Opinion

Shoneka Hall v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Feb 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHONEKA L. HALL, DOCKET NUMBER

Appellant, CH-0714-18-0418-I-1

DEPARTMENT OF VETERANS DATE: February 26, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clinton D. Hall , Indianapolis, Indiana, for the appellant.

Kyle C. Mardis , Indianapolis, Indiana, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed her appeal of the agency’s removal action taken under 38 U.S.C. § 714

as untimely filed. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to 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

clarify the initial decision’s analysis of the Board’s authority to waive or toll the

filing deadline of an appeal filed under 38 U.S.C. § 714, we AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

By notice dated April 25, 2018, the agency informed the appellant of her

removal for alleged misconduct, effective May 4, 2018. Initial Appeal File (IAF),

Tab 5 at 16-19. The notice further informed the appellant that she could file an

appeal of her removal with the Board “not later than 10 business days after the

effective date” of the removal action. Id. at 17.

On June 3, 2018, the appellant filed this appeal by mail. IAF, Tab 1 at 28.

She indicated in her appeal that she received the removal notice on April 28,

2018. Id. at 3. She further stated that, according to the 2013 version of the Board

appeal form she used to file her appeal, “I understand that I have 30 days to file

my appeal.” Id. at 6. After the agency filed a motion to dismiss the appeal as

untimely filed, to which the appellant did not respond, the administrative judge

scheduled a telephonic status conference. IAF, Tab 7. The appellant did not

appear for the status conference. Thereafter, the administrative judge issued an

Order to Show Cause in which she informed the appellant that her appeal

appeared to be untimely filed and that she must show that her appeal was timely

filed or that good cause existed for the delay in filing. IAF, Tab 8 at 1-2. The

appellant did not respond to the administrative judge’s order.

The administrative judge issued an initial decision in which she dismissed

the appeal as untimely filed by 20 days without a showing of good cause. IAF,

Tab 10. The appellant has filed a petition for review in which she argues the

merits of her appeal but does not address the timeliness issue. Petition for

Review (PFR) File, Tab 1. The agency has responded in opposition to the

petition for review. PFR File, Tab 3.

An appeal of a removal action taken under 38 U.S.C. § 714, such as this

one, “may only be made if such appeal is made not later than 10 business days

after the date of such removal.” 38 U.S.C. § 714(c)(4)(B); Ledbetter v.

Department of Veterans Affairs, 2022 MSPB 41, ¶ 6. The appellant’s removal

was effective May 4, 2018. IAF, Tab 5 at 16, Tab 6 at 4. Under 38 U.S.C.

§ 714(c)(4)(B), her appeal was due on or before May 17, 2018. She filed her

appeal on June 3, 2018, and, thus, her appeal was untimely filed by 17 days. The

remaining question, therefore, is whether the Board may waive or toll this

statutory deadline.

A deadline prescribed by statute or regulation may be waived when:

(1) the statute or regulation itself specifies circumstances in which the time limit

will be waived; (2) an agency’s affirmative misconduct precludes it from

enforcing an otherwise applicable deadline under the doctrine of equitable

estoppel, unless the application of equitable estoppel would result in the

expenditure of appropriated finds in contravention of statute; and (3) an agency’s

failure to provide a mandatory notice of election rights warrants the waiver of the

time limit for making the election. Ledbetter, 2022 MSPB 41, ¶ 8. The Board

has also recognized that the doctrine of equitable tolling may be available under

certain circumstances to toll a statutory deadline in an untimely filed appeal. Id.

The statutory time limit for filing an appeal under 38 U.S.C. § 714 cannot

be waived under the first basis because Congress did not provide for it. Id., ¶ 9.

It cannot be waived for “good cause shown,” id., and we find that the

administrative judge erred by applying a good cause standard in this appeal.

In addition, 38 U.S.C. § 714 does not require the agency to notify

employees of their election rights or any filing deadlines associated with those

elections, and there is similarly no regulatory notice requirement. Ledbetter,

2022 MSPB 41, ¶ 10. Thus, the deadline cannot be waived under the third basis.

The deadline could potentially be subject to equitable estoppel or equitable

tolling. Id., ¶ 11. However, equitable tolling is a rare remedy that is to be

applied in unusual circumstances and generally requires a showing that the

appellant has been pursuing her rights diligently and some extraordinary

circumstances stood in her way. Id., ¶ 13. We find that the appellant has not met

this burden. The record reflects that the agency provided her with accurate notice

of her right to file a Board appeal and the deadline for doing so, and that she

received this notice before the effective date of the removal action. IAF, Tab 1

at 3, Tab 5 at 16-17. The appellant has not explained why she chose to disregard

the notice provided by the agency and rely instead on a statement on the obsolete

Board appeal form she filed. She also has not explained why she did not contact

the Board office identified in the agency’s notice to ask for clarification. The

appellant has not alleged that she was induced or tricked by the agency’s

misconduct into allowing the deadline to pass. Indeed, she did not respond to the

agency’s motion to dismiss or the Order to Show Cause and on review, she does

not address the timeliness issue at all. Under these circumstances, we find that

the appellant has not demonstrated that she acted with due diligence in pursuing

her appeal or that any extraordinary circumstances stood in the way of her timely

filing. See Ledbetter, 2022 MSPB 41, ¶ 13 (finding that equitable tolling was not

available even when the agency provided the appellant with an incorrect

statement of the deadline for filing an appeal). Therefore, assuming that

equitable relief is available to excuse the appellant’s untimely appeal, she has not

shown that she is entitled to it.

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 does 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).

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:

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.

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. 420 (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,

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. 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