Jessie Hudson v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSIE DONALD HUDSON, DOCKET NUMBER
Appellant, AT-3330-17-0266-I-1
v.
DEPARTMENT OF VETERANS DATE: June 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jessie Donald Hudson, Stone Mountain, Georgia, pro se.
Dafni Kiritsis, Syracuse, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA) as untimely filed. Generally, we grant
petitions such as this one only in the following circumstances : the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 ava ilable
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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 On November 29 and December 1, 2016, the Department of Labor (DOL)
issued letters stating that it was closing its investigation into the appellant’s
VEOA complaints. Initial Appeal File (IAF), Tab 9 at 32, 36. The DOL also
informed the appellant of his right to appeal to the Board within 15 days of the
date he received the letters. Id. at 32, 37.
¶3 On January 21, 2017, the appellant filed his appeal. IAF, Tab 1. The
administrative judge issued a jurisdictional order in which she informed the
appellant of the jurisdictional requirements and burdens of proof in a VEOA
appeal. IAF, Tab 3. She also issued a show cause order in which she informed
the appellant that his appeal was filed after the 15-day deadline had lapsed, but
she noted that the deadline was subject to equitable tolling , and she advised him
as to the criteria for establishing whether the deadline should be equitably tolled.
IAF, Tab 8.
¶4 The appellant filed a lengthy response in which he addressed the merits of
the agency actions underlying his VEOA complaints, but he did not discuss the
timeliness of his appeal or the question of equitable tolling. IAF, Tab 9. The
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administrative judge dismissed the appeal as untimely filed. IAF, Tab 10, Initial
Decision (ID). In his petition for review, the appellant again argues the merits of
his VEOA claims and does not address the timeliness of the appeal. Petition f or
Review File, Tab 1.
¶5 An appellant must file his VEOA appeal within 15 days after receiving
written notification from the Secretary of Labor concerning the results of the
DOL’s investigation. Gingery v. Department of the Treasury, 110 M.S.P.R. 83,
¶ 23 (2008). The appellant did not indicate when he received the DOL’s letters.
There is no evidence concerning when the appellant received the letters, but
Board precedent and regulations recognize that documents placed in the mail are
presumed to be received within 5 days. Lagreca v. U.S. Postal Service,
114 M.S.P.R. 162, ¶ 6 (2010). The twentieth day after the latest date that the
DOL’s letters were mailed is December 21, 2016, as the administrative judge
correctly found. ID at 3; see Williamson v. U.S. Postal Service, 106 M.S.P.R.
502, ¶ 7 (2007) (recognizing that a DOL letter providing notice that it has closed
the investigation is presumed to have been received 5 days after it was issued).
The appellant’s appeal, filed on January 21, 2017, was approximately 1 month
late.
¶6 The 15-day deadline for filing a VEOA appeal is set by statute, 5 U.S.C.
§ 3330a(d)(1)(B), and therefore cannot be waived for good cause shown.
Williamson, 106 M.S.P.R. 502, ¶ 6. However, it is by now well established that
the deadline is subject to equitable tolling. Gingery, 110 M.S.P.R. 83, ¶ 24.
Equitable tolling is allowed “only sparingly” in situations in which the appellant
actively pursued his remedies by filing a defective pleading during the statutory
period, or when the appellant has been induced or tricked by the agency’s
misconduct into allowing the filing deadline to pass. Id. (citing Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990)).
¶7 Here, the appellant has not claimed that he filed a defective pleading during
the statutory filing period or that the agency tricked or induce d him into allowing
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the deadline to pass. In fact, the appellant fails even to acknowledge that he filed
his appeal late. Under the circumstances, we find that the administrative judge
correctly dismissed this appeal as untimely filed.
NOTICE OF APPEAL RIGHTS 2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
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 partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
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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:
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
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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. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.