, 5 U.S.C. § 7702.
Wilson, 2022 MSPB 7, ¶¶ 16-19. First, the Board explained that 38 U.S.C. § 714does not expressly repeal 5 U.S.C. § 7702, as it is silent regarding the procedures
and time limits applicable to mixed-case appeals. Id., ¶ 17. Next, the Board
determined that the factors that would render a repeal by implication appropriate
were not present, as 5 U.S.C. § 7702 was the more specific statute regarding the
processing of mixed cases. Id., ¶¶ 16-17. Further, the Board found 5 U.S.C.
§ 7702 and 38 U.S.C. § 714 were capable of co-existing, explaining as follows: if
an appealable action is taken pursuant to 38 U.S.C. § 714, and the covered
individual has not filed a formal complaint of discrimination with the agency,
then the 10-business-day deadline set forth at 38 U.S.C. § 714(c)(4)(B) would
apply. Id., ¶ 19. If however, such an individual has first filed a formal
discrimination complaint with the agency from such an adverse action, then the
time limit set forth at 5 U.S.C. § 7702(e)(2) would apply to any subsequent Board
9
appeal, which allows an appellant to file an appeal with the Board at any time
after the 120th day following the filing of the formal complaint if an agency
decision on that complaint has not been received. Id., ¶ 19. Accordingly, the
Board applied 5 U.S.C. § 7702(e)(2), and found that the appellant was timely in
filing his mixed-case appeal with the Board. Id., ¶ 25.
¶15 However, the Board in Wilson specifically declined to address whether
5 U.S.C. § 7702 would apply if a “covered individual” directly filed a Board
appeal alleging that an action taken pursuant to 38 U.S.C. § 714 was based on
discrimination. Wilson, 2022 MSPB 7, ¶ 19 n.5. These are the circumstances
present here.
¶16 The relevant statutory subsections in Wilson were 5 U.S.C. § 7702(a)(2) and
(e)(2), which provide for a Board appeal following the filing of a mixed -case
complaint with an employing agency. In this matter, the relevant statutory
subsection is 5 U.S.C. § 7702(a)(1), which the U.S. Supreme Court has
interpreted as “[d]efining the [Board’s] jurisdiction in mixed-case appeals that
bypass an agency’s EEO office.” Perry v. Merit Systems Protection Board,
137 S. Ct. 1975, 1981 (2017); see Austin v. Merit Systems Protection Board,
136 F.3d 782, 783 (Fed. Cir. 1998) (citing 5 U.S.C. § 7702(a)(1) for the
proposition that “[a]n employee may initiate a mixed case directly with the Board
and seek a decision on both the appealable action and the discrimination claim”).
In interpreting statutes, “each section of a statute should be construed in
connection with every other section so as to produce a harmonious whole.” King
v. Department of Health & Human Services, 71 M.S.P.R. 22, 29 (1996) (citing 1A
Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1993)).
Additionally, it is well settled that the provisions of a unified statutory scheme
should be read in harmony, leaving no provision inoperative or superfluous.
Holley v. United States, 124 F.3d 1462, 1468 (Fed. Cir. 1997); Styslinger v.
Department of the Army, 105 M.S.P.R. 223, ¶ 17 (2007), overruled on other
grounds by Oram v. Department of the Navy, 2022 MSPB 30. As part of the
10
CSRA’s unified statutory scheme and 5 U.S.C. § 7702 as a whole, 5 U.S.C.
§ 7702(a)(1) must be read in harmony, and treated consistently, with the
remainder of that statute.
¶17 Thus, for the same reasons as those set forth in Wilson—the silence of the
VA Accountability Act regarding its relationship to the mixed -case procedures set
forth in the CSRA, the absence of any clear and manifest intent by Congress in
38 U.S.C. § 714 to repeal the mixed-case provisions of the CSRA, the strong
preference against repeal of a statute by implication and in favor of reading
statutes together, and the fact that the statutes can co-exist—we find that 5 U.S.C.
§ 7702(a)(1) continues to govern mixed-case appeals filed directly with the
Board. In other words, an appellant who files an appeal of an adverse action
taken pursuant to 38 U.S.C. § 714 and alleges violations of EEO statutes in the
first instance before the Board has filed a mixed case, which is governed by the
procedures and the timelines established by 5 U.S.C. § 7702 and its implementing
regulations, and not 38 U.S.C. § 714. To find otherwise would be to treat the
continuing applicability of the various subsections of 5 U.S.C. § 7702 differently
and to render section 7702(a)(1) inoperative when an action is taken under
38 U.S.C. § 714. This would be contrary to well-established principles of
statutory construction. See Holley, 124 F.3d at 1468; Styslinger, 105 M.S.P.R.
223, ¶ 17.
¶18 In so finding, we recognize that 38 U.S.C. § 714 does not make it
impossible for an appellant to raise issues of discrimination in a direct Board
appeal and follow the timelines set forth in that statute. Nevertheless, as
discussed above and in Wilson, nothing in section 714 supports a finding that it
repeals, either expressly or by implication, any of the mixed-case procedures set
forth in 5 U.S.C. § 7702. Thus, 5 U.S.C. § 7702(a)(1) remains applicable to
mixed-case appeals of actions taken under 38 U.S.C. § 714 when discrimination is
raised for the first time before the Board.
11
The appellant’s mixed-case appeal was timely filed and, accordingly, this matter
must be remanded to the administrative judge for further adjudication.
¶19 In this case, the appellant filed an appeal directly with the Board alleging ,
among other things, that his removal was the result of race discrimination and
retaliation for prior EEO activity. IAF, Tab 1 at 7. Because the appellant filed a
mixed-case appeal, the procedures contained within 5 U.S.C. § 7702 and the
Board’s implementing regulations apply. Those regulations provide that
mixed-case appeals must be filed within 30 days of the effective date of the
agency’s action or 30 days after the date of the appellant’s receipt of the agency’s
decision, whichever is later. 5 C.F.R. § 1201.154(a). The agency removed the
appellant effective January 31, 2020, and the time period for filing began at that
time. IAF, Tab 1 at 9-10. The appellant filed his mixed-case appeal on March 2,
2020, IAF, Tab 1, and thus it was timely filed. 8 Accordingly, we remand the
appeal for further adjudication. 9
ORDER
¶20 For the reasons discussed above, we REMAND this matter to the regional
office for further adjudication in accordance with this Remand Order . On
8
The 30th calendar day following January 31, 2020, was March 1, 2020. That day was
a Sunday, and thus the filing deadline was the following business day, Monday,
March 2, 2020. 5 C.F.R. § 1201.23.
9
On review, the appellant also argues that the administrative judge should have granted
his request to dismiss his appeal without prejudice so that he could pursue an EEO
complaint. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 6-7. Because we find the appeal was
timely filed, the appellant has elected that remedy and cannot now file a n EEO
complaint. Dowell v. U.S. Postal Service, 113 M.S.P.R. 250, ¶ 6 (2010) (an appellant
who is subject to an action that is appealable to the Board and who alleges the action
was effected in whole or in part because of discrimination may either filed a direct
Board appeal or an EEO complaint with the agency, but not both, and whichever is filed
first is deemed to be an election to proceed in that forum); 5 C.F.R. § 1201.154(a) (an
appellant alleging discrimination who has been subject to an action that is appealable to
the Board may either file a timely complaint of discrimination with the agency or file
an appeal with the Board).
12
remand, the administrative judge should adjudicate this appeal as timely filed,
determine if the agency established its charges by substantial evidence, and
address the appellant’s affirmative defenses of discrimination and EEO and
whistleblower retaliation in accordance with applicable precedent. 10
FOR THE BOARD:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
10
On remand, the administrative judge shall provide the appellant with comprehensive
notice of his burdens of proof regarding his affirmative defenses.