Opinion

Richard Lee v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Oct 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.7%

noting “equitable tolling is available only when the lateness is attributable, at least in part, to misleading government action”

How later courts described this case

noting “equitable tolling is available only when the lateness is attributable, at least in part, to misleading government action”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD LEE, DOCKET NUMBER

Appellant, NY-3330-21-0040-I-1

DEPARTMENT OF COMMERCE, DATE: October 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard Lee , New York, New York, pro se.

David M. Brown , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied corrective action pursuant to the Veterans Employment Opportunities Act

of 1998 (VEOA). Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. We MODIFY the initial decision to

supplement the administrative judge’s analysis of equitable tolling, still finding

that the appellant did not prove that equitable tolling should be applied and

denying his request for corrective action. Except as expressly MODIFIED by this

Final Order, we AFFIRM the initial decision.

BACKGROUND

The appellant applied for a Geographer position with the agency. Initial

Appeal File (IAF), Tab 1 at 6, Tab 7 at 22-29. In his application, the appellant

submitted a statement of service in lieu of a DD-214 because he was on active

military duty and he did not have a DD-214. IAF, Tab 1 at 6. At some point, the

appellant learned that he was not selected for the position. 2 Id.

On December 23, 2020, the appellant filed a complaint with the Department

of Labor (DOL) alleging that the agency violated his rights under VEOA when it

failed to consider his application because he provided a statement of service in

lieu of a DD-214. IAF, Tab 1 at 6, 8-11. On January 6, 2021, DOL issued a

There is a discrepancy in the record as to when the appellant learned of the

nonselection. For example, the appellant asserted that he learned of the nonselection on

July 7, 2020, IAF, Tab 1 at 4, but the agency stated that he learned of the nonselection

on February 25, 2020, IAF, Tab 7 at 5. We need not resolve this discrepancy because,

even if we used the appellant’s date, it does not change the outcome.

letter dismissing the appellant’s complaint because it was not filed within 60 days

from the date of the alleged violation. Id. at 10-11.

The appellant filed an appeal with the Board. IAF, Tab 1. In his initial

appeal, the appellant stated that he made inquiries to various agencies regarding

the nonselection, but he received no response. Id. at 6. Specifically, he stated

that he filed a service request with the DOL National Contact Center on

September 1, 2020, but he did not receive a response until December 11, 2020; he

emailed two Veterans Employment and Training Service (VETS) staff persons;

and he emailed vet_employment@opm.gov on July 7, 2020, and November 5,

2020, but he did not receive a response. Id. The administrative judge issued an

order, noting that the Board may not have jurisdiction over the appeal and

instructing the appellant to file a submission showing, among other things, “the

date [he] believe[d] the agency violated [his] veterans’ preference rights, the date

[he] filed a complaint with the Secretary of Labor, and the date [he] received

written notice, if any, from the Secretary.” IAF, Tab 4 at 6-7. The order

explained the conditions under which equitable tolling can be established,

instructed the appellant to show that the deadline should be equitably tolled if he

was late in filing with the Secretary, and directed him to produce any

documentation supporting his claims. Id. at 5-6. The appellant did not file a

response. The agency filed a motion to dismiss the appeal for lack of

jurisdiction. IAF, Tab 7. Without holding a hearing, the administrative judge

issued an initial decision denying corrective action, finding that there was no

genuine dispute that the appellant did not file a complaint with the Secretary of

Labor within 60 days of the alleged violation and concluding that he did not

establish that equitable tolling should be applied. IAF, Tab 8, Initial Decision

(ID) at 4-7.

The appellant has filed a petition for review, and the agency has filed a

response. Petition for Review (PFR) File, Tabs 1, 3. In his petition for review,

the appellant alleges that the administrative judge failed to consider his argument

that equitable tolling should apply based on his contacts with the DOL National

Contact Center, two “VETS labor representatives,” and vets@doc.gov. PFR File,

Tab 1 at 3-4. The appellant states that equitable tolling should apply because of

the COVID-19 pandemic and because he was misled. Id. at 4. He also disputes

the merits of whether he was entitled to veterans’ preference in this hiring action.

Id. at 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

The parties do not appear to dispute that the appellant’s December 23, 2020

complaint with the Secretary of Labor was untimely filed. Nonetheless, we must

consider whether equitable tolling should apply to excuse the appellant’s

untimely filing. See Kirkendall v. Department of the Army, 479 F.3d 830, 835

(Fed. Cir. 2007) (en banc) (stating that the Board has the authority and the

obligation to consider whether DOL’s finding that a VEOA complaint was

untimely was erroneous); Garcia v. Department of Agriculture, 110 M.S.P.R.

371, ¶¶ 8-13 (2009) (applying the holding in Kirkendall and stating that the

60-day time limit for filing a complaint with the Secretary of Labor under

5 U.S.C. § 3330(a)(2)(A) is not jurisdictional and is subject to equitable tolling).

The Supreme Court has stated that equitable tolling should be applied only

“sparingly.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990).

Equitable tolling may apply “where the claimant has actively pursued his judicial

remedies by filing a defective pleading during the statutory period” or “where the

complainant has been induced or tricked by his adversary’s misconduct into

allowing the filing deadline to pass.” Id. (internal citations omitted). Equitable

tolling is a rare remedy that is to be applied in unusual circumstances and

generally requires a showing that the litigant has been pursuing his rights

diligently and some extraordinary circumstances stood in his way. Heimberger v.

Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014).

On review, the appellant argues that equitable tolling should apply because

he was “misled” when he contacted multiple agencies that failed to respond to

him or told him that he had “no further appeal rights.” PFR File, Tab 1 at 4. The

appellant attaches to his petition for review an email chain with vets@doc.gov,

beginning June 29, 2020. 3 PFR File, Tab 1 at 6-7. His June 29, 2020 email stated

that the agency improperly found him ineligible for the position and inquired as

to the propriety of the agency’s decision. Id. at 6. After some correspondence

with an unidentified agency official, 4 the appellant, on August 5, 2020, requested

information about with whom to file a formal complaint. Id. The unidentified

agency official asked for a copy of the front page of the vacancy announcement

and offered to contact the Human Resources Specialist to get clarification, but the

appellant indicated that he had already spoken to and emailed the Branch Chief

and the Human Resources Specialist, and he stated that he wanted to talk to

someone else to see if they were correct. Id. at 7. Ultimately, the agency official

stated that he did not know anyone else to whom he could refer the appellant. Id.

The Board generally will not consider evidence submitted for the first time

with a petition for review absent a showing that it was unavailable before the

record was closed before the administrative judge despite the party’s due

diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The

appellant had the opportunity to develop the record before the administrative

judge; however, he did not respond to the order requiring him to provide

additional evidence and argument, and he has not argued that the June 29, 2020

email chain was unavailable prior to the close of record before the administrative

The date of this email undermines the appellant’s assertion that he did not learn of the

nonselection until July 7, 2020. However, as noted above, we need not resolve this

discrepancy.

The email chain that the appellant provides on review includes numerous references to

“[Quoted text hidden]” in the appellant’s emails and the agency official’s emails. Id. at

6-7. We do not understand what this bracketed language means in this context, but it

seems to show that the appellant did not provide the full chain of correspondence

between him and the agency official.

judge. Even if we were to consider this email chain, we find that the appellant

did not prove that the agency engaged in any misrepresentation or misleading

statements that caused him to miss the statutory deadline. See, e.g., Frazer v.

United States, 288 F.3d 1347, 1353-54 (Fed. Cir. 2002) (noting “equitable tolling

is available only when the lateness is attributable, at least in part, to misleading

government action”). Cf. Heimberger, 121 M.S.P.R. 10, ¶ 12 (finding that

confusing language in a letter drafted by the Office of Special Counsel, which

notified the appellant of two options without informing her of the consequences

of electing one over the other, could have affirmatively misled her).

The appellant reiterates on review that he contacted the DOL National

Contact Center. PFR File, Tab 1 at 4. He explained in his initial appeal that he

filed a “service request” with the DOL National Contact Center on September 1,

2020, but he did not hear back until December 11, 2020, when he was directed “to

the proper resource.” IAF, Tab 1 at 6. Here, too, the appellant has not described

or provided a copy of any misleading information that the DOL National Contact

Center provided to him. We further find that the appellant failed to exercise due

diligence because he did not, in any way, follow up with the DOL in the more

than 3 months between September 1, 2020, and December 11, 2020.

Finally, the appellant states that he emailed two VETS staff members, and

he provides their email addresses. PFR File, Tab 1 at 4. However, the appellant

has not explained who the individuals are, why he emailed them in the first place,

on what dates he emailed them, or the contents of his emails. Id. He also does

not state if he received any response from either of these individuals or the

contents of any such responses.

In conclusion, the appellant has not proven that he was misled, induced, or

tricked into missing the statutory deadline; he did not offer any evidence to

support his contention that he was told by any of these contacts that he had “no

further appeal rights;” and we find that he has not proven that equitable tolling

should be applied on this basis. Moreover, he has not described or provided any

document that would lead us to conclude that he filed a defective pleading within

the statutory period. Accordingly, we affirm the administrative judge’s finding

that equitable tolling should not apply and her decision to deny corrective action.

We have considered the appellant’s remaining arguments and find them

unavailing. For example, the appellant has not explained why the COVID -19

pandemic constitutes grounds for equitable tolling. In light of our decision to

affirm the administrative judge’s conclusion that equitable tolling should not

apply and to deny corrective action, we need not address whether the agency

properly applied veterans’ preference as the appellant alleged in his initial appeal

or asserts on review. Therefore, we deny the petition for review and affirm the

initial decision as modified herein.

NOTICE OF APPEAL RIGHTS 5

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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.

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. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

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.

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