Opinion

Eric U Clark v. Department of Defense

Court: Merit Systems Protection Board
Filed: Jan 15, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.7%

recognizing that Board dismissals of removal appeals as untimely filed is a decision on procedural grounds

How later courts described this case

recognizing that Board dismissals of removal appeals as untimely filed is a decision on procedural grounds

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ERIC URIAH CLARK, DOCKET NUMBER

Appellant, PH-3330-16-0355-I-1

DEPARTMENT OF DEFENSE, DATE: January 15, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Eric Uriah Clark , Waldorf, Maryland, pro se.

Kevin Greenfield and Lundi M. Shafiei , Esquire, 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

dismissed the appeal for lack of jurisdiction. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision contains

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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). For

the reasons discussed below, we DENY the appellant’s petition for review.

However, we VACATE the initial decision’s findings that the doctrine of

collateral estoppel bars the appellant’s claim under the Veterans Employment

Opportunities Act of 1998 (VEOA) and instead DENY the appellant’s request for

corrective action under VEOA on the basis that he failed to meet the time limit

for filing a complaint with the Department of Labor (DOL) set forth at 5 U.S.C.

§ 3330a(a)(2)(A). We FORWARD the appellant’s potential individual right of

action (IRA) and Uniformed Services Employment and Reemployment Rights Act

of 1994 (USERRA) claims to the Northeastern Regional Office for further

adjudication in accordance with this Final Order.

BACKGROUND

On June 13, 2016, the appellant filed a Board appeal challenging his

August 2012 removal from a Personnel Security Specialist position with the

agency. Clark v. Department of Defense, MSPB Docket No. PH-3330-16-0355-

I-1, Initial Appeal File (IAF), Tab 1 at 1, 7. The appellant asserted that the

agency removed him in violation of his veterans’ preference rights and in

retaliation for whistleblowing activity. Id. at 2. The administrative judge issued

a jurisdictional order informing the appellant of what he had to show to establish

Board jurisdiction over his VEOA appeal, including the statutory deadlines for

filing a complaint with DOL. IAF, Tab 2 at 2-3. The appellant responded by

requesting a hearing on the merits of his appeal and attaching documents from

DOL and the Office of Special Counsel (OSC). IAF, Tab 6, Tab 7, Initial

Decision (ID) at 5. 2

In an initial decision based on the written record, the administrative judge

dismissed the appeal. ID. She found that, although the appellant previously had

appealed his chapter 43 removal, that appeal was dismissed as untimely filed with

no good cause shown for the untimeliness, and that decision became the final

decision of the Board on his removal on January 2, 2013, when the appellant did

not file a petition for review. ID at 2; Clark v. Department of the Air Force,

MSPB Docket No. PH-0432-13-0033-I-1, Initial Decision (Nov. 28, 2012)

(0033 ID). The administrative judge also found that the appellant filed an equal

employment opportunity (EEO) complaint with the agency on March 7, 2016,

challenging his removal and several nonselections based on negative information

contained in his personnel file. ID at 2. By final agency decision dated May 13,

2016, the agency dismissed the appellant’s claim regarding his removal because

he had elected to appeal his removal to the Board and dismissed the remaining

claims as untimely filed. ID at 2; IAF, Tab 1 at 7-9.

Regarding the appellant’s VEOA claim, the administrative judge found that

the appellant could have asserted a violation of VEOA as a defense in the prior

appeal of his removal, but that he did not. ID at 3. The administrative judge also

found the appellant’s VEOA complaint was not timely filed with DOL and that

there was no basis to warrant equitable tolling of the statutory filing deadline. ID

at 3-4. The administrative judge further found that, because the appellant did not

timely file his previous removal appeal or establish good cause for his failure to

Due to an administrative error during the conversion of this paper appeal record to an

electronic case file, the Board cannot locate pages 6 through 14 of Tab 6 in the Initial

Appeal File. The Office of the Clerk of the Board twice issued a notice to the parties

directing resubmission of the referenced documents. Petition for Review (PFR) File,

Tabs 11-12. The agency indicated in response that it does not possess the referenced

documents. PFR File, Tab 13. The appellant did not respond to the notices.

do so, collateral estoppel applies, and the appellant cannot now assert a VEOA

claim in an effort to relitigate the prior untimely appeal of his removal. ID at 4.

Finally, although the appellant submitted documents attempting to show

that he had filed a complaint with OSC, the administrative judge found that the

documents show only that he may have initiated the complaint process, but he

failed to provide any evidence that he had received a letter from OSC terminating

its investigation. ID at 5. Because 120 days had not yet elapsed since the

appellant’s OSC filing, the administrative judge found that, to the extent the

appellant was attempting to file an IRA appeal, his appeal was premature. ID

at 5-6. Thus, the administrative judge dismissed the appeal. ID at 6.

The appellant has filed a petition for review. 3 Petition for Review (PFR)

File, Tab 7. The agency has not responded.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred when dismissing the appellant’s VEOA claim as

barred by the doctrine of collateral estoppel.

Generally, for the Board to adjudicate a VEOA claim on the merits, an

appellant must, inter alia, prove by preponderant evidence 4 that he exhausted his

remedy with DOL. Bent v. Department of State, 123 M.S.P.R. 304, ¶ 5 (2016).

To do so, an appellant must file a complaint with the Secretary of Labor “within

The appellant filed his petition for review—at most—29 minutes late. PFR File,

Tab 7. In the sworn declaration of the appellant, who is pro se, he states that he began

sending the petition for review electronically prior to the filing deadline but

encountered technical difficulties and was logged off the system. PFR File, Tab 9.

Given the appellant’s attempt to file before the deadline, the minimal delay, and that the

agency has not alleged any prejudice from the delay, we find that the appellant has

shown good cause for the untimely filing. See Social Security Administration v. Price,

94 M.S.P.R. 337, ¶ 7 (2003) (finding that the agency exercised due diligence and

showed good cause for filing a petition for review 34 minutes late when its attorney

began sending the petition prior to the filing deadline but experienced technical

problems), aff’d, 398 F.3d 1322 (Fed. Cir. 2005).

Preponderant evidence is defined as, the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

60 days after the date of the alleged violation.” 5 U.S.C. § 3330a(a)(2)(A). This

60-day time limit is not a jurisdictional requirement and thus is subject to

equitable tolling if the circumstances warrant. Garcia v. Department of

Agriculture, 110 M.S.P.R. 371, ¶ 12 (2009). Equitable tolling is a rare remedy

that is to be applied sparingly 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). We find that the administrative judge should have solely analyzed

the appellant’s VEOA claim against this framework. She committed an error by

instead applying collateral estoppel as a result of the appellant’s untimely

chapter 43 removal appeal previously filed with the Board.

Collateral estoppel, or issue preclusion, precludes a party from relitigating

an issue when the following criteria are met: (1) the issue is identical to one in a

prior action; (2) the issue was actually litigated in the prior action; (3) the

previous determination of that issue was necessary to the resulting judgment; and

(4) the party against whom issue preclusion is sought had a full and fair

opportunity to litigate the issue in the prior action, either as a party to the earlier

action or as one whose interests were otherwise fully represented in that action.

McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15 (2005). For the

following reasons, collateral estoppel does not apply to the instant appeal as the

administrative judge incorrectly held in the initial decision. ID at 3-4.

First, the sole issue in the appellant’s prior appeal was whether he timely

filed his chapter 43 removal appeal with the Board, and if not, whether good

cause existed to waive the missed deadline. 0033 ID at 1-5. In this instant

appeal, the issue regarding the appellant’s VEOA claim is whether he timely filed

his complaint with DOL as mandated by statute, and if not, does the evidence

warrant the application of equitable tolling. The filing time limits, procedures,

requirements, and basis for waiving or accepting late filings for removal appeals

filed with the Board, compared to VEOA complaints filed with DOL, differ in

many respects. 5 Next, in the appellant’s previous removal appeal, the timeliness

of the filing of his VEOA complaint with DOL was not adjudicated, as he never

raised such a claim. 6 Id.; ID at 3. Lastly, the appellant did not have a full and

fair opportunity to adjudicate the timeliness of his VEOA complaint filing with

DOL in his previous Board appeal, as he was never apprised of his burden and

given an opportunity to brief the issue. Thus, we vacate the administrative

judge’s findings that the appellant’s VEOA claim was barred before the Board by

the doctrine of collateral estoppel. See Matosian v. Department of the Air Force,

56 M.S.P.R. 689, 694 (1993) (holding that the administrative judge erred in

applying collateral estoppel to preclude the appellant’s claim, as the issues were

not identical and required different standards of proof). 7

The appellant’s request for corrective action under VEOA is denied because he

failed to meet the statutory time limit for filing a complaint with DOL.

We must now, using the framework outlined above, examine whether the

appellant’s VEOA claim is properly before the Board. Here, the undisputed

evidence of record shows that the administrative judge apprised the appellant of

his exhaustion requirement with DOL, IAF, Tab 2 at 2, and that the appellant

filed his complaint with DOL in October 2016, PFR File, Tab 7 at 9. This was

For example, a removal appeal generally must be filed with the Board within 30 days

of the effective date of the action or receipt of the decision notice (whichever is later),

the filing period is regulatory in nature, and the filing period may be waived upon a

showing of good cause. 5 C.F.R. § 1201.22(b)(1), (c). The time limit to file a VEOA

complaint with DOL derives from statute, a complaint must be filed within 60 days of

the alleged violation, and the filing time limit is subject to equitable tolling. 5 U.S.C.

§ 3330a(a)(2)(A); Garcia, 110 M.S.P.R. 371, ¶ 12.

The appellant failing to raise a VEOA claim in his previous removal appeal before the

Board is irrelevant to our findings herein, as a dismissal of an appeal for failing to meet

a regulatory time limit is not entitled to a res judicata effect because it is not a decision

on the merits. Peartree v. U.S. Postal Service, 66 M.S.P.R. 332, 340 (1995).

The administrative judge also erred in holding that the dismissal of the appellant’s

previous removal appeal as untimely filed was a jurisdictional decision. ID at 4; see

Kloeckner v. Solis, 568 U.S. 41, 48-49 (2012) (recognizing that Board dismissals of

removal appeals as untimely filed is a decision on procedural grounds).

well beyond the 60-day statutory deadline of the alleged VEOA violation, as it

was more than 4 years after the agency removed the appellant. 8 5 U.S.C.

§ 3330a(a)(2)(A); IAF, Tab 3 at 13. To the extent that the appellant is raising

nonselections as part of his VEOA claim, the result is the same, as the alleged

nonselections occurred in 2014 through February 2016. 9 IAF, Tab 1 at 7-8.

Further, there has been no argument proffered by the appellant, nor is there

evidence in the record, in support of equitable tolling applying. Therefore, we

deny the appellant’s request for corrective action under VEOA on the basis that

he failed to meet the time limit for filing a complaint with DOL set forth at

5 U.S.C. § 3330a(a)(2)(A). See Garcia, 110 M.S.P.R. 371, ¶ 13 (denying an

appellant’s request for corrective action under VEOA without a hearing because

he did not meet the requirement of filing a complaint with DOL pursuant to

5 U.S.C. § 3330a(a)(2)(A)). 10

The fact that DOL categorized the appellant’s complaint as a claim under USERRA

does not change our analysis or findings on the VEOA claim. PFR File, Tab 7 at 9.

The administrative judge appeared to reach this same conclusion regarding the

nonselections. ID at 5.

On review, the appellant appears to challenge the merits of the underlying removal

action and disputes documentation contained in his personnel file concerning the length

of his probationary period. PFR File, Tab 7 at 5. We need not address these arguments

as they are irrelevant to the threshold issue of whether the appellant timely filed his

VEOA complaint with DOL and whether equitable tolling applies. The appellant also

attaches documents to his petition for review concerning his EEO complaint and raises

issues with the EEO investigatory and alternative dispute resolution processes. Id. at 5,

10-26. However, these documents also include a September 1, 2016 decision from the

Equal Employment Opportunity Commission (EEOC) Office of Federal Operations

(OFO) that affirms the final agency decision that dismissed his removal claim because

he elected to appeal his removal to the Board and dismissed his remaining claims as

untimely filed. Id. at 21-26. To the extent the appellant may be challenging OFO’s

decision dismissing his removal claim because he elected to appeal his removal to the

Board, the Board lacks jurisdiction to review this claim. See Peartree, 66 M.S.P.R.

at 341-42 (finding that an employee may not file a Board appeal under 5 C.F.R.

§ 1201.154(b), upon exhausting the agency’s EEO procedure, if she previously had

made a valid election of the direct Board procedure). To the extent the appellant may

be challenging OFO’s decision to dismiss his nonselection claims, the Board defers to a

final EEOC decision finding a complaint untimely filed. See McCoy v. U.S. Postal

Service, 108 M.S.P.R. 160, ¶ 11 (2008).

We forward the appellant’s petition for review to the regional office for docketing

as an IRA appeal. 11

The appellant has attached new evidence to his petition showing that he has

filed a complaint with OSC, and he appears to renew his assertion that his

removal was in retaliation for whistleblowing. PFR File, Tab 7 at 7-9, 20.

However, the appellant has not shown error in the administrative judge’s finding

that the Board lacked jurisdiction over the appeal when he first filed it because he

had not received notice from OSC that it had terminated its investigation into his

complaint and 120 days had not yet expired since he filed his complaint. See

5 U.S.C. § 1214(a)(3); Jundt v Department of Veterans Affairs, 113 M.S.P.R. 688,

¶ 6 (2010).

Nevertheless, the Board’s practice is to adjudicate an appeal that was

premature when it was filed but becomes ripe while pending with the Board. See,

e.g., Jundt, 113 M.S.P.R. 688, ¶ 7. The undisputed evidence shows that the

appellant filed a complaint with OSC no later than October 19, 2016. PFR File,

Tab 7 at 7, 20. Because 120 days have passed since that date, we find that the

appellant has exhausted his administrative remedies before OSC and that his

appeal is now ripe for adjudication. We therefore forward the appellant’s petition

for review to the regional office for docketing as an IRA appeal. See Jundt,

113 M.S.P.R. 688, ¶ 7. This IRA appeal will be deemed filed on November 19,

2016—the date that the appellant filed his petition for review. See Story v.

Department of the Air Force, 55 M.S.P.R. 222, 226 (1992) (deeming a

whistleblower claim filed as of the date of the initial misdirected filing with

Board Headquarters).

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

We forward the appellant’s petition for review to the regional office for docketing

as a USERRA appeal.

The appellant also attached new evidence indicating that he has filed a

USERRA complaint with DOL. PFR File, Tab 7 at 7-9. Because it appears that

the appellant is now attempting to raise a claim of uniformed service

discrimination before the Board under 38 U.S.C. § 4324, we forward his petition

for review to the regional office for docketing as a USERRA appeal. This

USERRA appeal will be deemed filed on November 19, 2016—the date that the

appellant filed his petition for review.

An appellant may either file a USERRA complaint with the Secretary of

Labor pursuant to 38 U.S.C. § 4322 or file an appeal directly with the Board

pursuant to 38 U.S.C. § 4324(b). Gossage v. Department of Labor, 118 M.S.P.R.

455, ¶ 8 (2012). If an appellant first files a USERRA complaint with the

Secretary of Labor, he may not file a USERRA appeal with the Board until the

Secretary notifies the appellant that he was unable to resolve the complaint. Id.

USERRA does not provide for exhaustion of the complaint before DOL as a

matter of time; it instead requires notification that the Secretary of Labor’s efforts

did not resolve the complaint. Id. Here, we have found no evidence indicating

that the appellant previously raised a USERRA claim before the Board. Thus,

under 38 U.S.C. § 4324(b)(2), the appellant may not appeal to the Board until he

receives the required notification from DOL. See id. Because it is unclear

whether the Secretary of Labor has notified the appellant that he was unable to

resolve his complaint, we are unable to determine whether the USERRA claim is

ripe for adjudication. Therefore, the administrative judge should address this

issue in the first instance and provide the parties the opportunity to present

evidence and argument regarding the Board’s jurisdiction under that statute. If

jurisdiction is established, then the administrative judge shall decide the

USERRA appeal on the merits.

NOTICE OF APPEAL RIGHTS 12

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

Boards 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.

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).

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.

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. 13 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