The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEAN M. FINCH, DOCKET NUMBER
Appellant, AT-3330-13-0870-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 6, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant.
Managing Counsel, Philadelphia, Pennsylvania, for the agency.
Sandra W. Bowens, Esquire, Memphis, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied as untimely filed the appellant’s request for corrective action under the
Veterans Employment Opportunities Act of 1998 (VEOA). Generally, we grant
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See 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, and based on the following
points and authorities, 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 and AFFIRM the initial decision which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On or around November 13, 2012, the appellant, a preference-eligible
veteran, applied for the position of Transitional City Carrier TE (Conversion
MOU) in Cleveland, Tennessee. Initial Appeal File (IAF), Tab 7 at 22. The
Office of Personnel Management thereafter disapproved the agency’s request to
pass over the appellant. Id. at 21. The appellant filed a complaint with the
Department of Labor (DOL) in which he alleged that he was denied his veterans’
preference rights in connection with his application for the Transitional City
Carrier position. See id. at 22 (Mar. 15, 2013 letter from DOL to the agency). 2
¶3 On May 10, 2013, DOL issued a letter closing the appellant’s complaint
based upon its determination that the agency: (1) had placed the appellant in the
position of Transitional City Carrier on March 20, 2013, with an effective date of
December 1, 2012; (2) was processing a “back wage payment” to him of
$16,239.55; (3) would credit him with the annual leave he would have accrued
2
The appellant’s DOL complaint is not part of the record.
3
under the governing collective bargaining agreement had he been in a pay status
from December 1, 2012 to March 19, 2013; and (4) had agreed to comply with
statutes governing his receipt of unemployment insurance from December 1, 2012
to March 19, 2013. 3 IAF, Tab 1 at 8-9. DOL informed the appellant that if he
was not fully satisfied with the resolution of his complaint, then he had the right
to appeal its decision to the Board within 15 calendar days of receipt of DOL’s
letter. Id. at 9.
¶4 The appellant received DOL’s May 10 letter on or about May 13, 2013. See
IAF, Tab 7 at 29. He did not file an appeal with the Board, however, until
July 11, 2013, approximately 6 weeks beyond the filing deadline. IAF, Tab 1. In
his appeal, the appellant did not dispute that the agency placed him in a
Transitional City Carrier position effective December 1, 2012, or that the agency
paid him $16,239.55. Rather, he claimed that the agency failed to honor an
alleged promise to place him in a career Letter Carrier position when the
Transitional City Carrier position was phased out pursuant to an agreement
management negotiated with the union in April 2013. IAF, Tab 10 at 1-2. He
also alleged that the agency erroneously failed to pay him interest on the back pay
and to make “payment on [a] leave balance entitlement.” IAF, Tab 12 at 2.
¶5 In an acknowledgment order, the administrative judge advised the appellant
of the jurisdictional and timeliness requirements for filing a VEOA appeal as well
as the criteria for establishing whether the time limits for filing such an appeal
should be equitably tolled. IAF, Tab 3 at 5-6; see also IAF, Tab 9. After both
parties submitted responses, the administrative judge issued an initial decision
denying the request for corrective action on the grounds that the appeal was
untimely filed and that the appellant had failed to establish that the time limits for
3
The DOL letter also stated that it was providing the appellant a copy of its letter to the
agency and a copy of a settlement agreement and release signed by an agency
representative. IAF, Tab 1 at 9.
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filing an appeal should be equitably tolled. IAF, Tabs 10-12, Tab 13, Initial
Decision (ID).
¶6 In his petition for review, the appellant reiterates his arguments below that
the deadline for filing his Board appeal should be equitably tolled because DOL
remained involved in his complaint after May 10, 2013, and because the agency’s
noncompliance with the terms upon which DOL resolved his complaint
demonstrates that he was induced or tricked by the agency’s misconduct into
allowing the filing deadline to pass. Petition for Review (PFR) File, Tab 3 at 3-6.
¶7 An appellant must file a VEOA appeal no later than 15 days after receiving
written notification from the Secretary of Labor concerning the results of DOL’s
investigation. 5 U.S.C. § 3330a(d)(1)(B); Gingery v. Department of the
Treasury, 110 M.S.P.R. 83, ¶ 23 (2008). As discussed above, the appellant
received such notification on or about May 13, 2013. See IAF, Tab 7 at 29.
Consequently, the deadline for filing this appeal was May 28, 2013. See 5 U.S.C.
§ 3330a(d)(1)(B). The appellant did not file this appeal until July 11, 2013,
approximately 6 weeks beyond the 15-day statutory filing deadline. IAF, Tab 1.
¶8 Nevertheless, as the administrative judge recognized, under the Federal
Circuit’s decision in Kirkendall v. Department of the Army, the 15-day filing
deadline set forth in 5 U.S.C. § 3330a(d)(1)(B) is subject to equitable tolling, and
an employee’s failure to file a Board VEOA appeal within 15 days after receiving
the Secretary of Labor’s written notification of the results of the Secretary’s
investigation of the appellant’s VEOA complaint does not summarily foreclose
the Board from exercising jurisdiction to review the appeal. 479 F.3d. 830,
835-44 (Fed. Cir. 2007); Gingery, 110 M.S.P.R. 83, ¶ 24. The United States
Supreme Court explained in Irwin v. Department of Veterans Affairs, 498 U.S. 89,
96 (1990), that federal courts have “typically extended equitable relief only
sparingly,” and that the Court had allowed equitable tolling in situations where
the claimant “has actively pursued his judicial remedies by filing a defective
pleading during the statutory period,” or where the claimant has been “induced or
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tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
See Gingery, 110 M.S.P.R. 83, ¶ 24.
¶9 The appellant did not file a defective pleading within the statutory period.
Moreover, even accepting as true the appellant’s account that the agency told him
that it would place him in a Career City Carrier position when the Transitional
City Carrier position was phased out, this does not establish that he was induced
or tricked into allowing the filing deadline to pass. That is, there is no dispute
that the appellant’s DOL complaint concerned his application for the Transitional
City Carrier position, that DOL’s May 10, 2013 letter notified him of the express
terms upon which it had resolved his VEOA complaint, and that those terms did
not include any obligation on the agency’s part to place him in a Career City
Carrier position. IAF, Tab 1 at 8-9. Although DOL’s letter expressly advised the
appellant that, if he was not fully satisfied with its resolution of his complaint, he
had the right to appeal its decision to the Board within 15 calendar days of receipt
of DOL’s letter, he did not do so. Under these circumstances, we agree with the
administrative judge that the appellant has failed to establish that the agency’s
noncompliance with alleged promises that were not set forth in DOL’s closure
letter induced or tricked him into allowing the deadline for filing a Board appeal
to pass. ID at 4-5.
¶10 Further, we agree with the administrative judge that the appellant’s
contention that DOL remained involved in his complaint until July 2013 does not
describe any circumstances leading to a conclusion the filing deadline should be
equitably tolled. ID at 4. Indeed, because the appellant’s correspondence with
the DOL representative occurred in July 2013, after the filing deadline had
already passed, he could not have been induced or tricked into missing the
deadline by any misinformation he received as a result of that correspondence.
See IAF, Tab 1 at 10; see Hayes v. Department of the Army, 111 M.S.P.R. 41,
¶ 11 (2009). Rather, the record indicates that the appellant’s failure to file a
timely DOL complaint was a result of his own lack of due diligence in preserving
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his legal rights, which is not grounds for equitable tolling. Hayes, 111 M.S.P.R.
41, ¶ 11.
¶11 Insofar as the appellant contends that the agency’s failure to place him in a
Career City Carrier position itself constitutes an independent ground for granting
corrective action under VEOA, the record contains no evidence that he raised
such a claim before DOL. Unless an agency action is appealable to the Board
under some other law, rule, or regulation, VEOA does not permit the Board to
consider alleged violations of veterans’ preference rights that have not first been
raised before DOL. White v. U.S. Postal Service, 114 M.S.P.R. 574, ¶ 9 (2010).
The only record evidence concerning the exhaustion requirement is the May 10,
2013 letter from DOL to the appellant, and it is unclear, based on this letter alone,
whether the appellant raised with DOL any of the alleged agency actions
concerning a Career City Carrier position. Although the Board uses a liberal
pleading standard for allegations of veterans’ preference violations in a VEOA
appeal, evidence of the exhaustion requirement is mandatory under the statute and
is not subject to the same liberal construction. Burroughs v. Department of the
Army, 115 M.S.P.R. 656, ¶ 10, aff’d, 445 F. App’x 293 (Fed. Cir. 2011);
see 5 U.S.C. § 3330a(d). The appellant’s failure to exhaust his administrative
remedy regarding such a claim deprives the Board of jurisdiction to consider it
here. 5 U.S.C. § 3330a(d)(1); see Gingery, 110 M.S.P.R. 83, ¶ 14.
¶12 Finally, the appellant also contends on review that his appeal should be
remanded to DOL for further investigation of his claims that the settlement
agreement and release signed by an agency representative was invalid or
incomplete, that the terms of the settlement agreement authorize him to request
DOL to reopen the case for further investigation, and that agency has not
complied with its alleged agreement to place him in a Career City Carrier
position. PFR File, Tab 3 at 2-3, Tab 5. The appellant also submits several
documents for the first time on review, including a copy of the settlement
agreement and release and correspondence from the agency concerning the
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phasing out of the Transitional City Carrier position and his eligibility to apply
for a Career City Carrier position. PFR File, Tab 1 at 2-4, Tab 2 at 8-15, Tab 5
at 7-9. We have not considered these documents, as they significantly predate the
close of the record below and the appellant has not shown that they were
unavailable before the record closed despite his due diligence. See 5 C.F.R. §
1201.115; Avasino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board
will not consider evidence submitted for the first time with the PFR absent a
showing that it was unavailable before the record was closed despite the party’s
due diligence). Further, the Board will not normally 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). The appellant
has failed to make such a showing here.
¶13 In any event, although DOL’s resolution of a veterans’ preference
complaint does not divest the Board of jurisdiction over an appellant’s VEOA
appeal, see Gingery, 110 M.S.P.R. 83, ¶ 20, the appellant has cited no authority
for the proposition that the Board has the authority to enforce the alleged terms
upon which a VEOA complaint has been resolved or to reopen such a complaint
and remand it to DOL for further investigation. Rather, the question of an
appellant’s entitlement to such relief is properly addressed through enforcement
proceedings once the Board has ordered corrective action under VEOA. Cf.
Williams v. Department of the Air Force, 108 M.S.P.R. 567, ¶ 11 (2008) (finding
that if, after the agency reconstructs the hiring process as ordered by the Board,
the appellant is placed at a grade level with which he disagrees, he may raise the
matter in a petition for enforcement). Because the administrative judge properly
denied corrective action in this case, the appellant’s allegations of noncompliance
fall outside the scope of the Board’s remedial authority under VEOA.
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¶14 Accordingly, because the appellant here filed an untimely Board appeal and
equitable tolling does not apply, we AFFIRM the initial decision, DENYING the
appellant’s request for corrective action under VEOA.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.