Opinion

Matthew E Greene v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW E. GREENE, DOCKET NUMBER

Appellant, DE-3330-20-0281-I-1

DEPARTMENT OF DEFENSE, DATE: August 5, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Matthew E. Greene , Lincoln, Nebraska, pro se.

Timothy Jones , Esquire, Fort Gregg-Adams, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

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) on the basis that his veterans’ preference

complaint was untimely before the Department of Labor (DOL). Generally, we

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 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. Except as

expressly MODIFIED to clarify that the appellant’s DOL complaint was untimely

with respect to both nonselections at issue, we AFFIRM the initial decision.

BACKGROUND

The appellant, a preference eligible veteran, applied for two positions with

the agency, one in December 2017, and one in September 2018. Initial Appeal

File (IAF), Tab 1 at 1, 6, Tab 6 at 3. He was not selected for either position.

IAF, Tab 6 at 3. At some point in 2020 (the exact date is not clear), the appellant

filed a complaint with DOL, alleging a violation of his veterans’ preference rights

in connection with these two nonselections. IAF, Tab 1 at 6. DOL dismissed the

complaint as untimely, and the appellant filed the instant Board appeal. Id.

at 3-4, 6.

The administrative judge issued an order notifying the appellant of the

general jurisdictional and timeliness standards for a VEOA appeal, including the

standard for equitable tolling, and ordered him to file evidence and argument on

the issue. IAF, Tab 3. In this order, she specifically directed the appellant to file

a statement showing the dates of the alleged veterans’ preference violations, the

date he filed his complaint with DOL, and the date he received DOL’s decision.

Id. at 6. The administrative judge ordered the agency to respond as well and to

file any evidence it had on the exhaustion, timeliness, and other jurisdictional

issues. Id. at 7. After both parties responded, the administrative judge issued an

initial decision denying the appellant’s request for corrective action as untimely

filed with DOL. IAF, Tab 10, Initial Decision (ID).

The appellant has filed a petition for review and a supplement to the

petition. Petition for Review (PFR) File, Tabs 1, 5. The agency has not filed a

response.

ANALYSIS

A complaint under 5 U.S.C. § 3330a must be brought within 60 days of the

alleged veterans’ preference violation. 5 U.S.C. § 3330a(a)(2)(A). Failure to

meet the 60-day statutory deadline for filing a DOL complaint will result in a

denial of corrective action unless the appellant can establish a basis for equitably

tolling the deadline. See Gingery v. Office of Personnel Management,

119 M.S.P.R. 43, ¶¶ 15-19 (2012). The doctrine of equitable tolling is narrow,

limited to situations in which the complainant actively pursued his judicial

remedies by filing a defective pleading during the statutory period, or he was

induced or tricked by his adversary’s misconduct into allowing the filing deadline

to pass. Irwin v. Veterans Administration, 498 U.S. 89, 96 (1990); Roesel v.

Peace Corps, 111 M.S.P.R. 366, ¶ 8 (2009). Generally, a litigant seeking

equitable tolling bears the burden of establishing two elements: (1) that he has

been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The principles

of equitable tolling do not extend to ordinary cases of excusable neglect. Irwin,

498 U.S. at 96; Wood v. Department of the Air Force, 54 M.S.P.R. 587, 593

(1992).

In this case, the administrative judge found, based on the appellant’s initial

appeal form, that he learned of the first nonselection on December 12, 2017. IAF,

Tab 1 at 3; ID at 2. Without knowing exactly when the appellant filed his DOL

complaint, the administrative judge used the April 21, 2020 date of DOL’s initial

response. ID at 5 n.2. Based on this information, the administrative judge found

that the appellant’s DOL complaint was due no later than February 10, 2018, and

that his April 21, 2020 complaint was therefore at least 861 days untimely. 2 ID

at 5. The administrative judge also found that the appellant provided no basis to

toll the deadline. ID at 5. The reason that the appellant gave for his late filing

was that he learned for the first time during a related equal employment

opportunity (EEO) investigation that the selecting official failed to consider his

veterans’ preference. ID at 5; IAF, Tab 6 at 3. However, the administrative

judge found that the law does not allow for a delay in filing a veterans’

preference complaint while the complainant awaits the outcome of other

proceedings and that the appellant otherwise identified no basis for equitable

tolling. ID at 5.

On petition for review, the appellant argues that he was tricked by the

agency’s misconduct, “stating not referred for the position. Yet, the package that

was submitted did not have my VP.” PFR File, Tab 1 at 4. Construing this pro se

appellant’s petition in the most favorable light, we take this to mean that he did

not become aware until after he filed his EEO complaint that the agency failed to

apply veterans’ preference in its selection process. However, the discovery of

On his initial appeal form, the appellant identified May 1, 2018, as the date of his

DOL complaint. IAF, Tab 1 at 4. However, as the administrative judge recognized,

this cannot be correct because DOL’s initial response to the complaint is dated April 21,

2020. ID at 5 n.2; IAF, Tab 1 at 20. Therefore, for purposes of her calculation, the

administrative judge assumed that the appellant filed his DOL complaint on April 21,

2020. ID at 5 &n.2. In reality, the appellant’s DOL complaint was almost certainly

filed earlier, but he has not objected to the administrative judge’s use of that date, and

he has still not provided the correct date on review. In any event, regardless of whether

the appellant filed his DOL complaint on April 21, 2020, or sometime earlier in the

year, it would still be significantly untimely with respect to both nonselections.

new evidence generally does not constitute the type of extraordinary circumstance

that warrants tolling a statutory deadline, especially when there is no indication

that the evidence was previously unavailable because the agency improperly

concealed it. Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 11

(2014). It is undisputed that the vacancies at issue were announced under merit

promotion procedures. IAF, Tab 1 at 20, Tab 6 at 8; PFR File, Tab 5 at 4-6.

Therefore, veterans’ preference did not apply, see Wheeler v. Department of

Defense, 113 M.S.P.R. 376, ¶ 6 (2010), and the agency cannot be said to have in

any way tricked the appellant by failing to inform him that it did not apply

veterans’ preference in the selection process. Moreover, there is no indication

that the appellant even attempted to seek information from the agency about the

precise basis for his nonselection until well after the statutory deadline had

passed. We, therefore, find that the appellant did not diligently pursue his appeal

rights during the filing period.

The appellant further argues that he read on the Board’s website that, if

there is a formal EEO case, “this could be used in the approval of a VEOA

appeal.” PFR File, Tab 1 at 5. We are not certain exactly what information on

the Board’s website the appellant is citing, but we agree with the administrative

judge that the appellant’s participation in the EEO process does not act to toll the

statutory time limit. ID at 5.

The appellant also argues that the agency failed to file the evidence

required in response the administrative judge’s order on jurisdiction and

timeliness. PFR File, Tab 1 at 3-4. We agree with the appellant that the agency

seems not to have submitted the evidence that the administrative judge ordered,

which would include, at a minimum, evidence regarding its selections for the two

vacancies at issue and the dates on which it informed the appellant of his

nonselections. However, the appellant did not raise an objection on this issue

below. Nor has he shown that the agency’s failure to provide this information

prejudiced his substantive rights. See Harrison v. Office of Personnel

Management, 57 M.S.P.R. 89, 91 n.1 (1993).

In his supplement to the petition for review, the appellant has filed the

certificates of eligibles for the two vacancy announcements, as well as his own

résumé alongside the résumés of the selectees. PFR File, Tab 5. However, this

evidence, along with the remaining arguments in the petition for review, goes to

the merits of the appellant’s claim. PFR File, Tab 1 at 5. They do not address the

dispositive issue of timeliness before DOL.

We note that the initial decision specifically addressed the timeliness of the

appellant’s DOL complaint with respect to his 2017 nonselection but not with

respect to his 2018 nonselection. ID at 5. It would appear that this was due to

the absence of a precise date for the 2018 nonselection. We modify the initial

decision to make clear that the appellant failed to prove that his DOL complaint

was timely with respect to either nonselection. The evidence that the appellant

submitted on review shows that the 2018 nonselection occurred no later than

September 25, 2018. PFR File, Tab 5 at 4. Sixty days from that date was

November 24, 2018, and therefore, the appellant’s 2020 complaint to DOL was

untimely by more than 1 year. For the reasons explained in the initial decision,

we agree with the administrative judge that the appellant has not identified any

unusual circumstances that might warrant equitable tolling. ID at 5.

NOTICE OF APPEAL RIGHTS 3

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

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.

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).

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

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:

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. 4 The court of appeals must receive your petition for

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

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