Anthony Salazar v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2024 MSPB 11

Docket No. SF-3330-18-0470-I-1

Anthony G. Salazar,

Appellant,

v.

Department of Veterans Affairs,

Agency.

September 13, 2024

Anthony G. Salazar , Pico Rivera, California, pro se.

Dévora Mas , Esquire, Houston, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication of

this appeal.

OPINION AND ORDER

¶1 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) for failure to timely file a complaint with the

Department of Labor (DOL). For the reasons set forth below, we GRANT the

petition for review, VACATE the initial decision, and REMAND the appeal for

further adjudication in accordance with this Opinion and Order.

2

BACKGROUND

¶2 The appellant, a 10-point preference-eligible veteran, applied for two

positions advertised by the agency. Initial Appeal File (IAF), Tab 4 at 50, 52, 63,

75, 84. The first position was a GS-12 Support Services Supervisor position and

was advertised under vacancy announcement number 344-17-24-TS-1955448. Id.

at 56-61. The second position was a GS-7 Veterans Service Representative

(VSR) position advertised under vacancy announcement number

VB 1990725-FEB. Id. at 88-93. On August 9, 2017, the agency informed the

appellant that he had been rated ineligible for the Support Services Supervisor

position for failure to meet the specialized experience requirement. Id. at 63,

70-72. On October 4, 2017, the agency informed him that he had not been

selected for the VSR position. Id. at 95.

¶3 On October 1 or 2, 2017, the appellant filed a complaint with the Office of

Special Counsel (OSC) concerning his nonselection for the Support Services

Supervisor position. Id. at 21-36. He identified himself as a “ten-point veteran

preference applicant” and alleged that he had been improperly denied

consideration for the position in reprisal for whistleblowing or because his former

supervisor provided “negative feedback” about the appellant to the hiring

officials. 1 Id. at 31. Beginning on January 24, 2018, the appellant reached out to

OSC via email to request that it act on his complaint. Id. at 43. On

1

The appellant referenced this “negative feedback” in connection with his February 4,

2015 removal by the agency for unacceptable performance. Salazar v. Department of

Veterans Affairs, 2022 MSPB 42, ¶ 5; IAF, Tab 4 at 31; Salazar v. Department of

Veterans Affairs, MSPB Docket No. SF-1221-15-0660-W-1, Initial Appeal File, Tab 5

at 16. The appellant filed an individual right of action (IRA) appeal with the Board

challenging a number of agency actions, including his removal. Salazar, 2022 MSPB

42, ¶¶ 5-6. Following a Board-ordered remand of that appeal, an administrative judge

issued a remand initial decision denying corrective action. Salazar, 2022 MSPB 42,

¶¶ 1, 37; Salazar v. Department of Veterans Affairs, MSPB Docket No. SF-1221-15-

0660-B-1, Remand Initial Decision at 1, 48 (Mar. 15, 2024). The appellant has filed a

petition for review, which is currently pending before the Board. Salazar, MSPB

Docket No. SF-1221-15-0660-B-1, Remand Petition for Review File, Tab 1. The

disposition of the appellant’s IRA appeal does not impact the timeliness issue currently

before us.

3

February 13, 2018, the assigned investigator, who had been on military duty until

that time, responded to the appellant that he had returned to the office and would

turn to the appellant’s complaint shortly. Id. at 40-41. Eight days later, on

February 21, 2018, the investigator advised the appellant of OSC’s preliminary

findings. Id. at 40, 44. The appellant responded on February 23 and February 26,

2018. 2 Id. at 44.

¶4 By letter dated March 5, 2018, OSC informed the appellant that it was

closing its investigation into his complaint and provided him with notice of his

Board appeal rights. Id. at 44-45. The investigator acknowledged the appellant’s

claims that his former supervisor “willfully obstruct[ed] [him] with respect to

[his] right to compete for employment” in violation of 5 U.S.C. § 2302(b)(4) and

that the agency did not select the appellant in reprisal for filing complaints with

the Inspector General and OSC in violation of 5 U.S.C. § 2302(b)(9). Id. The

investigator also acknowledged that “[i]n [the appellant’s] response, [he] alleged

that [his] non-selections may have violated Veterans preference rules,” which the

investigator identified as a prohibited personnel practice arising under 5 U.S.C.

§ 2302(b)(11). Id. The investigator advised the appellant that “OSC defers”

allegations of VEOA violations to DOL and that he could file a complaint on that

claim with DOL. 3 Id. at 45.

2

Neither party has submitted into the record OSC’s February 21, 2018 determination

letter or the appellant’s February 2018 responses.

3

VEOA tasks DOL with investigating claims by a preference eligible that an agency

may have violated the claimant’s rights under any law or regulation relating to veterans’

preference. 5 U.S.C. § 3330a(b). However, the statute also amended 5 U.S.C. § 2302

and made it a prohibited personnel practice to “knowingly take, recommend, or approve

any personnel action if the taking of such action would violate a veterans’ preference

requirement” or to “knowingly fail to take, recommend, or approve any personnel action

if the failure to take such action would violate a veterans’ preference requirement.”

Pub. L. No. 105-339, 112 Stat. 3187 (codified at 5 U.S.C. § 2302(b)(11)). OSC is

responsible for the investigation of alleged prohibited personnel practices. 5 U.S.C.

§ 1214. OSC and DOL have entered into a Memorandum of Understanding, submitted

into the record by the appellant, that prescribes the roles and responsibilities of the two

agencies in carrying out their obligations under the statute. IAF, Tab 4 at 14-19.

4

¶5 The same day that OSC issued this letter, the appellant filed a complaint

with DOL alleging that the agency violated his veterans’ preference rights in

connection with his nonselections. Id. at 47. Approximately 1 month later, DOL

informed the appellant that it had completed its investigation into his complaint

and found no violation of his rights under VEOA. Id. at 47-48. The letter

informed the appellant of his right to appeal DOL’s decision to the Board. Id.

at 48.

¶6 The appellant timely filed the instant VEOA appeal challenging his

nonselection for the two positions and requested a hearing on his appeal. IAF,

Tab 1 at 1-5. The administrative judge issued an order informing the parties of

the appellant’s burden of showing, as relevant here, that he timely filed his DOL

complaint within 60 days of the alleged VEOA violation or, if not, that

circumstances warranted equitable tolling of the deadline. IAF, Tab 3 at 5-6. The

order instructed the parties to file evidence and argument on those issues and

advised them that the record on timeliness would close in 3 weeks. Id. at 6-7.

¶7 After the parties responded and the record on timeliness closed, the

administrative judge issued an initial decision denying corrective action based on

the written record. IAF, Tabs 4, 6, Tab 13, Initial Decision (ID) at 2, 21. The

administrative judge concluded that the appellant established jurisdiction over his

VEOA appeal. ID at 10-11. The administrative judge nevertheless concluded

that the appellant failed to show that he timely filed his complaint with DOL

within 60 days of the challenged actions as required under 5 U.S.C.

§ 3330a(a)(2)(A) or that he was entitled to equitable tolling of the deadline. ID

at 11-21. Because the administrative judge concluded that there was no genuine

dispute of material fact regarding these dispositive issues, he denied corrective

action without holding the appellant’s requested hearing. ID at 1-2, 21.

¶8 The appellant has timely filed a petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1, Tab 2 at 1 n.1. The agency has filed a

5

response to the petition for review, and the appellant has filed a reply. PFR File,

Tabs 3-4.

ANALYSIS

The 60-day time limit for filing a complaint with DOL is not jurisdictional and is

subject to equitable tolling.

¶9 The Board’s jurisdiction over VEOA claims arises under 5 U.S.C.

§ 3330a(d)(1). Shaver v. Department of the Air Force, 106 M.S.P.R. 601, ¶ 9

(2007). That provision states that “[i]f [DOL] is unable to resolve a complaint”

within a specified time period, “the complainant may elect to appeal the alleged

violation to the Merit Systems Protection Board.” 5 U.S.C. § 3330a(d)(1). The

“complaint” referred to in this provision is a VEOA complaint that the veteran

“must . . . file[] [with DOL] within 60 days after the date of the alleged

violation.” 5 U.S.C. § 3330a(a)(2)(A).

¶10 The administrative judge found that the 60-day deadline to file a complaint

in 5 U.S.C. § 3330a(a)(2)(A) is not jurisdictional. ID at 9. Without specifically

disputing the administrative judge’s finding, the agency states on review that the

“exhaustion requirement is a jurisdictional element of a VEOA appeal.” 4 PFR

File, Tab 3 at 5. We agree with the administrative judge.

¶11 Statutes setting forth time limitations for filing claims generally are not

jurisdictional unless Congress “clearly states” that they are. 5 Harrow v.

Department of Defense, 601 U.S. 480, 483-84 (2024). Here, the statutory

language of 5 U.S.C. § 3330a does not “plainly show that Congress imbued [the

rule] with jurisdictional consequences.” Id. at 484 (quoting United States v.

4

The parties do not otherwise dispute the administrative judge’s determination that the

Board has jurisdiction over this appeal, and we discern no basis to disturb that finding.

ID at 1, 7-11.

5

The U.S. Supreme Court has recognized that the deadline for filing an appeal from a

Federal district court decision in a civil case is an exception to this general rule.

Harrow v. Department of Defense, 601 U.S. 480, 488-89 (2024). That exception does

not apply here.

6

Wong, 575 U.S. 402, 409-12, 420 (2015)). Consistent with this line of cases, both

the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and the Board

have concluded that the 60-day deadline set forth in 5 U.S.C.

§ 3330a(a)(2)(A) is not jurisdictional. Kirkendall v. Department of the Army,

479 F.3d 830, 835-36 & n.2 (Fed. Cir. 2007) (en banc); Garcia v. Department of

Agriculture, 110 M.S.P.R. 371, ¶¶ 8-13 (2009). We reaffirm that holding here.

¶12 Further, “nonjurisdictional limitations periods are presumptively subject to

equitable tolling.” Boechler, P.C. v. Commissioner of Internal Revenue, 596 U.S.

199, 209 (2022) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 92,

94-96 (1990) (holding that once Congress waives the Government’s sovereign

immunity, the Court will presume that equitable tolling is available, and applying

the presumption to conclude that courts could equitably toll the requirement in

42 U.S.C. § 2000e-16(c) (1990) that “[w]ithin thirty days of receipt of notice of

final action . . . [by] the Equal Employment Opportunity Commission . . . a[]

[Federal] employee or applicant . . . may file a civil action”)). The Federal

Circuit and the Board have recognized this and concluded that equitable tolling

applies to 5 U.S.C. § 3330a(a)(2)(A). Kirkendall, 479 F.3d at 837-38, 841-42

(finding that the deadline under section 3330a(a)(2)(A) would bar suit if equitable

tolling were not permitted and concluding that the deadline may be equitably

tolled); Garcia, 110 M.S.P.R. 371, ¶ 12 (recognizing the holding in Kirkendall

that the 60-day deadline in 5 U.S.C. § 3330a(a)(2)(A) may be equitably tolled);

5 C.F.R. § 1208.21(b) (providing that the 60-day deadline to file a VEOA

complaint with DOL may be equitably tolled). The parties have not disputed the

administrative judge’s determination that the 60-day deadline under 5 U.S.C.

§ 3330a(a)(1)(A) may be equitably tolled, and we agree with this conclusion for

the foregoing reasons. ID at 9.

7

The Board reviews de novo DOL’s determinations as to whether a VEOA

complaint was timely filed and whether to equitably toll the deadline.

¶13 DOL’s determination on the appellant’s VEOA complaint was silent as to

whether his complaint was timely filed or warranted equitable tolling. IAF, Tab 4

at 47-48. The administrative judge concluded that, notwithstanding DOL’s

silence and the implication that such silence amounted to a waiver of the

untimeliness of the appellant’s complaint, the Board had the authority to consider

whether DOL erred in tolling the deadline. ID at 14-17. On review, the appellant

argues that the administrative judge should not have reached the timeliness issue

because it was not addressed by OSC or DOL. PFR File, Tab 1 at 7. We

disagree. As explained below, the Board must review DOL’s timeliness and

equitable tolling decisions de novo.

¶14 The Federal Circuit is the Board’s reviewing court in VEOA appeals, and

the Board is bound to follow its precedential decisions. See Kirkendall v.

Department of the Army, 573 F.3d 1318, 1320-21 (Fed. Cir. 2009) (predicating

review of a Board decision on a VEOA claim on 28 U.S.C. § 1295(a)(9), which

conveys exclusive jurisdiction over final Board decisions to the Federal Circuit);

Oram v. Department of the Navy, 2022 MSPB 30, ¶¶ 6, 17 (holding that the

Federal Circuit’s precedential decision in a VEOA appeal was binding authority).

In Kirkendall, 479 F.3d at 834, DOL rejected the petitioner’s VEOA complaint as

untimely filed. The Board found that it was without authority to revisit DOL’s

determination not to waive the 60-day deadline. Id. On review, the Federal

Circuit disagreed, stating that “[b]ecause the question of whether

section 3330a(a)(2)(A) is subject to equitable tolling was at issue, the [B]oard had

the authority and the obligation to consider whether DOL’s action was in error.”

Id. at 835; see Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 388-90, 392-94,

398 (1982) (concluding that a Federal district court properly declined to dismiss a

class action lawsuit alleging sex discrimination against a private employer

because, although some of the class members did not timely file a charge of

8

discrimination with the EEOC, the timeliness requirement was “subject to waiver,

estoppel, and equitable tolling”).

¶15 Section 3330a(d)(1) of Title 5 of the U.S. Code provides that if DOL fails to

resolve a VEOA complaint within 60 days after the filing date, a complainant

“may elect to appeal the alleged violation to the Merit Systems Protection Board

in accordance with such procedures as the Merit Systems Protection Board shall

prescribe.” As this language makes clear, it is the VEOA violation, and not

DOL’s determinations, that the Board reviews. Shaver, 106 M.S.P.R. 601,

¶ 8 n.4. The Board has previously interpreted this language as providing that a

VEOA appeal before the Board is a de novo proceeding in which the Board is not

required to defer to DOL’s findings regarding the merits of the individual’s

complaint. Id. And a decision that an appellant did not fulfill the procedural

requirements for bringing an appeal to the Board is “on the merits.” Garcia,

110 M.S.P.R. 371, ¶ 13 & n.4; see Semtek International Inc. v. Lockheed Martin

Corporation, 531 U.S. 497, 501-03, 506 (2001) (explaining that “over the years

the meaning of the term ‘judgment on the merits’ ‘has gradually undergone a

change’” and “it has come to be applied to some judgments . . . that do not pass

upon the substantive merits of a claim” and that “‘adjudication on the merits’ . . .

is simply that, unlike a dismissal ‘without prejudice,’ the dismissal in the present

case barred refiling of the same claim” in the same court) (internal citations

omitted) (emphasis in original). 6

6

Although the Board denies corrective action on the merits of a VEOA appeal when it

determines that an appellant did not timely file his DOL complaint and is not entitled to

equitable tolling, Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4, “disposition on the merits” has

a different meaning for purposes of res judicata, see Semtek, 531 U.S. at 501-06

(finding that a court’s decision to dismiss a case as barred by the applicable statute of

limitations did not have “claim-preclusive effect in other courts”); Muyco v. Office of

Personnel Management, 114 M.S.P.R. 694, ¶¶ 9-10 (2010) (concluding that the Board’s

determination that the Office of Personnel Management properly dismissed a request for

reconsideration as untimely is not a decision on the merits for purposes of applying the

doctrine of res judicata).

9

¶16 Consistent with its statutorily granted authority under section 3330a(d)(1) to

prescribe procedures for VEOA appeals, the Board has issued regulations

regarding such appeals. 5 C.F.R. §§ 1201.57(a)(2), 1208.21-1208.26. These

regulations state that the Board reviews the merits of a VEOA appeal for

preponderant evidence. See 5 C.F.R. § 1201.57(c)(4). This burden of proof is

synonymous with de novo review. See Norris v. Securities and Exchange

Commission, 675 F.3d 1349, 1355 (Fed. Cir. 2012) (interpreting the language in

5 U.S.C. § 7701(c)(1) that the Board reviews a chapter 75 adverse action to

determine “if the agency’s decision . . . is supported by a preponderance of the

evidence” as requiring that the Board review the merits of the agency’s action de

novo); Licausi v. Office of Personnel Management, 350 F.3d 1359, 1364 (Fed.

Cir. 2003) (concluding that a Board regulation placing the burden on an appellant

to prove by preponderant evidence entitlement to retirement benefits “makes clear

that the appeal proceeding before the Board [challenging a reconsideration

decision by the Office of Personnel Management to deny benefits] constitutes a

de novo proceeding”).

¶17 The regulation at 5 C.F.R. § 1208.21(a) reiterates the statutory exhaustion

requirement and cites the 60-day deadline for filing a DOL complaint. Even

when the Board originally contemplated adopting this timeliness provision, its

Federal Register notice did not suggest any deference to DOL’s timeliness

findings. See Practices & Procedures for Appeals Under the Uniformed Services

Employment and Reemployment Rights Act & the Veterans Employment

Opportunities Act, 65 Fed. Reg. 5410-01, 5411 (Feb. 4, 2000) (“VEOA

establishes statutory filing time limits for each stage of the redress procedure. . . .

VEOA does not provide for waiver of any of its statutory filing time limits for

good cause.”).

¶18 The Board later added 5 C.F.R. § 1208.21(b) to reflect the ruling in

Kirkendall, 479 F.3d 830, that the 60-day deadline for filing a VEOA complaint is

subject to equitable tolling. Practices & Procedures, 77 Fed. Reg. 33663-01,

10

33670, 33681 (June 7, 2012). Section 1208.21(b) states that the 60-day filing

deadline set forth in 5 U.S.C. § 3330a(a)(2)(A) “is subject to the doctrine of

equitable tolling, which permits the Board to extend the deadline where the

appellant, despite having diligently pursued his or her rights, was unable to make

a timely filing.” By stating that equitable tolling “permits the Board to extend the

deadline,” this provision plainly contemplates that the Board will make its

determination regarding tolling independent of DOL’s findings on the issue.

¶19 Before, and even after, the 2007 decision in Kirkendall and the Board’s

2012 Federal Register notice recognizing the import of Kirkendall, the Board

issued decisions suggesting that it would defer to DOL regarding timeliness and

waiver; in some instances, the Board found such deference appropriate even when

DOL had only implicitly considered the issue. See, e.g., Gingery v. Department

of the Treasury, 119 M.S.P.R. 43, ¶ 19 (2012) (suggesting that the Board can

deny corrective action based on the untimeliness of a DOL complaint only if DOL

has not recognized the timeliness issue, excused the appellant’s lateness, and

investigated the substance of the complaint); Alegre v. Department of the Navy,

118 M.S.P.R. 424, ¶ 16 n.3 (2012) (not addressing the issues of timeliness or

waiver on the assumption that, because DOL addressed an untimely VEOA

complaint on the merits, DOL had elected to waive the timeliness requirement);

Letchworth v. Social Security Administration, 101 M.S.P.R. 269, ¶ 4 n.2 (2006)

(concluding that an administrative judge erred in dismissing a VEOA appeal

based on an appellant’s untimely filed DOL complaint because, as relevant here,

DOL waived any timeliness issue by issuing a decision on the merits); Waddell v.

U.S. Postal Service, 94 M.S.P.R. 411, ¶ 11 (2003) (determining that the Board

lacked the authority to review DOL’s determination that a VEOA complaint was

timely filed or, if not, to waive the deadline) . In conducting de novo review, the

Board does not defer to DOL’s findings, regardless of whether they are implicit or

explicit. Shaver, 106 M.S.P.R. 601, ¶ 8 n.4.; see Elias v. Department of Defense,

114 F.3d 1164, 1166-67 (Fed. Cir. 1997) (explaining that when the Board

11

conducts de novo proceedings, it does not defer to an agency’s decision not to

extend a deadline). We overrule prior Board decisions that conditioned Board

review of the timeliness and equitable tolling of a DOL complaint on whether

DOL had addressed the issue.

The administrative judge properly concluded that the appellant’s VEOA

complaint was untimely filed.

¶20 On review, the appellant reasserts that his DOL complaint should be

deemed timely filed in October 2017, when he filed his OSC complaint as to his

nonselection for the Support Services Supervisor position. 7 PFR File, Tab 1 at 7;

IAF, Tab 4 at 5-6, 14, 17. We affirm the administrative judge’s finding that the

appellant untimely filed his DOL complaint.

¶21 As the administrative judge correctly observed, it is undisputed that the

appellant learned that he was not selected for a Support Services Supervisor

position on August 9, 2017, and that he was not selected for the VSR position on

October 4, 2017. ID at 13; IAF, Tab 4 at 63, 95; PFR File, Tab 1 at 6-7.

Therefore, his March 5, 2018 complaint to DOL was untimely filed by over

4 months and over 3 months, respectively. ID at 13. Further, although the

appellant argues that he timely filed his DOL complaint in the wrong forum, we

agree with the administrative judge that this assertion implicates equitable tolling

rather than the timeliness of the complaint. PFR File, Tab 1 at 7; see Kerr v.

Merit Systems Protection Board, 908 F.3d 1307, 1312 (Fed. Cir. 2018)

(recognizing that it may be appropriate to equitably toll a filing deadline when a

7

To the extent that the appellant argues on review that the administrative judge erred by

raising the timeliness issue sua sponte, we disagree. PFR File, Tab 1 at 7. An

administrative judge has broad authority to control the proceedings before him,

including the authority to ensure that the record on significant issues is fully developed

and to adjudicate the case. 5 C.F.R. § 1201.41(b)(5)(ii)-(iii), (9); see Lopes v.

Department of the Navy, 119 M.S.P.R. 106 (2012) (recognizing that an administrative

judge has broad discretion to control the proceedings before him); 5 C.F.R.

§ 1201.115(e) (stating that, although the Board generally only considers issues raised by

the parties on review, it reserves the authority to consider any issue in an appeal before

it).

12

party files “in the wrong forum”) (citing, among other cases, Irwin, 489 U.S. at 96

(providing examples of situations in which tolling might be appropriate) (citations

omitted), and Burnett v. New York Central Railroad Company , 380 U.S. 424,

424-26, 434-35 (1965) (concluding that a Federal district court erred by not

tolling the filing period for an untimely complaint when the plaintiff had

previously mistakenly filed his complaint in state court before the deadline

passed)); Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶¶ 8-9, 13-14 (2009)

(finding that it was inappropriate to equitably toll an untimely filed VEOA

complaint when the appellant did not show, as relevant here, that he timely raised

his veterans’ preference claim in another forum). Accordingly, we affirm the

administrative judge’s finding that the appellant did not timely file his DOL

complaint.

¶22 On review, the appellant argues that the administrative judge should have

granted him a hearing on the timeliness issue. PFR File, Tab 1 at 6, Tab 3 at 7-8.

VEOA appellants do not have an unconditional right to a hearing before the

Board. Oram, 2022 MSPB 30, ¶ 9; 5 C.F.R. § 1208.23(b). Instead, the Board has

the authority to decide a VEOA appeal on the merits, without a hearing, when

there is no genuine dispute of material fact and one party must prevail as a matter

of law. Oram, 2022 MSPB 30, ¶ 9.

¶23 As addressed above, we agree with the administrative judge that

determinations regarding the timeliness of a DOL complaint and whether to

equitably toll the deadline are determinations on the merits and thus may be

decided without a hearing if there is no genuine dispute of material fact. ID

at 1-2, 11-12; see Garcia, 110 M.S.P.R. 371, ¶ 13 & n.4. Because there is no

factual dispute over the date the appellant filed his DOL complaint or the dates he

received notice that he had not been selected for the two positions, we discern no

error by the administrative judge in finding, based on the written record, that the

appellant untimely filed his DOL complaint.

13

The administrative judge should have held the appellant’s requested hearing on

the issue of equitable tolling as to the Support Services Supervisor position .

¶24 The administrative judge found that the appellant did not establish a dispute

of material fact that would entitle him to a hearing on the issue of whether the

delay in filing his DOL complaint should be equitably tolled. ID at 13-21. In

doing so, he concluded that the appellant had not raised his VEOA claims with

OSC until late February 2018. ID at 18-21. The appellant challenges this finding

on review only as to the Support Services Supervisor vacancy. 8 PFR File, Tab 1

at 7-9. As explained below, we disagree with the administrative judge’s finding

that the appellant did not establish a genuine dispute of material fact as to the

Support Services Supervisor position and remand for a hearing on the question of

whether the delay in filing the complaint as to the nonselection for that position

should be equitably tolled.

¶25 Filing a claim in the wrong court may be a basis to equitably toll a deadline

when “the claimant has actively pursued his judicial remedies by filing a

defective pleading during the statutory period.” Kerr, 908 F.3d at 1313 (quoting

Irwin, 498 U.S. at 96 & n.3). In the analogous circumstance of a plaintiff who

filed a lawsuit in a court that had jurisdiction over his claim but was not the

correct venue, the U.S. Supreme Court found that the statute of limitations was

tolled during the period that the plaintiff’s action was pending before the wrong

court. Burnett, 380 U.S. at 427-28, 434-35.

¶26 The appellant filed his OSC complaint within 60 days of learning of his

nonselection for the Support Services Supervisor position. IAF, Tab 4 at 21, 63.

8

The only evidence in the record that the appellant raised the VSR vacancy to OSC is

OSC’s March 5, 2018 letter advising him of its final decision to close its file and

identifying the VSR vacancy for this first time. IAF, Tab 4 at 44-45. He could not have

raised his nonselection for the VSR vacancy in October 2017, when he filed his OSC

complaint, because he did not learn of it until 2 to 3 days later. Id. at 21, 95. Further,

OSC did not begin processing his complaint until February 2018 . IAF, Tab 1 at 11,

Tab 4 at 7, 40-43. Thus, the record supports the administrative judge’s finding that,

more likely than not, the appellant first raised the VSR vacancy to OSC in February

2018.

14

In a sworn statement below, the appellant asserted that he raised a VEOA claim in

his OSC complaint. Id. at 4, 7. The appellant’s statement relied on his OSC

complaint; therefore, we look to the complaint itself to determine if the appellant

raised a violation of his veterans’ preference rights. Id. at 7, 21-36. In his

complaint, the appellant identified himself “[a]s a ten-point veteran preference

applicant” and asserted that he was “denied being considered for a position for

which [he] believe[d] [he was] qualified.” Id. at 25-26, 31. Specifically as to his

qualifications, he asserted that the agency failed to account for relevant job

experience that he listed on the résumé that he submitted with his job application

for the Support Services Supervisor position. Id. at 25-26, 65, 70-71. The Board

has jurisdiction over an appellant’s claim that a hiring agency did not comply

with 5 U.S.C. § 3311(2) and 5 C.F.R. § 302.302(d) by failing to “adequately

consider[]” his “experience and work history” when reviewing his application.

Miller v. Federal Deposit Insurance Corporation, 818 F.3d 1361, 1365-67 (Fed.

Cir. 2016). This scenario is precisely what the appellant alleged occurred in his

OSC complaint. IAF, Tab 4 at 25-26, 31.

¶27 We recognize that, as the administrative judge observed, the appellant went

on to allege that the agency did not credit his experience in reprisal for

whistleblowing. ID at 17-19; IAF, Tab 4 at 26, 31. Further, the appellant did not

draw a connection in his OSC complaint between his status as a preference

eligible and the agency’s decision not to hire him. IAF, Tab 4 at 25-26, 31.

However, we disagree with the implication that the appellant was required to

specifically allege that the agency violated VEOA or his veterans’ preference

rights in his OSC complaint or cite to 5 U.S.C. § 3311(2) and 5 C.F.R.

§ 302.302(d).

¶28 The purpose of 5 U.S.C. § 3330a is “to assist veterans in obtaining gainful

employment with the federal government and to provide a mechanism for

enforcing this right.” Kirkendall, 479 F.3d at 841. The Board has declined to

find that an appellant failed to state a claim under VEOA when he did not identify

15

the statute or regulation that he believed an agency violated, as required under

5 C.F.R. § 1208.23(a)(3). Young v. Federal Mediation and Conciliation Service ,

93 M.S.P.R. 99, ¶ 7 (2002), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Similarly, in

the context of a VEOA claim, the Board has favorably analogized to the rule

applicable to claims arising under the Uniformed Services Employment and

Reemployment Rights Act of 1994 (USERRA) that a n appellant can establish

Board jurisdiction without making explicit reference to USERRA or any of its

provisions, so long as the appellant articulates facts sufficient to assert a claim.

Id., ¶ 6 (citing Yates v. Merit Systems Protection Board, 145 F.3d 1480, 1485

(Fed. Cir. 1998) (finding that an appellant established jurisdiction over a

USERRA appeal based on her factual allegations before the Board even though

she did not “mention USERRA or . . . make any allegation of discrimination”

based on her uniformed service)). By alleging that he was a preference eligible

and that the agency’s conduct in connection with his nonselection violated an

identifiable veterans’ preference requirement, the appellant raised a VEOA claim

in his OSC complaint as to the Support Services Supervisor job. Therefore, we

remand the appeal to the administrative judge for further proceedings, including

the appellant’s requested hearing, and a determination as to whether the

circumstances here warrant equitably tolling the deadline. IAF, Tab 1 at 2.

¶29 As to the VSR position, the administrative judge determined that the

appellant did not raise a genuine dispute of material fact in support of his

argument that the unavailability of the OSC investigator handling the appellant’s

complaint caused him to miss his DOL complaint filing deadline. ID at 17,

19-20; IAF, Tab 4 at 7, 40-43. The appellant disputes that finding on review.

PFR File, Tab 1 at 8-9. For the reasons explained below, we agree with the

administrative judge.

¶30 The appellant has the burden of establishing that equitable tolling is

warranted under the circumstances. Ledbetter v. Department of Veterans Affairs,

2022 MSPB 41, ¶ 12. Equitable tolling is a rare remedy that is to be applied in

16

unusual circumstances and generally requires a showing that the appellant has

been pursuing his rights diligently and some extraordinary circumstances stood in

his way. Id., ¶ 8. One of the bases for equitably tolling a deadline is if an agency

misleads an appellant into missing a deadline by providing inaccurate

information. Hemann v. Department of Veterans Affairs, 2022 MSPB 46, ¶¶ 1, 7,

9-20 (finding that the deadline for filing the appeal would be equitably tolled

when the appellant’s former employing agency inaccurately advised him that he

had 30 days, instead of 10 business days, to appeal his removal under 38 U.S.C.

§ 714). Here, the appellant does not state that OSC provided him with inaccurate

information. Rather, his claim is that the OSC investigator was not available to

advise the appellant to file a DOL complaint within 60 days of his nonselection.

IAF, Tab 4 at 7. We agree with the administrative judge that the appellant’s

assertions do not provide a basis for concluding that he exercised due diligence or

that extraordinary circumstances stood in his way. 9

¶31 Accordingly, we remand this case to the Western Regional Office. On

remand, the administrative judge shall allow the parties to submit further

evidence and argument and hold a hearing on the issue of whether to equitably

toll the appellant’s untimely filed DOL complaint as to his nonselection for the

Support Services Supervisor position. The administrative judge shall then issue a

remand initial decision. In his remand initial decision, the administrative judge

should incorporate his findings that the appellant’s DOL complaint was untimely

filed and that he did not establish a dispute of material fact entitling him to

9

A factual dispute is “material” for purposes of creating a genuine dispute of material

fact entitling an appellant to a hearing on the merits of his VEOA appeal if, under the

governing law, its resolution could affect the outcome. Oram, 2022 MSPB 30, ¶ 9 &

n.5. The appellant’s assertions here, even if true, do not provide a basis for tolling the

60-day deadline as to the VSR position and, therefore, are not material to that issue.

The administrative judge essentially found as much. ID at 19-21. To the extent that the

administrative judge found, in the alternative, that the appellant’s statements were not

credible, that determination was unnecessary to his decision not to equitably toll the

deadline. ID at 18-20. Therefore, we do not address the appellant’s arguments on

review contesting the administrative judge’s credibility findings. PFR File, Tab 1 at 8.

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equitable tolling of his untimely complaint as it concerns the VSR position, as

modified to eliminate his reliance on credibility determinations.

ORDER

¶32 For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Opinion and Order.

Gina K. Grippando

Clerk of the Board

Washington, D.C.