Petition for Writ of Certiorari — Erice Maurice Kency, Petitioner v. Merit Systems Protection Board

Supreme Court briefJun 24, 2024

Ask Donna

What actually matters in this document.

Text

ifatlje

Supreme Court ot tfje tHmteto Stated

ERICE MAURICE KENCY,

Petitioner,

CHRISTINE E. WORMUTH

SECRETARY DEPARTMENT OF THE ARMY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Erice M. Kency, pro se

6205 Independence Way

Grove town, GA 30813

Phone: (912) 536-0940

Email: emkency@gmail.com

RECEIVED

AUG 2 0 2024

maaasgg*

QUESTIONED PRESENTED

Under Veterans Employment Opportunities

Act of 1998 (VEOA), 5 U.S.C. 3330a, Congress

established procedures for redress of alleged viola

tions of veterans' reemployment rights. Preferenceeligible veterans contending that their rights have

been violated in either a hiring setting would be

directed to file a complaint with DOL. If the Secre

tary of Labor is unable to resolve a complaint under

subsection (a) within 60 days after the date on which

it is filed, the aggrieved veteran may elect to appeal

the alleged violation to the Merit Systems Protection

Board (MSPB) in accordance with such procedures as

the Merit Systems Protection Board shall prescribe,

except that in no event may any such appeal be

brought... (A) before the 61st day after the date on

which the complaint is filed; or (B) later than 15 days

after the date on which the complainant receives

written notification from the Secretary under

subsection (c)(2)

1. The question presented is whether Congress

intended for VEOA, 5 U.S.C. 3330a(d)(l)(B) “except

that in no event, may any such appeal be brought—

later than 15 days after the date on which the

complainant receives written notification” to mean

that the time period is not mandatory and veterans

are authorized a procedural right to file an appeal

after 15 days with the MSPB after receiving written

decision from the Secretary of Labor.

STATEMENT OF RELATED PROCEDING

This case is related to the following proceedings in

the United States Court of appeal Federal Circuit

U.S. Court of Appeals for the Federal

Circuit in Kirkendall v. Dept, of Army,

479 F.3d (Fed. Cir. 2007) (reversed and

remand the case)

U.S. Court of Appeals for the Federal

Circuit in Walls v. Merit Systems

Protection Board, 29 F.3d (Fed. Cir.

1994) (reversed and remand the case)

Ill

TABLE OF CONTENTS

QUESTIONS PRESENTED.................................

STATEMENT OF RELATED PROCEDING....

TABLE OF CONTENTS........................................

APPENDICES INDEX..........................................

TABLE OF AUTHORITIES..................................

STATUES and FED RULE..................................

OTHER AUTHORITIES........................................

PETITION FOR A WRIT OF CERTIORARI....

OPINION BELOW.................................................

JURISDICTION......................................................

STATUTORY PROVISIONS INVOLVED........

STATEMENT OF THE CASE..............................

REASONS FOR GRANTING THE PETITION

Vll

Vlll

(A) Congress statutory language in VEOA, section

3330a(d)(l)(B) “except in no event may any such

appeal be brought... later than 15 days after the

date on which the complainant receives written

notification from the Secretary” is an important

issue for addressing violations of procedural rights

under the Due Process Clause............................ 7-11

Kirkendall v. Dept, of Army argues

How Congress intent should be

Interpreted...........................................

(B) MSPB’s administrative rules in 5 CFR 1208.22

(b) VEOA “must file the VEOA appeal with the

board within 15 days after the date of receipt of the

Secretary's notice” conflict with congress’s statutory

language that VEOA appeals may be brought “later

than 15 days after the date on which the

complainant receives written notification from the

Secretary” in section 3330a(d)(l)(B)

TABLE OF CONTENTS-Continued

were violated by the Administrative Judge’s initial

decision when he filed his appeal to the board Later

than 15 days after receiving notice from the

16-20

Secretary of Labor.

The Federal Circuit and Board denial

decisions conflict with Walls v. Merit

Systems Protection Board (1994) in which

Fed Cir ruled that a Veterans’ pro se

status and minimal delay collectively

constitute good cause for the untimely

filing of petitioner's appeal

CONCLUSION

INDEX TO APPENDICES

Appendix A — April 2, 2024 United States Court of

Appeals for the Federal Circuit, Panel Opinion,

case number 2024-1068 Merit Systems Protection

App.l

Board dismissal of appeal affirmed

Appendix B — September 1, 2023, Final Order of

the United States Of America Merit Systems

Protection Board Docket No 2065084 and DOCKET

NUMBER AT-3330-18-0193-I-1..... App.4

Appendix C - January 23, 2018 Order on Timeli

ness Initial Decision, United States Of America

Merit Systems Protection Board Atlanta Regional

and DOCKET

Office Docket No 1477306

App.14

NUMBER AT-3330-18-0193-I-1

Appendix D - PUBLIC LAW 105-339—OCT. 31,

1998, Statutory Provisions referred to in petition

body, the Veterans Employment Opportunities

App.20

Act of 1998, 5 USC 2101

TABLE OF AUTHORITIES

Cases:

Aldrich v. McCulloch Props., Inc.,

627 F.2d 1036, 1042-1043 (10th Cir. 1980)

Page

Alonzo v. Department of the Air Force,

4 M.S.P.R. 180, 184 (1980).....................

Bailey v. West, 160 F.3d at 1361

Banks v. Dep’t of the Air Force,

4 M.S.P.R. 268, 271 (1980).......

Clay v. Dep. of the Army,

123 M.S.P.R. 245, 249 (2016)

Cook v. Deltona Corp.,

753 F.2d 1552, 1562 (11th Cir. 1985)

Former Employees of Sonoco Products Co. v. Chao,

372 F.3d 1291, 1293 (Fed. Cir.2004).......................... 10

Gaddy v. Dep’t of the Navy,

100 M.S.P.R. 485, 489 (2005)

Glus v. Brooklyn Eastern District Terminal,

359 U.S. at 231, 79 S.Ct. 760...........................

Hamer v. Neighborhood Hous. Servs. of Chi.,

138 S. Ct. 13, 25 n.9 (2017)................................

Helen J. Lipscomb, v. Department of Defense,

69 M.S.P.R. 484....................................................

TABLE OF AUTHORITIES-Continued

Irwin v. Dep't of Veterans Affairs,

498 U.S. 89, 100 (1990)..................

10,14

Jack R. Daniel, v. Tennessee Valley Authority,

69 M.S.P.R. 376......................................................

Kirkendall v. Department of the Army,

479 F.3d 830, 836-44 (Fed. Cir. 2007)..

ii, 8-11, 14

Lampf, Pleva, Lipkind et al. v. Gilbertson,

501 U.S. at 363................................................

Lacy v. Dep’t of the Navy,

78 M.S.P.R. 434, 436-39 (1998)

McCarthy Barnes, Jr., petitioner v MSPB

Fd Cir, 2015-3018..........................................

Prupis & Petigrow v. Gilbert Son,

501 U.S. 350 (1991)........................

Russello v. United States,

464 U.S. 16, 23..................

8, 11

Sosa v. Alvarez-Machain,

542 U.S. 692, 712 n. 9, 124 S.Ct. 2739,

159 L.Ed.2d 718 (2004)...........................

Speker v. Office of Personnel Management

5 M.S.P.R. 380, 385 (1990)............................

Vll

TABLE OF AUTHORITIES-Continued

Walls v. Merit Systems Protection Board,

29 F.3d 1578, 1581-83 (Fed. Cir. 1994)....

ii, 19. 20

Washington v. Department of Veterans Affairs,

69 M.S.P.R. 86, 88...................................................

Woodyard-Hamilton v. Office of Personnel

Management, 64 M.S.P.R. 150 (1994).......

Young v. United States,

535 U.S. at 49-50, 122 S.Ct. 1036

STATUES and FED RULE.

5 U.S.C. § 3330a............

1, 2, 6, 20

5 U.S.C. 3330a(a)(l).......

5 U.S.C. 3330a(a)(2)(A)...

5 U.S.C. § 3330a(d)(l)....

.............. 3, 8, 9, 10, 13

5 U.S.C. § 3330a(d)(l)(B),

i, 5-8, 10, 12-14, 18, 20

5 USC § 2302.................

5 U.S. Code § 2108.........

5 U.S. Code § 2108 (3) (c)

28 U.S.C. § 1254(1)........

5 U.S. Code § 3304 (f)....

15 U.S.C. 77m...............

Vlll

TABLE OF AUTHORITIES: STATUES and FED

RULE -Continued

15 U.S.C. 78i(e).............

31 U.S.C. 3731................

5 CFR § 1208.22............

6, 12, 14-15, 21

5 CFR § 1208.22(B).......

5 CFR § 1208.22(b)........

6, 16, 18

5 C.F.R. § 1201.115(d)..,

5 C.F.R. § 1201.22(b)(1)

5 C.F.R. § 1201.29(d)....

OTHER AUTHORITIES

Cong. Res. Serv., Merit Systems Protection Board

(MSPB): A Legal Overview, R45630 (Mar. 25,

2019),

https://crsreports.congress.gOv/product/pdPR/R

sic

45630

U.S. Merit Systems Protection Board, Annual Report

for FY 2022 (Apr. 18, 2023),

https ://www .mspb. gov/about/annual_reports/M

SPB_FY_2022_Annual_Report_2022671.pdf.sic

U.S. Merit Systems Protection Board, Congressional

Budget Justification FY 2022 (May 2021),

OTHER AUTHORITIES continued

https://www.mspb.gov/about/

budget/FY_2022_Congressional_Budget_

Justification.pdf...........................................

sic

U.S. Merit Systems Protection Board, Judges’

Handbook (Oct. 2019), https://www.mspb.

gov/appeals/files/ALJHandbook.pdf..........

sic

Veterans Employment Redress Laws in the federal

civil service article,

http s ://www. mspb. gov/studie s/studie s/Veteran

s_Employment_Redress_Laws_in_the_Federal

_Civil_Service_l 103655.pdf.

U.S. Merit Systems Protection Board, Annual Report

for FY 2022, at 1 (Apr. 18, 2023

https://www.mspb.gov/about/annual

_reports/MSPB_F Y_2022_Annual_

Report_2022671.pdf.

U.S. Merit Systems Protection Board, Judges’

Handbook, ch. 2, § 7, at 11 (Oct. 2019),

https://www.mspb. gov/appeals/file s/ALJ

Handbook.pdf...............................................

PETITION FOR A WRIT OF CERTIORARI

Plaintiff, pro se, respectfully petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Federal

Circuit in this case Appendix A.

OPINIONS BELOW

The per curium decision of the Federal Circuit

is reported at 2024-1068 in Appendix A (App. 1)

The decision of the Merit Systems Protection

Board is reported at Docket No 2065084 in Appendix

B (App.4)

The initial decisions of the administrative law

judge are reported at Docket No 1477306 in

Appendix C (App. 14)

JURISDICTION

The Federal Circuit entered judgment on April

02, 2024 Appendix A at App. 1-3. This Court’s juris

diction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 3330a of Title 5 of the United States

Code is reproduced in appendix (D) (App.20) to this

petition.

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clauses of the Fifth Amend

ment protect citizens when the federal government

deprives them of life, liberty, or property, and limits

the government’s arbitrary exercise of its powers.

Veterans Employment Opportunities Act

of 1998, 5 USC 2101 in Appendix D At App.20-36

STATEMENT OF THE CASE

Congress believes veterans who have served in

the armed forces do not have an advantage when

competing for Federal jobs. Government agencies’

selections rules would typically exclude these veter

ans from competition for many government jobs.

Accordingly, the Committee believes that it is incum

bent upon the Federal Government to recognize the

valuable Federal service those veterans have

performed. Legislators amend Title 5 United States

Code, to provide that consideration may not be deni

ed to preference eligibles applying for certain

positionns. With that, this case concerns MSPB un

fair practices and rules interpretation on time limits

for administrative appeals from the denial of claims

alleging a violation of the veterans' preference law.

To establish "a uniform redress mechanism for

the enforcement of veterans' preference laws in both

hiring and reductions-in-force decisions," S. Rep. No.

340, 105th Cong., 2d Sess. 15 (1998); accord H.R.

Rep. No. 40, 105th Cong., 1st Sess., Pt. 1, at 9 (1997),

Congress enacted the Veterans Employment Oppor

tunities Act of 1998 (VEOA), 5 U.S.C. 3330a et seq.

The VEOA provides that "a preference eligible veter

an who alleges that an agency has violated such

individual's rights under any statute or regulation

relating to veterans' preference may file a complaint

with the Secretary of Labor." 5 U.S.C. 3330a(a)(l).

Such a complaint "must be filed within 60 days after

the date of the alleged violation." 5 U.S.C.

3330a(a)(2)(A). If the Secretary of Labor (Secretary)

is unable to resolve the complaint within 60 days of

its filing, the complainant may elect to appeal the

alleged violation to the Merit Systems Protection

Board (MSPB or Board). 5 U.S.C. 3330a(d)(l). In the

language at issue here, the VEOA section

3330a(d)(l)(B) provides that "in no event may any

such appeal be brought ^ * before the 61st day after

the date on which the complaint is filed; or * * later

than 15 days after the date on which the complainant

receives written notification from the Secretary" that

he was unable to resolve the complaint.

Plaintiff is a 100 percent disabled veteran who

applied for a civilian position of Intelligence

Specialist (Staff Management) at the Dept of the

Army base on Fort Eisenhower, Georgia. The Dept of

Army denied plaintiffs the right to apply for the

vacancy under preference eligible status. Preference

eligible defined under 5 U.S.C. § 2108: Veteran; dis

abled veteran. In accordance, the agency did not fol

low 5 U.S. Code § 3304 (0, Preference eligibles or

veterans who have been separated from the armed

forces under honorable conditions after 3 years or

more of active service may not be denied the

opportunity to compete for vacant positions for which

the agency making the announcement will accept

applications.

Congress

addressed veteran

preference

eligibility in 5 U.S.C. § 2302. Prohibited personnel

practices. The law states, “any employee who has

authority to take, direct others to take, recommend,

or approve any personnel action, shall not, with

respect to such authority, knowingly take, recom

mend, or approve any personnel action if the taking

of such action would violate a veterans' preference

requirement; or who knowingly fail to take, recom-

mend, or approve any personnel action if the failure

to take such action would violate a veterans' prefer

ence requirement.1

Plaintiff, a preference eligible veteran, pro se

sought relief from the Secretary of Labor, contending

that the Army violated the Veterans Employment

Opportunities Act of 1998 (VEOA), when the Depart

of the Army denied his veterans’ preference status

when they denied his application as a preference eli

gible on a vacancy announcement subject this com

plaint. Plaintiff filed a complaint with DOL within

the 60 day statutory time limit. When his investi

gation was closed, the Department of Labor,

Veterans’ Employment and Training Service (DOL

VETS) sent two separate email notifications

informing of the Secretary’s decision and his right to

file an appeal. The Secretary sent the first email

notification on 6 December 2017. Five days later the

Secretary sent a second email notification on 11

December 2017. The Secretary’s email notifications

did not provide any specific instructions explaining

which of the two dates from the two separate email

notifications should be used to initiate the appeal

with MSPB. Each email notification stated “the

appellant must file the VEOA appeal with the Board

“within 15 days “after the date of receipt of the Secre

tary's notice. DOL never provided an explanation on

which email notification to follow. Plaintiff utilized

the Dec 11, 2017, email notification to establish the

timeline to file an appeal in accordance with DOL

instructions. DOL instructions conflict with Con1 PUBLIC LAW 105-339—OCT. 31, 1998

gress intent. Dol instructions specifically uses man

datory language “within”. Congress wrote that for

this procedural step in veteran redress “except that

in no event may any such appeal be brought—later

than 15 days after the date on which the complainant

receives written notification”. 2

Plaintiff filed an MSPB appeal later than 15

days after receiving notification from the Secretary of

Labor. The administrative judge’s initial order dis

missed his appeal, finding that the petitioner’s MSPB

appeal was untimely filed. The AJ stated that the

MSPB appeal was not filed with the Board “within 15

days after the date of receipt...” siting 5 CFR §

1208.22 (B). Here. MSPB has placed a mandatory

statutory time limit that contradicts Congress intent

behind the rules established for disabled veteran’s

redress.

Plaintiff then filed an administrative petition

for review with the full Board. Plaintiffs under

standing of the MSPB administrative process was

that this was the fairest step. Plaintiff argued that

his appeal was filed timely based on 5 U.S.C.

3330a(d)(l)(B) that the 15- day period for filing his

appeal did not begin until after the second email

notification was received on December 11. A Couple

years later, the Board denied plaintiffs petition for

The Board affirmed the administrative

review.

judge’s initial decision, dismissing the petitioner’s

appeal as untimely filed.3

2 H. Rept. 105-40 and S. Rept. 105-340

3 MSPB regulations and case law establish that the

Board will not consider an argument raised for the

Plaintiff timely filed an appeal with the United

States Court of Appeals for the Federal Circuit. The

Fed Circuit misunderstood plaintiffs’ key arguments.

Plaintiff primarily argued that he timely filled an

appeal with the Board on December 11, 2017, He

continued by stating it was timely based on 5 U.S.C.

3330a(d)(l)(B). The Federal Circuit dismissed that

argument as unpersuasive. Whereas the Fed Circuit

only referred to plaintiffs procedural right based on

the contradicting MSPB regulation, 5 C.F.R. §

1208.22(b). The Federal Circuit decision further

references that there is a mandatory 15-day deadline.

This opinion further ignores plaintiffs procedural

rights, under the Due Process class, as they are

authorized by congress in 5 U.S.C. 3330a(d)(l)(B)

may any such appeal be brought... later than 15 days

after the date on which the complainant receives

written notification from the Secretary.

REASONS FOR GRANTING THE PETITION

The Court should grant the petition for cert

iorari because Congress did not authorized MSPB to

issue a Rule that change the statutory intent for

veterans’ redress under section 3330a.4 In MSPB’s

initial order, they AJ stated “To have been timely,

first time on review without a showing that it is

based on new and material evidence not previously

available despite the party’s due diligence. E.g., Clay

v. Dep. of the Army, 123 M.S.P.R. 245, 249 (2016);

Banks v. Dep’t of the Air Force, 4 M.S.P.R. 268, 271

(1980); 5 C.F.R. § 1201.115(d).

4 PUBLIC LAW 105-339—OCT. 31, 1998

the appellant’s appeal must have been filed 15 days

after he received notification that the DOL VETS had

closed his complaint. 5 U.S.C. § 3330a (d)(1)(B).”

MSPB issued its final order deciding, “A VEOA

appeal must be filed within 15 days after the

complainant receives written notification from DOL

that the complaint could not be resolved. The 15-day

deadline is statutory and mandatory, with no

provision to waive the deadline for good cause

shown.” MSPB has expressly redefined the statutory

time period to be a mandatory time limit in 5 CFR

1208.22. MSPB has gravely erred when it misinter

prets Congress intent for veteran redress in 5 U.S.C.

§ 3330a(d)(l)(B).

(A) Congress statutory language in

VEOA, section 3330a(d)(l)(B) which

states “except in no event may any

such appeal be brought... LATER

THAN 15 days after the date on

which the complainant receives

written notification from the Secre

tary” is an important issue for ad

dressing violations of procedural

rights under the Due Process

Clause.

In S. REP. NO. 105-340, 1998 WL

658809, at *16 (1998), Congress amended title 5

to create a uniform redress mechanism, modeled

after the procedures established in the Uni

formed Services Employment and Reemploy

ment Rights Act of 1994 for redress of alleged

violations of veterans' reemployment rights.

Congress enacted a stepped process for veteran

redress. Congress writes in section 3330a(d)(l),

If the Secretary of Labor is unable to resolve a

complaint under subsection (a) within 60 days

after the date on which it is filed, the

complainant may elect to appeal the alleged

violation to the Merit Systems Protection Board

in accordance with such procedures as the Merit

Systems Protection Board shall prescribe. Next

Congress further instructs, “except that in no

event may any such appeal be brought—"(A)

before the 61st day after the date on which the

complaint is filed; or (B) later than 15 days after

the date on which the complainant receives

written notification from the secretary.

The administrative judge denied plaintiff

appeal as untimely. The AJs decision provides

conflicting interpretation of congress intent behind

the language in 3330a(d)(l)(B).5 In Kirkendall v.

Dept, of Army, 479 F.3d 830, 833 (Fed. Cir. 2007) the

Fed Circuit examined the statue to determine if

Congress allowed equable trolling. In deciding if

equitable trolling was allowed, the Fed Circuit

5 Where Congress includes particular language in one

section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.") (quoting Russello v. United

States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17

(1983)). Kirkendall v. Dept, of Army, 479 F.3d 830,

840 (Fed. Cir. 2007)

examine Congress intent with the specific statutory

language “in no event” section 3330a(d)(l). In that

case Fed Circuit Court ignored the remaining part of

the statute where in Section 3330a(d)(l)(B) congress

attached statutory language that allowed VEOA

appeals to be filed “LATER THAN 15 days”. Whereas

Congress used "except in no event" to prevent any

possibility that the MSPB could establish procedures

or policies that would obstruct or prohibit appeals

from being brought in cases of alleged violations of

veterans' preference rights.

Kirkendall v. Dept, of Army argues how

Congress intent should be interpreted.

In Kirkendall v. Dept, of Army, 479 F.3d 830,

860 (Fed. Cir. 2007), Congress may not have allowed

for exceptions because it did not intend for there to

be any — as the "in no event" language plainly

suggests. Moreover, when Congress speaks clearly

expressing its intent that "in no event" may the time

period be extended, it seems inappropriate to

conclude that the fact that it did not say it twice

ought to weigh against giving force and effect to

Congress's words. The opinion in Kirkland further

stated, “particularly where the statute upon which

the VEOA was based included no time limits for

filing an appeal.” See Kirkendall v. Dept, of Army,

479 F.3d 830, 859 (Fed. Cir. 2007) Further the

opinion explained, “the purpose of the "in no event"

clause within section 3330a(d)(l), we find that the

statutory language itself is not unusually emphatic.

Rather, in this context, it is analogous to the

statutory language of "barred" and "shall be filed"

359 U.S. at 231, 79 S.Ct.

found in Glus,

760; Irwin, ; Bailey v. West, 160 F.3d at 1361; and

Former Employees of Sonoco Products Co. v.

Chao, 372 F.3d 1291, 1293 (Fed. Cir.2004) Kirkendall

v. Dept, of Army, 479 F.3d 830, 840 (Fed. Cir. 2007)

GAJARSA, Circuit Judge, concurring, with

whom Circuit Judge NEWMAN and Senior Circuit

Judge PLAGER join.” Kirkendall v. Dept, of Army,

479 F.3d 830, 846 (Fed. Cir. 2007) Judge Gajarsa

argues, It defies logic to suppose that when Congress

adopted the VEOA in 1998, well after the Supreme

Court's decision in Irwin, it intended the narrow in

terpretation that the government gives it. See

Young, 535 U.S. at 49-50, 122 S.Ct. 1036 (citations

omitted). Kirkendall v. Dept, of Army, 479 F.3d 830,

841 (Fed. Cir. 2007)

The relevant case, in Kirkland, mainly focused

on language ripe for deciding equitable trolling. In

doing so, the court had to determine if the specific

language in section 3330a(d)(l) was jurisdictional

while utilizing opinions from Irwin and Brockamp.

The opinion points out that the Supreme Court

nevertheless cites it in Young, 535 U.S. at 49, 122

S.Ct. 1036, to support the proposition that limitation

periods are customarily subject to equitable tolling,

unless it "would be 'inconsistent with the text of the

relevant statute."' (citations omitted). Kirkendall v.

Dept, of Army, 479 F.3d 830, 838 (Fed. Cir. 2007).

Here the Federal Circuit’s precedent conflict with the

statutory language in section 3330a(d)(l)(B).6

6 Congress chose a more rigid time period for bring

ing actions to the Board once the administrative

Congress established that an appeal had to be filed

“within 60 Days” to DOL. Then congress removed

the language “within”. Whether congress provided

that “except that in no event may any such appeal be

brought—" First before the 61st day after the date

on which the complaint is filed. This rule gives DOL

60 days to investigate. Next Congress introduces an

exception “except that in no event” to the process to

prevent MSPB from implementing rules against a

veteran’s decision to proceed with an appeal. Lastly,

after DOL has concluded its investigation then an

appeal may be brought later than 15 days after the

date on which the complainant receives written

notification from DOL.

(B) MSPB’s administrative rules in 5

CFR 1208.22 (b) VEOA “must file the

process was underway. Again, proper weight should

be given to the words Congress chose, especially

where Congress itself has drawn a distinction in the

words it used in the same statute. See Sosa v.

Alvarez-Machain, 542 U.S. 692, 712 n. 9, 124 S.Ct.

2739, 159 L.Ed.2d 718 (2004) (stating that there is a

"usual rule that when the legislature uses certain

language in one part of the statute and different

language in another, the court assumes different

meanings were intended" (internal citations and

quotations omitted)); Russello v. United States, 464

U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983); 2A

SINGER,

SUTHERLAND

STATUTORY

CONSTRUCTION § 46:6 (6th ed. 2000) Kirkendall v.

Dept, of Army, 479 F.3d 830, 857-58 (Fed. Cir. 2007)

VEOA appeal with the board within

15 days after the date of receipt of

the Secretary's notice” conflict with

congress’s statutory language that

VEOA appeals may be brought

“later than 15 days after the date on

which the complainant receives

written notification from the Secre

tary” in section 3330a(d)(l)(B).

According to Black's Law Dictionary, "later

than" typically denotes an action or event occurring

after a specified time or date. In Smith v. Department

of Labor, 20 F.3d 123 (2d Cir. 1994), the Second

Circuit Court of Appeals analyzed the phrase "later

than" in a similar context to allow for actions or -ings

after the initial deadline, provided certain conditions

were met. Congress reveals that the intent behind

establishing the timeframe for appealing to the

MSPB was to ensure complainants have a reasonable

opportunity to exhaust administrative remedies after

initial attempts at resolution.

The use of the language “within” under 5 CFR

1208.22 clearly provides a statutory time limit that

does not comply with Congress decision to enact a

procedural process that provides uniform redress

mechanism for the enforcement of veterans' prefer

ence laws. When Congress explicitly establishes a

requirement—such as filing a complaint within a

certain time period—the Board generally cannot

waive it. See Speker v. Office of Personnel Manage

ment, 45 M.S.P.R. 380, 385 (1990) (explaining that a

statutory deadline cannot be waived except in rare

circumstances) Notwithstanding, MSPB erroneously

decided that where Congress is silent and the Board

has the power to establish a requirement, that

requirement can be waived. MSPB established an

additional conflicting time requirements that states,

“If DOL issues a letter, the appeal cannot be filed

“more than 15 days after receipt of the letter”. In the

article sited below, MSPB explains that parties must

look to the rules established for their specific subject

matter or risk having their case be dismissed. Absent

equitable tolling, a failure to timely file a complaint

with DOL will deprive MSPB of jurisdiction.7 The

article clearly articulate MSPBs decision to ignore

Congress intent for VEOA section 3330a(d)(l)(B).

Veterans filing appeals pro se, can easily interpret

the statutory language “except in no event may an

appeal be brought” in section 3330a(d)(l) combined

with the statutory language “later than 15 day after

receiving notice” in section 3330a(d)(l)(B) to be

interpreted as Congress’s intent for VEOA appeals to

be filed after 15 days.

The

statutory

language

section

3330a(d)(l)(B) provides no clear indication that Con

gress wanted that provision to be treated as having

mandatory and jurisdictional attributes. Section

3330a(d)(l)(B) expressed that Congress intent is that

veterans may file an appeal with the MSPB later

than 15 days after receiving notification from the

7 Veterans Employment Redress Laws in the federal

civil service article,

https://www.mspb. gov/studies/studies/Veterans_Emp

loyment_Redress_Laws_in_the_Federal_Civil_Servic

e_1103655.pdf

Secretary of Labor. If Congress had wanted the 15

day time to be treated as mandatory and jurisdic

tional it could have cask that provision in language

that stated “within 15 days after receiving from the

Secretary of Labor or no later than 15 days after

receiving notice from the Secretary of Labor.8

In Kirkendall v. Dept, of Army, the government

argues section 3330a(d)(l)(B) contains such “unus

ually emphatic language. The government further

acknowledges that the VEOA statue does not provide

language that a VOEA appeal must be filed within 15

days or that a VEOA appeal shall be barred unless it

is filed within 15 days. The government sites Irwin,

489 U.S.at 94-95 (discussing status worded in that

manner). Siting Judge Moore noted in her dissenting

opinion in Kirkendall u Dept, of Army “Congress

could not have been clearer.” Judge Moore statement

rejects MSPB erroneously interpretation of the lang

uage in section 3330a(d)(l)(B) and in its implementtation of the language in CFR 1208.22. Whereas

Judge Moore’s statement supports congress intent in

section 3330a(d)(l)(B) that VEOA appeals may be

brought “later than 15 days after the claimant

receives notice from the Secretary of Labor.

Kirkendall v Dept, of Army further exploits the

government attempt to disprove congress intent for

In Kirkendall v. Dept, of Army, the government

argued that the 15 day time limit was mandatory

and jurisdictional. The Court of appeal rejected the

government’s argument that the 15 day statutory

time limit for filing a VEOA appeal with MSPB is

jurisdictional.

VEOA section 3330a(d)(l)(B) and denial of statutory

language conflict with CFR 1208.22. The government

argued, in other federal statutes establishing filing

deadlines, the phrase "in no event" has consistently

been strictly construed. Several major statutes pro

vide that an action must be brought within a speci

fied limitations period and "in no event" may be

brought outside a longer period of repose. See, e.g.,

15 U.S.C. 77m (Securities Act of 1933); 15 U.S.C.

78i(e) (Securities Exchange Act of 1934); 31 U.S.C.

3731 (False Claims Act). In Lampf, Pleva, Lipkind,

Prupis & Petigrow v. Gilbert son, 501 U.S. 350

(1991). The government’s argument continued, that

statute provides, in relevant part, that "in no event

shall any •k k k action be brought * * * more than

three years after the security was bona fide offered to

the public." 15 U.S.C. 77m. The Court reasoned that

"the purpose of the 3-year limitation is clearly to

serve as a cutoff." Lampf, 501 U.S. at 363. Lower

courts construing similarly worded statutes have

reached the same result. See, e.g., Cook v. Deltona

Corp., 753 F.2d 1552, 1562 (11th Cir. 1985); Aldrich

v. McCulloch Props., Inc., 627 F.2d 1036, 1042-1043

(10th Cir. 1980). Here it is apparent that MSPB

adoption of mandatory language “within” in CFR

1208.22 is not authorized by congress. Unlike other

statutes and rules, Congress did not intend for sec

tion 3330a(d)(l)(B) to have a cutoff. Congress intend

ed for section 3330a(d)(l)(B) to be the final proce

dural step that provides that "a preference eligible

veteran who alleges that an agency has violated such

individual's rights under any statute or regulation

relating to veterans' preference may file a complaint

with the Secretary of Lab

process were violated by the Admini

strative Judge’s initial decision when

he filed his appeal to the board Later

than 15 days after receiving notice

from the Secretary of Labor.

The appellant filed a timely appeal with the

MSPB. DOL investigator sent an email on 6

December 2017. Attached in the email was a letter

that stated VEOA appeal must be filed “within 15

days after receiving notice”. On 11 December 2017,

the DOL investigator sent a second email that

contained a letter that informs VEOA appeals “must

be filed within 15 days after receiving notice. The

second email notice was sent in order for the DOL

investigator to provide an error free letter with the

correct case number that references the appellant’s

case. The appellant proceeded to file an appeal with

the MSPB based on the notice that was received on

11 December 2017 per guidance Under 5 U.S.C. §

3330a(d)(l)(B). The AJ’s initial decision improperly

dismissed the appellant’s appeal for failing to file an

appeal with the board based on 5 CFR 1208.22 (b)

Veterans “must file the VEOA appeal with the board

within 15 days after the date of receipt of the

Secretary's notice an appeal. MSPB and Federal

Circuit affirmed the AJ’s decision on subsequent

opinions.

In his handling this VEOA appeal, the AJ

ignored internal MSPB rules providing an unfair

process. Thousands of appeals are filed with the

Board every year. For the 2022 fiscal year,

administrative judges in the regional offices and field

offices issued 4,867 decisions. U.S. Merit Systems

Protection Board, Annual Report for FY 2022, at 1

(Apr. 18, 2023),

https://www.mspb.gov/about/annual_reports/MSPB_

F Y_2022_Annual_Report_2022671.pdf. Generally,

“about 50%” of appellants are pro se. MSPB,

Congressional Budget Justification, supra, at 18.

Because of the frequency of pro se status, the

Board’s Judges’ Handbook states: “The MSPB’s policy

is to make special efforts to accommodate pro se

appellants. Generally, the AJ should not reject filings

by pro se appellants for failing to comply with

technical requirements, unless the violations are

repeated after a clear warning.” U.S. Merit Systems

Protection Board, Judges’ Handbook, ch. 2, § 7, at 11

(Oct. 2019), https://www.mspb.gov/appeals/files/ALJ

Handbook.pdf.

Consistent with that policy, the procedural

deadlines governing adjudication before the Board

are flexible to accommodate employees who often

proceed without counsel. The deadline to file an

appeal of most agency decisions with the Board is 30

days. 5 C.F.R. § 1201.22(b)(1) (“An appeal must be

filed no later than 30 days after the effective date, if

any, of the action being appealed, or 30 days after the

date of the appellant’s receipt of the agency’s deci

sion, whichever is later.”). This deadline is nonjurisdictional, and noncompliance may be excused for

good cause. Lacy v. Dep’t of the Navy, 78 M.S.P.R.

434, 436-39 (1998). And when an appeal is dismissed

without prejudice, and the appellant misses the

refiling deadline, the Board may waive the refiling

deadline for good cause, 5 C.F.R. § 1201.29(d), and

the appellant’s pro se status is a factor supporting a

finding of good cause, Gaddy v. Dep’t of the Navy, 100

M.S.P.R. 485, 489 (2005).

This VEOA appeal was filed in accordance

with the procedural process outlined in 5 U.S.C. §

3330a(d)(l)(B). Despite DOL investigator’s decision

to send multiple notices to file an appeal with the

Board, Congress established a non-restricted proce

dural step for veteran’s appeal to proceed through the

administrative process of the Board. Kirkland v

Dept, of Army satisfies key arguments that Congress

did not intend for appeal to be denied based on the 15

day time period. The AJ’s initial decision violated

that right when he erroneously interpreted the

statutory language in 5 U.S.C. § 3330a(d)(l)(B) to

contain strict words such as “within”. Thus the

Federal Circuit opinion affirms the CFR 1208.22(b)

erroneously interpretation of Congress intent. Fed

eral Circuit repeatedly has deprived federal employ

ees, usually proceeding pro se, of judicial review of

their employment rights by summarily dismissing

untimely appeals. The Federal Circuit incorrect

interpretation of this deadline therefore explodes

Congress’s statutory scheme to protect disabled vet

erans” rights.9

9 In Henderson, this Court explained that statutory

filing deadlines should not be interpreted to create

jurisdictional bars for litigants unless Congress

clearly intended that result. 562 U.S. at 434—35; see

The Federal Circuit and Board denial

decisions conflict with Walls v. Merit

Systems Protection Board (1994) in

which Fed Cir ruled that a Veterans’

pro se status and minimal delay

collectively constitute good cause for

the untimely filing of petitioner's

appeal.

In Walls v. Merit Systems Protection Board

(1994), the Federal Circuit considered factors such as

inadequate notice, the appellant's pro se status, and

emotional strain as contributing to "good cause"

despite a minimal delay in filing. The Federal Circuit

reversed the MSPB's dismissal of Walls' appeal as

untimely filed. The Federal Circuit determined that

the notice provided to Walls was inadequate,

especially considering his pro se status and the

emotional stress he experienced. The court empha

sized that even minimal delays, when combined with

other factors such as pro se and emotional strain, can

collectively constitute "good cause" for an untimely

filing. This decision emphasized the importance of

understanding and leniency in procedural rules.

Appellants’ arguments based on being pro se,

minimum delay and other mitigating factors reson

ates with the precedent set in Walls v. Merit Systems

Protection Board (1994), where the Federal Circuit

emphasized that even minor delays, when coupled

with efforts to comply and demonstrated diligence,

also Hamer v. Neighborhood Hous. Servs. of Chi., 138

S. Ct. 13, 25 n.9 (2017).

was enough justification for granting relief.

Similarly, in McCarthy Barnes, Jr. v. MSPB (2015),

the Federal Circuit reversed a dismissal based on a

minor filing delay of 3 days caused by efforts to

comply with procedural rules. In appeals brought

with similar arguments, the MSPB reversed the AJ's

decision, remanding those cases for further proceed

ings on the merits, establishing a precedent for

evaluating "good cause" in similar cases before the

MSPB. In Washington v. Department of Veterans

Affairs (1996), the board reopened the appeal even

after deciding to affirm the AJs decision after

deciding not to hear arguments based on evidence

that was available for the before the close of the

record. In Jack R. Daniel u. Tennessee Valley

Authority (1996), the board vacated the AJ’s order

because it recognized the appellant’s confusion, being

pro se and brief delay in filing as justifying waiver of

the filing deadline. See similar cases, Helen J.

Lipscomb v. Department of Defense (1996), WoodyardHamilton v. Office of Personnel Management (1994),

where the Board echoing principles established in

Walls vacated the AJs decision and remanded the

cases for further processing. These records implicate

the Federal Circuit and MSPB inconsistencies and

unfair implementation of the veteran’s redress statue

under Section 3330a.

CONCLUSION

MSPB erroneously misrepresented the statu

tory intent for filling VEOA appeals with the board

as defined in Section 3330a(d)(l)(B). MSPB lacked

the authority to change the statutory language and

Congress intent from “allowing appeals to be filed

later than 15 days” to “mandating veteran’s appeals

has to be filed within 15 days” in 5 CFR 1208.22.10

The petition for a writ of certiorari should be granted.

DATED: August, 14, 2024

Respectfully submitted,

Erice M. Kency, pro se

6205 Independence Way

Grovetown, GA 30813

Phone: (912) 536-0940

Email: emkency@gmail.com

10 Administrative Procedure Act

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.