# Sean Nikkila v. Department of Energy

> Merit Systems Protection Board · November 21, 2022

URL: https://www.frixlaw.com/law-library/cases/9373205

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 21, 2022
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SEAN C. NIKKILA, DOCKET NUMBER
Appellant, SF-3330-17-0016-I-1

v.

DEPARTMENT OF ENERGY, DATE: November 21, 2022
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sean C. Nikkila, Sherwood, Oregon, pro se.

Sally Carter, Portland, Oregon, 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
denied his request for corrective action under the Veterans Employment
Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 co urse 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD the appellant’s claim under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (USERRA) (codified as amended at 38 U.S.C.
§§ 4301-4335), which he raised for the first time on review, to the Western
Regional Office for adjudication.

BACKGROUND
¶2 In August 2012, the appellant, a preference eligible, applied for a GS-13
Program Analyst (Budget) position within the agency’s Bonneville Power
Administration (BPA). Initial Appeal File (IAF), Tab 12 at 25-26, Tab 13 at 9,
22. BPA informed the appellant that he was not selected for the position in
September 2012. IAF, Tab 1 at 5, Tab 12 at 9-12.
¶3 On July 22, 2014, as a result of an investigation into BPA’s hiring practices
and a resulting remediation plan, BPA sent the appellant a letter informing him
that his 2012 application for the Program Analyst (Budget) position had not
received appropriate consideration and offering him up to 1 year of priority
consideration for an equivalent position. IAF, Tab 5 at 19-20, Tab 6 at 2-25,
Tab 9 at 21, Tab 11 at 24-25, Tab 12 at 8. The appellant accepted the offer on
3

July 27, 2014, and BPA later extended the priority consideration period by
3 months, until October 2015. IAF, Tab 5 at 20, Tab 9 at 21-22.
¶4 On September 10, 2014, the appellant emailed BPA to inquire about the
status of his priority consideration request, and BPA replied that it had
documented his request and was in the process of finalizing the list for selecting
officials. IAF, Tab 1 at 5, Tab 5 at 6, 24. Thereafter, on October 7, 2014, the
appellant’s then-attorney sent a letter to BPA on his behalf seeking “damages as a
result of BPA’s unlawful hiring practices,” and referencing, among others, the
Program Analyst (Budget) position at issue. IAF, Tab 10 at 11. During the
period that the appellant’s priority consideration was active, th e agency did not
refer him to a selecting official because it determined that a relevant position for
which he met the specialized experience requirement did not open. IAF, Tab 5
at 23-24, Tab 9 at 20.
¶5 On November 4, 2015, the appellant submitted a request to BPA under the
Privacy Act to determine the status of his priority consideration request because
he claimed that he had not heard from BPA since its initial September 2014 email
reply. IAF, Tab 5 at 6. BPA construed the request under both the Freedom of
Information Act (FOIA) and the Privacy Act, and issued a partial response on
April 26, 2016, and an additional response on August 1, 2016. Id. at 15. On
August 16, 2016, the appellant submitted a complaint to the Department of Labor
(DOL), Veterans’ Employment and Training Service (VETS), concerning his
nonselection to the Program Analyst (Budget) position and alleging a violation of
his veterans’ preference rights. IAF, Tab 1 at 5, Tab 5 at 5, 23-24.
¶6 On September 30, 2016, DOL VETS sent the appellant a letter informing
him that it was closing his VEOA complaint because it was untimely filed and
because he submitted insufficient reasons to waive the statutory filing deadline.
IAF, Tab 1 at 7-8. The letter also provided the appellant with appeal rights to the
Board. Id. at 8.
4

¶7 The appellant subsequently filed this VEOA appeal alleging that the agency
violated his veterans’ preference rights when it did not select him for the Program
Analyst (Budget) position. IAF, Tab 1. The administrative judge issued an order
advising the appellant of the applicable standards and burdens of proof, including
how to establish that his DOL complaint was timely filed or that the doctrine of
equitable tolling applied. IAF, Tab 3. The appellant replied, contending that the
doctrine of equitable tolling should apply because he had no reason to know that
his rights concerning the 2012 nonselection had been violated until August 2,
2016, when he received documentation pursuant to his request under FOIA and
the Privacy Act indicating that he was denied veterans’ preference during the
selection process. IAF, Tab 5 at 5-6, Tab 6. He claimed that, prior to his receipt
of the documentation, he was not aware of the denial of his rights in the selection
process and that he did not know why he had received the 2014 priority
consideration letter. IAF, Tab 5 at 5-7. He also claimed that BPA “tricked” him
into thinking that it was working to provide him a fair remedy by issuing him the
priority consideration letter and that it unnecessarily delayed responding to his
requests for information. Id. at 7-8.
¶8 Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision denying his request for corrective action. IAF, Tab 15,
Initial Decision (ID) at 1-2. The administrative judge determined that the
appellant had filed his complaint with DOL more than 60 days after the date of
the alleged violation of his veterans’ preference rights and that he failed to show
that the doctrine of equitable tolling should be invoked to toll the deadline .
ID at 11-22. Specifically, he found that the appellant failed to show that he had
actively pursued his remedies by filing a defective pleading during the statutory
period or that he had been induced or tricked by agency misconduct into allowing
the filing deadline to pass. ID at 16-21.
¶9 The appellant has filed a petition for review in which he primarily argues
that DOL VETS improperly construed his administrative complaint under VEO A
5

rather than under USERRA. Petition for Review (PFR) File, Tab 1. He claims,
therefore, that the Board should consider this appeal under USERRA. Id. at 4-6,
8. The agency has filed a response in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW
¶10 We have reviewed the appellant’s administrative complaint to DOL VETS
and the documentation provided to the administrative judge below and find no
error in the classification of this appeal under VEOA. IAF, Tabs 1, 5 -6.
Nevertheless, USERRA claims are broadly and liberally construed, are not
subject to a statute of limitations, and may be raised in the first instance in a
petition for review. See Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 10
n.6 (2009); 5 C.F.R. § 1208.12. Because the appellant raises a USERRA claim
for the first time on review, he has not yet received notice of the applicable
standards and burdens of proof. Moreover, he requested a hearing, to which he is
entitled if he establishes jurisdiction over his USERRA appeal. IAF, Tab 1 at 2;
see Kirkendall v. Department of the Army, 479 F.3d 830, 844-46 (Fed. Cir. 2007)
(en banc). Under these circumstances, we forward his claim under USERRA to
the Western Regional Office for adjudication. 2
¶11 In the alternative, the appellant argues that the administrative judge erred in
finding that he failed to establish that the doctrine of equitable tolling should
apply to his appeal. PFR File, Tab 1 at 7-8. As the administrative judge properly
explained, equitable tolling is extended only sparingly, under circumstances such
as when an appellant actively had pursued his remedies by filing a defective
pleading during the statutory period or when an appellant had been induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.
ID at 10-11 (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96

2
An appellant may either file a USERRA complaint with the Secretary of Labor or file
an appeal directly with the Board. 5 C.F.R. § 1208.11(a); see Graham v. Commodity
Futures Trading Commission, 105 M.S.P.R. 392, ¶ 5 (2007), aff’d, 348 F. App’x 564
(Fed. Cir. 2009).
6

(1990)); see Brown v. U.S. Postal Service, 110 M.S.P.R. 381, ¶ 10 (2009). Here,
we agree with the administrative judge’s well-reasoned findings that the appellant
has not shown that either criterion is met and that equitable tolling therefore does
not apply. ID at 15-22; see Brown, 110 M.S.P.R. 381, ¶ 12 (finding that the fact
that the appellant was unaware that his veterans’ preference rights had been
violated until after the 60-day deadline had passed was not within the limited
scope of reasons warranting equitable tolling); Mitchell v. Department of
Commerce, 106 M.S.P.R. 648, ¶ 10 (2007) (explaining that the appellant’s
argument that he was not “aware of the injustice” in the agency’s selection
procedure until after the 60-day filing deadline did not warrant equitable tolling),
overruled on other grounds by Garcia v. Department of Agriculture,
110 M.S.P.R. 371, ¶¶ 8-13 (2009).
¶12 The appellant also appears to argue on review that the administrative judge
misconstrued some of the evidence he submitted below as hearsay evidence
because the administrative judge did not have the benefit of all of the documents
he submitted to DOL throughout the processing of his DOL complaint. PFR File,
Tab 1 at 7. However, the appellant concedes that he did not submit all of the
evidence that he provided to DOL to the administrative judge despite the
administrative judge’s instructions to produce all relevant evidence concerning
his appeal, and he has not produced this alleged evidence on review . Id.; IAF,
Tab 3 at 6-7. Nevertheless, we have reviewed the hearsay evidence in question
and the administrative judge’s analysis of that evidence and find no error by the
administrative judge in concluding, based on the record before him, that the
evidence was not particularly probative or credible given its conclusory and
speculative nature, inconsistency with other undisputed evidence, and inherent
improbability. ID at 19-21; IAF, Tabs 5-6; see Brown, 110 M.S.P.R. 381, ¶ 12
n.2 (finding that the appellant’s declaration concerning his wife’s statements was
hearsay and admissible, but not probative when it was not supported by any other
evidence).
7

¶13 The appellant also appears to argue on review that the administrative judge
failed to adequately address the remediation plan that was developed as a result of
the investigation into BPA’s hiring practices and which prompted BPA’s
July 2014 offer of priority consideration to him. PFR File, Tab 1 at 7-8. He also
reiterates his claims that the agency made several errors in processing his
application for the Program Analyst (Budget) position, including denying him
veterans’ preference and improperly finding him ineligible. Id. at 4-5; IAF, Tab 5
at 4-8. These arguments, however, concern the merits of his nonselection and,
because he did not timely file his DOL complaint 3 or establish that equitable
tolling should apply, we do not have the authority to review his claims. See
Hayes v. Department of the Army, 111 M.S.P.R. 41, ¶ 12 (2009) (finding that,
when a preference eligible fails to meet the 60-day deadline for filing a complaint
with DOL and equitable tolling does not apply, the request for corrective action
must be denied based on a failure to meet the time limit for filing the DOL
complaint).
¶14 Accordingly, we affirm the initial decision and forward the appellant’s
claim under USERRA to the Western Regional Office for adjudication .

NOTICE OF APPEAL RIGHTS 4
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

3
As the administrative judge correctly determined, the appellant’s August 2016 DOL
complaint was untimely whether the 60-day period began when he learned of his
nonselection (September 2012), when he learned that he was being afforded priority
consideration (July 2014), or upon expiration of the priority consideration period
(October 2015). ID at 14-15.
4
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.
8

Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow 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).
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
9

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 tha t 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
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,
10

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. 5 The court of appeals must receive your

5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction ex pired 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.
11

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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12

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/9373205. Public record. Not legal advice.