William Cunningham v. Department of Labor

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM TYRONE CUNNINGHAM, DOCKET NUMBER

Appellant, DC-4324-24-0204-I-1

v.

DEPARTMENT OF LABOR, DATE: May 18, 2026

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

William Tyrone Cunningham , Washington, D.C., pro se.

Jennifer Gold , Esquire, and Matthew Babington , Esquire,

Washington, D.C., for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

REMAND ORDER

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

dismissed his Uniformed Services Employment and Reemployment Rights Act of

1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) appeal as

barred by the doctrine of laches. For the reasons discussed below, we GRANT the

1

A nonprecedential order is one that the Board has determined does not add significantly

to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders

have no precedential value; the Board and administrative judges are not required to

follow or distinguish them in any future decisions. In contrast, a precedential decision

issued as an Opinion and Order has been identified by the Board as significantly

contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

appellant’s petition for review, VACATE the initial decision, and REMAND the

case to the regional for further adjudication in accordance with this Remand Order.

BACKGROUND

Effective December 9, 2016, the agency terminated the appellant’s

employment as a GS-12 IT Specialist while he was serving a 1-year probationary

period. Initial Appeal File (IAF), Tab 21 at 189-193. The appellant challenged his

probationary termination in an earlier appeal, and the Board found that it lacks

jurisdiction over this claim under chapter 75 or 5 C.F.R. §§ 315.805-.806(a)-(c).

Cunningham v. Department of Labor, MSPB Docket No. DC-315H-17-0167-I-1

(0167 Appeal), Final Order at 2-5 (July 27, 2022). The Board’s decision was

affirmed by the Court of Appeals for the Federal Circuit (Federal Circuit),

Cunningham v. Merit Systems Protection Board, No. 22-2088, 2023 WL 177698

(Fed. Cir. Jan. 13, 2023) (per curiam), and the U.S. Supreme Court denied the

appellant’s request for certiorari, ___ U.S. ___, 144 S. Ct. 81 (Oct. 2, 2023).

The appellant filed a second appeal alleging that the agency violated the

Veterans Employment Opportunities Act of 1998 (VEOA) in connection with his

December 2016 probationary termination and also raising his March 2017

nonselection for a GS-14 position. Cunningham v. Department of Labor, MSPB

Docket No. DC-3330-24-0220-I-1, Initial Appeal File (0220 AF), Tab 1 at 2, 117.

An administrative judge dismissed that appeal on the basis that the appellant did

not meet the time limit for filing a complaint with the Secretary of Labor.

Cunningham v. Department of Labor, MSPB Docket No. DC-3330-24-0220-I-1,

Initial Decision (0220 ID) at 1, 3-6. Because neither party filed a petition for

review from the initial decision in the appellant’s VEOA appeal, that decision is

now final. See 5 C.F.R. § 1201.113.

On December 13, 2023, the appellant filed the instant USERRA appeal,

alleging that the agency discriminated against him based on his former military

service when it took a number of actions during his employment culminating in his

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December 2016 probationary termination and when it subsequently did not select

him for three higher-level positions in 2017. IAF, Tab 1 at 2, 120-21, Tab 9 at 4-7,

10-11, 16-19, Tab 14 at 3. The appellant alleged that his first-line supervisor, S.S.,

and his second-line supervisor, T.M., among others, were either responsible for or

aware of the action culminating in his termination. IAF, Tab 27 at 7.

The agency filed a motion to dismiss the appeal, arguing that the appeal

should be dismissed based on both the doctrines of laches and res judicata or

alternatively for lack of jurisdiction. IAF, Tab 20. The appellant submitted a

response in which he argued that the agency’s motion was untimely filed. IAF,

Tab 27 at 4-5. He also disagreed with the agency that his appeal should be

dismissed, including arguing that laches should not bar his appeal because

USERRA appeals have no statute of limitations. Id. at 5-9. On April 19, 2024, the

administrative judge issued an initial decision, dismissing the appeal after applying

the doctrine of laches, finding that the appellant’s more than 6-year delay in filing

this appeal unreasonably prejudiced the agency’s ability to defend itself. IAF,

Tab 28, Initial Decision (ID) at 1, 3-5.

The appellant has timely filed a petition for review. Petition for Review

(PFR) File, Tab 1. The gravamen of his petition is that the administrative judge

erred in his laches determination and that the agency discriminated against him

based on his military service. Id. The agency has responded to the petition for

review, and the appellant has replied. PFR File, Tabs 4, 6.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly dismissed the appellant’s non-selection claims

as barred by the doctrine of laches, but the agency did not prove prejudice

regarding the appellant’s remaining claims.

The administrative judge found that the appellant’s “more than 6-year delay

in filing this USERRA appeal [was] unreasonable.” ID at 4. The administrative

judge also found that some witnesses were no longer available, witnesses’

memories had faded, and relevant documents had been lost. ID at 4-5. While we

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agree with the application of laches to the appellant’s nonselection claims, the

agency did not establish prejudice regarding the appellant’s remaining claims

regarding his probationary employment and termination.

The equitable doctrine of laches bars an action when an unreasonable delay

in bringing the action has prejudiced the responding party. Johnson v. U.S. Postal

Service, 121 M.S.P.R. 101, ¶ 6 (2014). The party asserting laches must prove both

unreasonable delay and prejudice. Id. While USERRA claims have no statute of

limitations, both the Board and Federal courts of appeals have applied laches to

USERRA cases. Id., ¶¶ 6-8 (affirming the dismissal of an appellant’s USERRA

nonselection claim as barred by laches); Garcia v. Department of State,

101 M.S.P.R. 172, ¶¶ 14-17 (2006) (finding the only time-barred defense to

USERRA claims is that of laches); Payne v. Merit Systems Protection Board,

No. 2023-2024, 2024 WL 3423018, *2-3 (Fed. Cir. July 16, 2024) (per curiam)

(affirming the Board’s finding that the appellant’s USERRA appeal was barred by

laches); 2 Maher v. City of Chicago, 547 F.3d 817, 819, 821-23, 825 (7th Cir. 2008)

(affirming a lower court’s determination that the doctrine of laches barred the

appellant’s older USERRA claims). 3 Therefore, to the extent that the appellant

argued below and reasserts on review that USERRA claims are not subject to

laches, we disagree. PFR File, Tab 1 at 24-25; IAF, Tab 27 at 6.

Unreasonable delay

The parties do not dispute the administrative judge’s determinations that the

delay at issue here was over 6 years and that such a delay is generally unreasonable.

2

The Board may rely on unpublished decisions of the Federal Circuit if it finds the court’s

reasoning persuasive, as we do here. Johnson v. Office of Personnel Management,

2022 MSPB 19, ¶ 11 n.3.

3

Decisions by the Federal Circuit are controlling authority on the Board, whereas

decisions by other circuit courts are persuasive, but not controlling, authority. Fairall v,

Veterans Administration, 33 M.S.P.R. 33, 39 (1987), aff’d per curiam, 844 F.2d 775 (Fed.

Cir. 1988); see 38 U.S.C. § 4324(d)(1) (identifying the Federal Circuit as the Board’s

reviewing court in USERRA appeals). We find the reasoning in Maher persuasive.

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ID at 3-4. We discern no basis to disturb these findings. See Pepper v. United

States, 794 F.2d 1571, 1572-74 & n 1 (Fed. Cir. 1986) (finding inexcusable for

purposes of laches a delay of 6 years before the appellant first challenged the

allegedly defective evaluation reports that served as the basis for his nonpromotion

in military grade and eventual military discharge); Johnson, 121 M.S.P.R. 101, ¶ 7

(finding an appellant’s 8 year delay in filing his USERRA appeal was

unreasonable); Brown v. Department of the Air Force, 88 M.S.P.R. 22, ¶¶ 2-3, 6, 9

(2001) (finding that, although there was no statutory time limit for seeking

corrective action from the Office of Special Counsel (OSC), laches barred an

appellant’s individual right of action appeal because he did not seek corrective

action from OSC until 6 years after the underlying events took place). Further,

rather than claiming ignorance of his rights, the appellant continues to assert on

review, as he did below, that his delay in filing his USERRA appeal was a litigation

strategy. IAF, Tab 5 at 7; PFR File, Tab 1 at 15-16; Johnson, 121 M.S.P.R. 101,

¶ 7 (affirming an administrative judge’s determination that laches barred an

appellant’s claim because he took no steps to discover if he had any USERRA

appeal rights even though he allegedly believed that the agency had discriminated

against him based on his military service).

The appellant reargues on review that he reasonably delayed filing this

appeal so as not to cause confusion between this USERRA appeal, his previous

probationary termination appeal, and a discrimination complaint that he was

pursuing before the Equal Employment Opportunity Commission (EEOC). PFR

File, Tab 1 at 15-16; IAF, Tab 27 at 6, 9. In particular, he indicates that he wanted

to prevent the agency from seeking to consolidate his various challenges to his

probationary termination into one case. PFR File, Tab 1 at 15-16; IAF, Tab 27 at 6.

He recounts his efforts in pursuing these prior cases as well as a separate lawsuit he

filed against S.S. PFR File, Tab 1 at 15; IAF, Tab 27 at 5-7.

Some courts have contemplated that a party’s delay in filing a case in court

while pursuing administrative remedies may be reasonable. Maher, 547 F.3d

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at 822; Brundage v. United States, 504 F.2d 1382, 1385-86 (Ct. Cl. 1974),

abrogated on other grounds by Cornetta v. United States, 851 F.2d 1372, 1378-79

(Fed. Cir. 1988). The purpose of such a rule is to encourage administrative

resolution of cases. Brundage, 504 F.2d at 1385-86. It is debatable whether the

rule stated in these court decisions applies before the Board. The purpose of the

rule is not served here because the appellant’s various administrative claims burden

the same administrative system in which he is now pursuing this appeal. Cf.

Maples v. Defense Logistics Agency, 31 M.S.P.R. 667, 668-69, 671 (1986)

(explaining that the fact that an appellant was challenging the same underlying

removal in Federal district court or sought to reach a settlement with the agency did

not constitute good cause for his untimely filed petition for review), aff’d, 824 F.2d

980 (Fed. Cir. 1987) (Table); Grasty v. Department of the Navy, 31 M.S.P.R. 438,

439, 441 (1986) (finding that an appellant’s pursuit of his formal discrimination

complaint in court did not constitute good cause for waiver of the time limit for

requesting Board review of an arbitration decision upholding the same removal).

In any event, the appellant waited a substantial amount of time before

seeking a remedy for a USERRA violation. As described by the appellant, his

EEOC case concerned race discrimination in connection with his schedule. IAF,

Tab 1 at 27. He does not claim that he sought to remedy discrimination based on

military service in that action. Id. Nor did the appellant allege discrimination

based on his miliary status in connection with his prior Board appeal challenging

his probationary termination, and he did not raise any nonselection claims in that

action. E.g., PFR File, Tab 1 at 15; 0167 Appeal, Initial Appeal File, Tab 1 at 6,

Tab 31 at 4-6. The only evidence in the record as to when the appellant first raised

claims of military discrimination or sought to challenge a nonselection is his

untimely complaint he filed with the agency’s Veterans’ Employment and Training

Service (VETS) dated December 1, 2023. IAF, Tab 1 at 13, 15, 23-27; 0220 ID

at 4-5. The VETS complaint served as the basis for the appellant’s prior VEOA

appeal before the Board. 0220 AF, Tab 1 at 3, 10-14; 0220 ID at 4-5. However,

7

there is still a 6-year gap between the underlying events and the filing of the VETS

complaint. Therefore, we agree with the administrative judge that the appellant’s

delay in filing the instant appeal was unreasonable.

Prejudice to the agency

The administrative judge found that the agency was prejudiced because

several key witnesses had left the agency, witnesses’ memories had faded, and

agency records were no longer available. ID at 4-5. The appellant raises a number

of challenges to this reasoning on review. PFR File, Tab 1 at 6-12, 16-17, 23. We

agree with the administrative judge that the agency proved prejudice with respect to

the appellant’s nonselection claims, but not with respect to his remaining claims.

The party asserting laches must prove prejudice. Cornetta, 851 F.2d at 1380;

Johnson, 121 M.S.P.R. 101, ¶ 6. Here, the agency argued that the appellant’s delay

harmed its defense. IAF, Tab 20 at 17. A party may prove this type of “defense

prejudice” based on “loss of records, destruction of evidence, fading memories, or

unavailability of witnesses.” Cornetta, 851 F.2d at 1378; see Johnson,

121 M.S.P.R. 101, ¶ 9 (finding prejudice based on the potential unavailability of

some relevant witnesses coupled with the loss of documents that could refresh their

recollections of the events); Brown, 88 M.S.P.R. 22, ¶¶ 8-9 (concluding that an

agency proved prejudice based on the loss of both documents and personnel that

could give the agency information regarding the actions at issue and because

employees in the agency who were in the appellant’s chain of command had vague

or no memory of him).

The agency argued, supported by a signed declaration, that consistent with

the applicable 2-year record retention policy, it no longer maintains the “2016 or

2017 vacancy records for the three vacancies at issue in this matter.” IAF, Tab 26

at 4-5. Further, while the agency had a practice of maintaining vacancy files for 5

years, it had no reason to do so here. IAF, Tab 26 at 4-5. The appellant did not

raise any nonselection claim until more than 6 years after the vacancies closed,

8

when he filed his VETS complaint in December 2023. IAF, Tab 1 at 17, 20-21, Tab

20 at 22-23; PFR File, Tab 4 at 13-14.

The agency also argued that coupled with this loss of documents and other

data, it was unable to locate B.P., who the appellant identified as a witness in

connection with one of his nonselections. IAF, Tab 9 at 6-7, Tab 20 at 20. The

agency stated B.P. “is no longer with the Department, [and] despite the [a]gency’s

efforts to locate him, his current whereabouts are unknown.” IAF, Tab 20 at 20.

An agency is substantially prejudiced in defending a nonselection appeal when the

retirement of relevant witnesses is coupled with the absence of relevant documents

concerning the selection process. Johnson, 121 M.S.P.R. 101, ¶¶ 8-9. Neither the

appellant nor the agency has identified the officials responsible for his

nonselections. Due to the appellant’s lack of specificity regarding the individuals

involved in his nonselection claims or who may have retained relevant paper

records, coupled with the unavailability of B.P. and electronic documents, we agree

that the agency is substantially prejudiced in defending the appellant’s

nonselection claims. We therefore agree with the administrative judge’s finding of

prejudice with respect to these claims.

However, we disagree with the administrative judge’s determination that the

agency proved prejudice with respect to the appellant’s remaining arguments. The

agency argued below that the departure of S.S. and T.M., coupled with their time

spent in new jobs, established prejudice to the agency. IAF, Tab 20 at 20-21. On

review, the appellant reargues that the fact that S.S. and T.M. have departed from

the department where they worked with the appellant is not sufficient to establish

unavailability, and therefore prejudice. PFR File, Tab 1 at 7; IAF Tab 27 at 7. We

agree.

The agency stated that T.M. continues to work for the agency in a different

office and that S.S. is now employed by the Department of Homeland Security.

IAF, Tab 20 at 20; PFR File, Tab 4 at 11. Typically, Federal employees, regardless

of whether they are still employed by the agency that is party to a proceeding, can

9

be required to provide testimony or evidence when ordered to do so by an

administrative judge. 5 C.F.R. § 1201.33. The fact that S.S. and T.M. have

transitioned to new roles within the Federal government does not prevent the

agency from defending itself.

Further, in analyzing prejudice, “[i]t is the availability and memory of

witnesses, not their employment status, that is relevant.” Hoover v. Department of

the Navy, 957 F.2d 861, 863-64 (1992) (explaining that retirement of a witness

alone is insufficient to establish prejudice). The agency’s representative merely

asserted that “after several years in other jobs and other roles, these two key

witnesses’ memories regarding their relevant prior supervisory roles with the

[a]gency, as well as regarding the detailed facts and circumstances as alleged in the

instant appeal, have naturally faded over time.” IAF, Tab 20 at 20. Neither below

nor on review, did the agency submit evidence, such as an affidavit or declaration

from S.S. or T.M., that these individuals are unable to recall the relevant events and

circumstances at issue in this appeal. Hendricks v. Department of the Navy,

69 M.S.P.R. 163, 168 (1995) (finding that the statements of a party’s

representative in a pleading do not constitute evidence). Therefore, the agency has

not substantiated its claim that S.S. and T.M.’s memories of the relevant events

have faded.

The appellant also reargues on review that despite the agency’s records

retention policies, the agency should have maintained, and he and the Board in fact

have retained, data and records relevant to his probationary employment and

termination based on his various other appeals and complaints. IAF, Tab 27 at 5-7;

PFR File, Tab 1 at 6-12. Most significantly, the appellant points to his earlier

Board appeal challenging his probationary termination from the agency. 0617 IAF,

Tab 1; PFR File, Tab 1 at 6. Litigation arising out of that appeal concluded in

October 2023, when the Supreme Court denied the appellant’s writ of certiorari.

Cunningham, ___ U.S. ___, 144 S. Ct. 81. The appellant filed the instant appeal

2 months later. IAF, Tab 1.

10

The burden is on the agency to establish the appellant’s filing delay

contributed to the destruction of relevant documents and that the inadequacy of the

remaining available documents prejudices the agency’s ability to respond.

Pueschel v. Department of Transportation, 113 M.S.P.R. 422, ¶¶ 11-12 (2010). We

are struck by the amount of evidence the appellant has presented, and that is

available in Board records, regarding his probationary termination and

employment. For example, the record contains a performance review issued to the

appellant covering the relevant time period, emails between the appellant and union

leadership regarding his allegation that his core hours were removed, a notice of

termination during probationary period, and grievance records. IAF, Tab 1 at 39-

45, 47-50, 78-79, 82-85. We cannot presume prejudice, and the agency has not

provided any specific evidence supporting its claim that its defense has been

compromised by the appellant’s dilatory conduct. See Brown, 88 M.S.P.R. 22,

¶¶ 5-6 (explaining that the Board cannot presume that an appellant’s delay caused

prejudice to the agency in connection with a laches defense (citing Cornetta,

851 F.2d at 1378-80 (concluding that “a presumption to prejudice is

unsupportable” in connection with a laches defense)).

Because the agency did not meet its burden in proving that the appellant’s

filing delay was prejudicial to its ability to defend itself against all of the

appellant’s claims, his appeal is not barred by laches.

We decline to consider the appellant’s new arguments on review regarding the

reasonableness of his filing delay.

On review, the appellant submits new evidence and makes new arguments

regarding the laches issue. We decline to consider these arguments and evidence

here.

The Board will not consider an argument raised for the first time in a petition

for review absent a showing that it is based on new and material evidence not

previously available despite the party’s due diligence. Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant responded to the

11

agency’s motion to dismiss his appeal on the basis of laches on February 28, 2024.

IAF, Tab 27. The administrative judge issued his initial decision on April 19, 2024.

With his May 2024 petition for review, the appellant presents new arguments about

why his delay in filing this USERRA appeal was reasonable, pointing to difficulties

he encountered filing documents with the Board in person and online due to the

Board’s COVID policies and the Board’s transition to its e-Appeal filing system,

and to his concerns about the Board’s prior “backlog” and lack of quorum. PFR

File, Tab 1 at 13-14. He also disputes that the agency was prejudiced by the delay,

asserting for the first time that the agency failed to retain and provide him with

records as required by the Fair Labor Standards Act (FLSA) and the Freedom of

Information Act (FOIA). Id. at 11-12, 23. The appellant has not explained why he

did not raise the arguments below. Because he has not established that these

arguments were based on evidence that was not previously available to him despite

his due diligence, we have not considered them.

Similarly, the appellant submits new documents for the first time on review.

These include alerts of MSPB e-Appeal system outages, various versions of the

MSPB’s COVID-19 telework and safety plan, a timeline of the appellant’s civil

lawsuit against S.S., FOIA requests, and documents related to his EEOC case. PFR

File, Tab 1 at 29-98. Most of these documents date from March 2017 to October

2023, at least 5 months before the appellant’s response to the agency’s motion to

dismiss and 6 months prior to the initial decision. Id. at 29-57, 59-98. The

remainder of the records submitted on review—notices that the Board’s e-Appeal

system would be offline for periods ranging from 1 hour to 4 hours on discrete

dates in April and May 2024—are not materials to the laches issue before us. Id. at

57-58. Under 5 C.F.R. § 1201.115, 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). Therefore, we will not consider these documents further.

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Any abuse of discretion by the administrative judge was harmless.

The appellant also alleges that the administrative judge abused his discretion

below by ordering the appellant to pause filing documents and by considering the

agency’s allegedly untimely motion to dismiss. The appellant alleges that he would

have submitted several of the documents he provides on review absent the

administrative judge’s order to pause submitting documents below. PFR File,

Tab 1 at 17-18, 20; IAF, Tab 15 at 1. We are not persuaded.

An administrative judge has wide discretion to control the proceedings

before him. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 12 (2013).

In order to obtain reversal based on an abuse of this discretion, an appellant must

show that any error denigrated his substantive rights. Id., ¶¶ 12, 14. The appellant

has not established that the administrative judge’s order prejudiced him by

precluding him from including any necessary documents with his response to the

agency’s motion to dismiss. His response to the motion to dismiss was filed after

the administrative judge’s order to stop filing documents, and he submitted several

other documents with his response to the agency’s motion. See IAF, Tabs 15, 27.

Accordingly, even assuming the administrative judge abused his discretion, it

would not be a basis to reverse the initial decision.

Finally, below and on review, the appellant argued that the agency’s motion

to dismiss was untimely, and therefore the administrative judge abused his

discretion by considering it. PFR File, Tab 1 at 25-26. We disagree. Although the

agency was ordered to file its motion to dismiss no later than February 19, 2024,

and the motion was filed on February 20, 2024, it is nonetheless timely filed. When

the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing

period will include the first workday after that date. 5 C.F.R. § 1201.23(a).

Because February 19, 2024, was a Federal holiday, the last day the agency could

timely file the motion was extended to February 20, 2024. Because the agency’s

13

motion to dismiss was filed on February 20, 2024, it was timely filed, and the

administrative judge did not abuse his discretion by considering it. 4

ORDER

For the reasons discussed above, we remand this appeal to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

4

We decline to consider the appellant’s arguments concerning matters that are not

relevant to the dispositive laches issue before us, including the Board’s jurisdiction over

his probationary termination, the merits the termination and other matters occurring

during his employment, and the agency processing of his EEOC case and the merits of

that case. PFR File, Tab 1 at 5-10, 12-13, 18-23, 27. The appellant may argue these

issues on remand as appropriate, consistent with the orders of the administrative judge.

To the extent that the appellant argues the administrative judge was biased based on the

relatively longer filing extensions he granted to the agency as compared to extensions he

granted to the appellant, we are not persuaded. PFR File, Tab 1 at 26; see Vaughn,

119 M.S.P.R. 605, ¶ 18 (declining to infer bias based on an administrative judge’s case-

related rulings).