# Nathaniel Watty v. Department of Veterans Affairs > Merit Systems Protection Board · February 13, 2023 URL: https://www.frixlaw.com/law-library/cases/9372846 ## Case - **Court:** Merit Systems Protection Board - **Decided:** February 13, 2023 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9372846 ## Opinion text UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATHANIEL WATTY, DOCKET NUMBER Appellant, NY-3330-22-0042-I-1 v. DEPARTMENT OF VETERANS DATE: February 13, 2023 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Nathaniel Watty, Jamaica, New York, pro se. Jack P. Di Teodoro, Esquire, Brooklyn, New York, for the agency. BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction. On petition for review, the appellant argues the merits of the agency’s alleged VEOA violations and generally disagrees with the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 administrative judge’s findings that he failed to file his Department of Labor (DOL) complaint within the 60-day statutory deadline. Petition for Review (PFR) File, Tab 1 at 4-11. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law t o the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to REVERSE the administrative judge’s finding that the Board lacks jurisdiction over this VEOA appeal and deny the appellant’s request for corrective action under VEOA for a failure to meet the 60-day time limit for filing a DOL complaint under 5 U.S.C. § 3330a(a)(2)(A), we AFFIRM the initial decision. ¶2 The 60-day filing deadline set forth at 5 U.S.C. § 3330a(a)(2)(A) is subject to equitable tolling, and an employee’s failure to file a complaint within that 60-day period does not summarily foreclose the Board from exercising jurisdiction to review the appeal. See Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶ 17 (2012). Federal courts have typically extended equitable relief sparingly, such as when the complainant had actively pursued his judicial remedies by filing a defective pleading during the statutory period or when the complainant had been “induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Id. (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). 3 ¶3 Here, the record is devoid of argument or evidence that the appellant filed a defective pleading within the statutory period or that he was “tricked” or “induced” by an agency representative into filing late. PFR File, Tab 1 at 4, 8 -9; Initial Appeal File, Tab 1. Instead, the appellant claims that he was not aware that his veterans’ preference rights had been violated until October 2021. PFR File, Tab 1 at 8. Similar arguments for equitable tolling have been rejected by the Board. See Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶ 12 (2009) (finding that a lack of information showing a violation of veterans’ preference rights does not fall within the limited scope of cases to which equitable tolling applies); Mitchell v. Department of Commerce, 106 M.S.P.R. 648, ¶ 10 (2007) (finding in a nonselection appeal that the appellant’s argument that he was not “aware of the injustice” of the agency’s selection procedure until after the 60 -day deadline had passed did not warrant equitable tolling), aff’d, 276 F. App’x 1007 (Fed. Cir. 2008), overruled on other grounds by Garcia v. Department of Agriculture , 110 M.S.P.R. 371 (2009). Thus, because there is no indication that the appellant pursued his remedy within the statutory period or that his failure to file a timely VEOA complaint with DOL was the result of the agency’s misconduct, equitable tolling is inappropriate. ¶4 When, as here, an appellant files an untimely DOL complaint and equitable tolling does not apply, the request for corrective action must be denied for failure to meet the 60-day time limit. Gingery, 119 M.S.P.R. 43, ¶ 16 n.3. Therefore, the appellant’s request for corrective action under VEOA is denied because he failed to meet the time limit for filing a complaint with the Secretary of Labor under 5 U.S.C. § 3330a(a)(2)(A). 4 NOTICE OF APPEAL RIGHTS 2 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board doe s 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). 2 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. 5 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. ____ , 137 S. Ct. 1975 (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 6 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 fil e 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 7 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. 3 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 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 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. FOR THE BOARD: /s/ for Jennifer Everling Acting Clerk of the Board Washington, D.C. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9372846. Public record. Not legal advice.