Willie Davis v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 45

Docket No. DC-0714-20-0417-I-1

Willie Davis,

Appellant,

v.

Department of Veterans Affairs,

Agency.

December 14, 2022

Edward H. Passman, Esquire and Nicole Davis, Esquire, Washington, D.C.,

for the appellant.

Barbara Burke, Brooklyn, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

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

dismissed as untimely filed the appeal of his removal, taken under the authority

of the Department of Veterans Affairs Accountability and Whistleblower

Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a),

131 Stat. 862, 869-73 (codified as amended at 38 U.S.C. § 714). For the reasons

set forth below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND the appeal to the regional office for further

adjudication.

2

BACKGROUND

¶2 The appellant was employed by the agency as a Cemetery Caretaker

Supervisor at Culpeper National Cemetery. Initial Appeal File (IAF), Tab 1 at 6,

9. Effective January 31, 2020, the agency removed the appellant under the VA

Accountability Act, based on the charges of failure to follow instructions and

inappropriate conduct. 1 Id. at 9-10.

¶3 On March 2, 2020, the appellant filed an appeal of his removal with the

Board alleging, among other things, that it was the result of race discrimination,

retaliation for prior equal employment opportunity (EEO) activity, and reprisal

for whistleblowing. 2 IAF, Tab 1 at 7. The administrative judge issued an order

explaining that the appeal appeared to be untimely filed under the

10-business-day deadline contained in 38 U.S.C. § 714(c)(4)(B), and directing the

appellant to file evidence and/or argument establishing either that the appeal was

timely filed or that the filing deadline should be waived. IAF, Tab 6 at 1-4. In

response, the appellant argued that he filed his appeal under the mixed-case

procedures governed by 5 U.S.C. § 7702, and thus he was entitled to the 30-day

filing deadline contained in the Board’s regulations regarding mixed cases

at 5 C.F.R. § 1201.154. IAF, Tab 7 at 5-6.

¶4 The administrative judge issued an initial decision, dismissing the appeal as

untimely filed without a showing of good cause for the delay. 3 IAF, Tab 9, Initial

1

The copy of the notice of removal in the record appears to be missing at least one

page. IAF, Tab 1 at 9-10. However, the incomplete copy does not impact our analysis

as to whether this appeal was timely filed.

2

The appellant alleged in his appeal that the “demotion” constituted discrimination and

retaliation. IAF, Tab 1 at 7. As no demotion appears to have occurred in this case, we

assume this is an error.

3

The “good cause” standard is inapplicable in this matter because the filing deadline

under the VA Accountability Act is statutory, there is no mechanism within 38 U.S.C.

§ 714 for waiving the time limit for good cause shown, and the statute does not require

the agency to notify employees of their election rights or filing deadlines . 38 U.S.C.

§ 714(c)(4)(B); Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶¶ 9-10.

3

Decision (ID). The administrative judge determined that, because the appellant

was removed under the VA Accountability Act, 38 U.S.C. § 714 governed, and

thus the appellant was required to file his appeal within 10 business days of the

effective date of the removal. ID at 4. That date would have been February 14,

2020. 4 Given that the appellant filed his appeal on March 2, 2020, the

administrative judge concluded that the appeal was untimely filed and that the

appellant had failed to establish good cause for his delay. ID at 4-5.

Accordingly, she dismissed the appeal. ID at 5.

¶5 The appellant has filed a petition for review, essentially repeating his

contention that his appeal was timely filed because it involved claims of

discrimination and retaliation in violation of EEO statutes, and therefore was a

mixed case governed by 5 U.S.C. § 7702. Petition for Review (PFR) File, Tab 1

at 6-8. The appellant argues that 38 U.S.C. § 714 is “utterly silent” on the issue

of mixed cases, and thus does not alter the procedures for mixed-case appeals

prescribed by 5 U.S.C. § 7702, including the 30-day filing deadline contained

within 5 C.F.R. § 1201.154, which implements the mixed-case procedures set

forth in section 7702. PFR File, Tab 1 at 7-8. The appellant asserts that his

mixed-case appeal was timely filed because it was filed within 30 days of the

Instead, the administrative judge in the initial decision should have applied the

equitable estoppel or equitable tolling doctrines. Ledbetter, 2022 MSPB 41, ¶ 11.

However, because we find that this appeal was timely filed, the administrative judge’s

error is inconsequential. Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282

(1984) (recognizing that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

4

In the initial decision, the administrative judge stated that the appellant’s deadline to

file the appeal under section 714 was February 10, 2020. ID at 4. If section 714 was

applicable to the calculation of the deadline for filing the appeal, February 10, 2020,

would have been an incorrect date. The administrative judge appears to have calculated

the deadline under section 714 using 10 calendar days, instead of 10 business days, as

set forth in 38 U.S.C. § 714(c)(4)(B). However, because we find that the filing deadline

set by section 714 is not applicable to this appeal, her error did not prejudice the

appellant’s substantive rights. Panter, 22 M.S.P.R. 281 at 282.

4

effective date of his removal. Id. at 8. The agency has responded in opposition

to the appellant’s petition for review. PFR File, Tab 3.

ANALYSIS

¶6 In Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 4-5, 25, the

Board held that when an individual covered by 38 U.S.C. § 714 5 files a

mixed-case appeal after filing a formal discrimination complaint with the agency,

the appeal is governed by the procedures set forth in 5 U.S.C. § 7702 and the

Board’s implementing regulations, regardless of whether the adverse action was

taken pursuant to 38 U.S.C. § 714. In this appeal, the appellant did not file a

formal discrimination complaint with the agency, but rather raised allegations that

the agency violated EEO statutes for the first time in his Board appeal. As

discussed below, we expand upon the holding in Wilson and find that the

principle articulated in that decision applies regardless of whether the individual

filed a formal complaint of discrimination with the agency or raised allegations

that the agency violated EEO statutes for the first time in his Board appeal.

The appellant’s mixed-case appeal is subject to the procedures set forth in

5 U.S.C. § 7702.

¶7 The agency removed the appellant under the authority of the VA

Accountability Act, which authorizes the agency to remove, demote, or suspend

“covered individual[s].” IAF, Tab 1 at 9; 38 U.S.C. § 714(a)(1). Pursuant to that

Act, an employee may appeal to the Board a removal, demotion, or suspension of

greater than 14 days, but such appeal “may only be made . . . not later than

10 business days after the date of” the action. 38 U.S.C. § 714(c)(4). Thus,

5

A “covered individual” includes all individuals occupying positions at the agency,

except for individuals who are in the Senior Executive Service, appointed under the

authority of 38 U.S.C. §§ 7306, 7401(1), 7401(4), or 7405, still serving in a

probationary or trial period, or political appointees. 38 U.S.C. § 714(h)(1). Nothing in

the record suggests that the appellant occupies a position that falls under one of these

exceptions.

5

pursuant to the plain language of the statute, because the agency effected the

appellant’s removal on January 31, 2020, an appeal under section 714(c)(4) was

due on February 14, 2020. IAF, Tab 1 at 9. The appellant’s March 2, 2 020

appeal was thus untimely filed if section 714(c)(4) applied. IAF, Tab 1.

¶8 A mixed case arises when an appellant has been subject to an action that is

appealable to the Board, and he alleges that the action was effected, in whole or

in part, because of discrimination. Miranne v. Department of the Navy,

121 M.S.P.R. 235, ¶ 8 (2014); see also Wilson, 2022 MSPB 7, ¶¶ 13-14

(explaining the processing of mixed-case appeals under the Civil Service Reform

Act of 1978 (CSRA), codified at 5 U.S.C. § 7702). Pursuant to 5 U.S.C.

§ 7702(a)(1) and (2), an appellant has two options when filing a mixed-case

appeal: (1) he may initially file a mixed-case EEO complaint with his employing

agency followed by an appeal to the Board 6; or (2) he may file a mixed-case

appeal with the Board and raise his discrimination claims in connection with that

appeal. 7 Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 8. The

regulation addressing the filing of mixed cases with the Board is 5 C.F.R.

6

The CSRA provides at 5 U.S.C. § 7702(a)(2) that an employee may file an EEO

complaint in a mixed case, which an agency “shall resolve . . . within 120 days.” If the

agency fails to issue a final decision within 120 days, the employee’s right to file a

Board appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C.

§ 7702(a)(2), (e)(2); Wilson, 2022 MSPB 7, ¶ 13; Miranne, 121 M.S.P.R. 235, ¶ 9. The

Board’s regulations implementing the statute also reflect this rule, 5 C.F.R.

§§ 1201.151(a)(1), .154(b)(2), as do the regulations of the Equal Employment

Opportunity Commission, 29 C.F.R. § 1614.302(d)(1)(i).

7

The CSRA provides at 5 U.S.C. § 7702(a)(1) that when an employee “has been

affected by an action which the employee . . . may appeal to the [Board], and alleges

that a basis for the action was discrimination,” as described within various

anti-discrimination statutes, “the Board shall, within 120 days of the filing of the

appeal, decide both the issue of discrimination and the applicabl e action in accordance

with the Board’s appellate procedures under [5 U.S.C. § 7701] and this section.” The

U.S. Supreme Court has interpreted 5 U.S.C. § 7702(a)(1) as “[d]efining the [Board’s]

jurisdiction in mixed-case appeals that bypass an agency’s EEO office.” Perry v. Merit

Systems Protection Board, 137 S. Ct. 1975, 1981 (2017).

6

§ 1201.154, which provides that an appellant may file a Board appeal of an

adverse action alleging discrimination or retaliation in violation of EEO statutes

within 30 days of the effective date of the action, or 30 days from the appellant’s

receipt of the agency’s decision on an EEO complaint, whichever is later.

¶9 As correctly observed by the appellant, 38 U.S.C. § 714 is silent as to the

procedures that apply when an appeal of a removal action taken under the statute

includes an allegation of discrimination or reprisal for the exercise of EEO rights .

PFR File, Tab 1 at 7. Thus, the material issue here is whether the procedures and

timelines set forth in 38 U.S.C. § 714, or 5 U.S.C. § 7702 and 5 C.F.R.

§ 1201.154 apply when an appellant files an appeal directly with the Board of an

adverse action taken under 38 U.S.C. § 714 and alleges violations of EEO laws.

¶10 The Board has previously addressed the relationship between 5 U.S.C.

§ 7702 and 38 U.S.C. § 714. In Wilson, the Board reviewed whether an appellant

had timely filed an appeal of his demotion taken under the VA Accountability Act

when he first filed a formal EEO complaint with his agency, and then

subsequently appealed his demotion to the Board after the agency failed to issue a

final decision within 120 days. Wilson, 2022 MSPB 7, ¶¶ 10-25. Specifically, in

that case, the Board had to determine whether the 10-business-day deadline

contained within 38 U.S.C. § 714(c)(4)(B) applied, or whether 5 U.S.C.

§ 7702(e)(2) applied, which allows appellants to file a Board appeal after filing a

formal EEO complaint if the agency does not issue a final agency decision within

120 days.

¶11 After noting that 38 U.S.C. § 714 was silent on the issue of procedures and

filing times for appeals alleging discrimination or retaliation in violation of EEO

statutes, the Board looked to the CSRA, which expressly included procedures for

processing mixed cases in 5 U.S.C. § 7702. Wilson, 2022 MSPB 7, ¶¶ 12-13. We

observed that Congress specifically delegated to the Board the authority to decide

both the issue of discrimination and the appealable action in accordance with the

Board’s procedures under 5 U.S.C. § 7701. Id., ¶ 14; see 5 U.S.C. § 7702(a)(1).

7

The Board in Wilson took special note of a Senate Report at the time the Board

was created, which explained that “[a]ny provision denying the Board jurisdiction

to decide certain adverse action appeals because discr imination is raised as an

issue would make it impossible for the Government to have a single unified

personnel policy which took into account the requirements of all the various laws

and goals governing Federal personnel management.” Wilson, 2022 MSPB 7,

¶ 14 (quoting S. Rep. No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N

2723, 2775). Thus, the Board found that the plain language of 5 U.S.C. § 7702,

coupled with the Senate’s language stressing the importance of the Board’s

authority to review discrimination claims in adverse action appeals, confirmed

that an employee who first elects to file an EEO complaint retains his right to

later Board review of the agency’s adverse action and any associated

discrimination claims. Wilson, 2022 MSPB 7, ¶ 14.

¶12 As noted by the Board, Wilson was not the first time that a tribunal

confronted how a newly enacted statute affects related laws that it does not

reference. Id., ¶ 15. In Wilson, the Board relied on the U.S. Supreme Court’s

decision in Morton v. Mancari, 417 U.S. 535, 537-39, 545 (1974), in which the

Court declined to find that a new statute repealed a preexisting statute by

implication despite alleged inconsistencies between the statutes. Id., ¶¶ 15-16.

The Court stated in Morton that repeals by implication are disfavored and that

congressional intent to repeal a statute “must be clear and manifest.” Morton,

417 U.S. at 549-51 (quoting United States v. Borden Company, 308 U.S. 188, 198

(1939)); see Wilson, 2022 MSPB 7, ¶ 15. Further, “[w]hen there are two acts

upon the same subject, the rule is to give effect to both if possible.” Morton,

417 U.S. at 551 (quoting Borden Company, 308 U.S. at 198). The Court

continued that “when two statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to

regard each as effective.” Morton, 417 U.S. at 551; see Wilson, 2022 MSPB 7,

¶ 15.

8

¶13 The Board in Wilson observed that the Court has recognized factors that

might lead to repeal by implication, although it found them inapplicable in

Morton. Wilson, 2022 MSPB 7, ¶ 16; see Morton, 417 U.S. at 550-51.

These included when the statutes at issue are “irreconcilable,” or when the older

statute is broader in scope than the newer, more specific statute. Morton,

417 U.S. at 550-51; see Todd v. Merit Systems Protection Board, 55 F.3d 1574,

1577-78 (Fed. Cir. 1995) (stating that repeal by implication is appropriate only

when statutes are irreconcilable or “the enactment so comprehensively covers the

subject matter of the earlier statute that it must have been intended as a

substitute”; a statute addressing a “narrow, precise, and specific subject is not

submerged by a later enacted statute covering a more generalized spectrum”) ;

Bergman v. Department of Transportation, 101 M.S.P.R. 607, ¶ 6 (2006) (holding

that specific statutory language aimed at a particular situation ordinarily controls

over general statutory language).

¶14 Guided by the relevant precedent, the Board in Wilson determined that

38 U.S.C. § 714 does not repeal, either explicitly or implicitly, 5 U.S.C. § 7702.

Wilson, 2022 MSPB 7, ¶¶ 16-19. First, the Board explained that 38 U.S.C. § 714

does not expressly repeal 5 U.S.C. § 7702, as it is silent regarding the procedures

and time limits applicable to mixed-case appeals. Id., ¶ 17. Next, the Board

determined that the factors that would render a repeal by implication appropriate

were not present, as 5 U.S.C. § 7702 was the more specific statute regarding the

processing of mixed cases. Id., ¶¶ 16-17. Further, the Board found 5 U.S.C.

§ 7702 and 38 U.S.C. § 714 were capable of co-existing, explaining as follows: if

an appealable action is taken pursuant to 38 U.S.C. § 714, and the covered

individual has not filed a formal complaint of discrimination with the agency,

then the 10-business-day deadline set forth at 38 U.S.C. § 714(c)(4)(B) would

apply. Id., ¶ 19. If however, such an individual has first filed a formal

discrimination complaint with the agency from such an adverse action, then the

time limit set forth at 5 U.S.C. § 7702(e)(2) would apply to any subsequent Board

9

appeal, which allows an appellant to file an appeal with the Board at any time

after the 120th day following the filing of the formal complaint if an agency

decision on that complaint has not been received. Id., ¶ 19. Accordingly, the

Board applied 5 U.S.C. § 7702(e)(2), and found that the appellant was timely in

filing his mixed-case appeal with the Board. Id., ¶ 25.

¶15 However, the Board in Wilson specifically declined to address whether

5 U.S.C. § 7702 would apply if a “covered individual” directly filed a Board

appeal alleging that an action taken pursuant to 38 U.S.C. § 714 was based on

discrimination. Wilson, 2022 MSPB 7, ¶ 19 n.5. These are the circumstances

present here.

¶16 The relevant statutory subsections in Wilson were 5 U.S.C. § 7702(a)(2) and

(e)(2), which provide for a Board appeal following the filing of a mixed -case

complaint with an employing agency. In this matter, the relevant statutory

subsection is 5 U.S.C. § 7702(a)(1), which the U.S. Supreme Court has

interpreted as “[d]efining the [Board’s] jurisdiction in mixed-case appeals that

bypass an agency’s EEO office.” Perry v. Merit Systems Protection Board,

137 S. Ct. 1975, 1981 (2017); see Austin v. Merit Systems Protection Board,

136 F.3d 782, 783 (Fed. Cir. 1998) (citing 5 U.S.C. § 7702(a)(1) for the

proposition that “[a]n employee may initiate a mixed case directly with the Board

and seek a decision on both the appealable action and the discrimination claim”).

In interpreting statutes, “each section of a statute should be construed in

connection with every other section so as to produce a harmonious whole.” King

v. Department of Health & Human Services, 71 M.S.P.R. 22, 29 (1996) (citing 1A

Norman J. Singer, Sutherland Statutory Construction § 46.05 (5th ed. 1993)).

Additionally, it is well settled that the provisions of a unified statutory scheme

should be read in harmony, leaving no provision inoperative or superfluous.

Holley v. United States, 124 F.3d 1462, 1468 (Fed. Cir. 1997); Styslinger v.

Department of the Army, 105 M.S.P.R. 223, ¶ 17 (2007), overruled on other

grounds by Oram v. Department of the Navy, 2022 MSPB 30. As part of the

10

CSRA’s unified statutory scheme and 5 U.S.C. § 7702 as a whole, 5 U.S.C.

§ 7702(a)(1) must be read in harmony, and treated consistently, with the

remainder of that statute.

¶17 Thus, for the same reasons as those set forth in Wilson—the silence of the

VA Accountability Act regarding its relationship to the mixed -case procedures set

forth in the CSRA, the absence of any clear and manifest intent by Congress in

38 U.S.C. § 714 to repeal the mixed-case provisions of the CSRA, the strong

preference against repeal of a statute by implication and in favor of reading

statutes together, and the fact that the statutes can co-exist—we find that 5 U.S.C.

§ 7702(a)(1) continues to govern mixed-case appeals filed directly with the

Board. In other words, an appellant who files an appeal of an adverse action

taken pursuant to 38 U.S.C. § 714 and alleges violations of EEO statutes in the

first instance before the Board has filed a mixed case, which is governed by the

procedures and the timelines established by 5 U.S.C. § 7702 and its implementing

regulations, and not 38 U.S.C. § 714. To find otherwise would be to treat the

continuing applicability of the various subsections of 5 U.S.C. § 7702 differently

and to render section 7702(a)(1) inoperative when an action is taken under

38 U.S.C. § 714. This would be contrary to well-established principles of

statutory construction. See Holley, 124 F.3d at 1468; Styslinger, 105 M.S.P.R.

223, ¶ 17.

¶18 In so finding, we recognize that 38 U.S.C. § 714 does not make it

impossible for an appellant to raise issues of discrimination in a direct Board

appeal and follow the timelines set forth in that statute. Nevertheless, as

discussed above and in Wilson, nothing in section 714 supports a finding that it

repeals, either expressly or by implication, any of the mixed-case procedures set

forth in 5 U.S.C. § 7702. Thus, 5 U.S.C. § 7702(a)(1) remains applicable to

mixed-case appeals of actions taken under 38 U.S.C. § 714 when discrimination is

raised for the first time before the Board.

11

The appellant’s mixed-case appeal was timely filed and, accordingly, this matter

must be remanded to the administrative judge for further adjudication.

¶19 In this case, the appellant filed an appeal directly with the Board alleging ,

among other things, that his removal was the result of race discrimination and

retaliation for prior EEO activity. IAF, Tab 1 at 7. Because the appellant filed a

mixed-case appeal, the procedures contained within 5 U.S.C. § 7702 and the

Board’s implementing regulations apply. Those regulations provide that

mixed-case appeals must be filed within 30 days of the effective date of the

agency’s action or 30 days after the date of the appellant’s receipt of the agency’s

decision, whichever is later. 5 C.F.R. § 1201.154(a). The agency removed the

appellant effective January 31, 2020, and the time period for filing began at that

time. IAF, Tab 1 at 9-10. The appellant filed his mixed-case appeal on March 2,

2020, IAF, Tab 1, and thus it was timely filed. 8 Accordingly, we remand the

appeal for further adjudication. 9

ORDER

¶20 For the reasons discussed above, we REMAND this matter to the regional

office for further adjudication in accordance with this Remand Order . On

8

The 30th calendar day following January 31, 2020, was March 1, 2020. That day was

a Sunday, and thus the filing deadline was the following business day, Monday,

March 2, 2020. 5 C.F.R. § 1201.23.

9

On review, the appellant also argues that the administrative judge should have granted

his request to dismiss his appeal without prejudice so that he could pursue an EEO

complaint. PFR File, Tab 1 at 5-6; IAF, Tab 7 at 6-7. Because we find the appeal was

timely filed, the appellant has elected that remedy and cannot now file a n EEO

complaint. Dowell v. U.S. Postal Service, 113 M.S.P.R. 250, ¶ 6 (2010) (an appellant

who is subject to an action that is appealable to the Board and who alleges the action

was effected in whole or in part because of discrimination may either filed a direct

Board appeal or an EEO complaint with the agency, but not both, and whichever is filed

first is deemed to be an election to proceed in that forum); 5 C.F.R. § 1201.154(a) (an

appellant alleging discrimination who has been subject to an action that is appealable to

the Board may either file a timely complaint of discrimination with the agency or file

an appeal with the Board).

12

remand, the administrative judge should adjudicate this appeal as timely filed,

determine if the agency established its charges by substantial evidence, and

address the appellant’s affirmative defenses of discrimination and EEO and

whistleblower retaliation in accordance with applicable precedent. 10

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

10

On remand, the administrative judge shall provide the appellant with comprehensive

notice of his burdens of proof regarding his affirmative defenses.