U.S. Merit Systems Protection Board 
Case Report for December 14, 2012

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Stephen W. Gingery
Agency:  Office of Personnel Management
Intervenor:  Department of the Treasury
Decision Number:  2012 MSPB 130
Docket Number:  CH-3330-11-0732-I-1
Issuance Date:  December 11, 2012
Appeal Type:  Veterans Employment Opportunities Act (VEOA)

Veterans' Rights/VEOA
 - Exhaustion of DOL Remedy
 - Timeliness of DOL Complaint - Equitable Tolling

    The appellant petitioned for review of an initial decision that dismissed his VEOA appeal for lack of jurisdiction and as untimely filed.  The appellant claimed that OPM violated his veterans' preference rights when it approved the Treasury Department's request for a pass-over in connection with his application for a position.  The administrative judge dismissed the appeal for lack of jurisdiction without a hearing, finding that the Board lacks jurisdiction over pass-over decisions.  The judge further found that the appellant failed to present evidence showing the the Department of Labor (DOL) "received and attempted to resolve the appellant's complaint" and that he therefore had not proved that he exhausted his DOL remedies before filing his appeal.  The judge additionally found that the appeal was untimely filed.  

Holdings:  The Board vacated the initial decision and denied the appellant's request for corrective action on the basis that 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):

1.  The appellant exhausted his DOL remedy.

a.  To establish exhaustion, an appellant must show that he provided DOL with a summary of the allegations forming the basis of his complaint so that DOL can conduct an investigation.

b.  In finding that the appellant failed to prove that the DOL "received and attempted to resolve" the complaint, the judge did not apply the correct legal standard.  The statute anticipates that DOL will not always resolve VEOA complaints within 60 days, and it explicitly provides individuals with the means to pursue their rights in that event.  Instead, the statute requires only that the appellant show that he filed a VEOA complaint with DOL.  The appellant established by preponderant evidence that he did so.

2.  The appellant failed to meet the statutory deadline for filing a complaint with the Secretary of Labor.

a.  The statute requires that a complaint be filed with the Secretary of Labor within 60 days after the date of the alleged injury to the veteran's rights.

b.  The appellant was aware of OPM's decision granting the Treasury Department's pass-over request no later than January 15, 2009.  The deadline for timely filing was March 16, 2009; the appellant's April 4, 2009 complaint with DOL was untimely filed by 19 days.

c.  There is no basis in the record for applying the doctrine of equitable tolling to excuse the untimely filing.  

d.  Untimely filing is a proper basis for denying a request for corrective action under VEOA.  

3.  In light of the denial of the the appellant's request for corrective action on the basis of the untimely filed DOL complaint, the Board need not decide whether the Board appeal was timely filed or the Board's jurisdiction over the appeal.  




COURT DECISIONS

Petitioner:  Carolyn M. Kloeckner
Respondent:  Hilda L. Solis, Secretary of Labor
Tribunal:  United States Supreme Court
Docket Number:  11-184
Issuance Date:  December 10, 2012

Discrimination - Mixed Case Procedures

    At issue in this case was the proper avenue of court review available to an individual who has brought a "mixed case" to the Merit Systems Protection Board, where the Board has dismissed the discrimination claim on procedural grounds rather than addressed it on the merits.  A mixed case is one in which a federal agency has taken an action that is directly appealable to the Board, and the individual alleges that the agency action was based on prohibited discrimination.

Holdings:  The Supreme Court ruled that federal district court is the proper venue for review of a mixed case, regardless of whether the Board decided the discrimination claim on the merits or on procedural grounds.  



The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the followings cases:

Becker v. Department of Veterans Affairs, No. 2012-3111 (Dec. 10, 2012) (MSPB Docket No. NY-4324-11-0013-I-1) (affirming the Board's decision, which denied his USERRA claim contesting Becker's non-selection for a position)

Ricketts v. Merit Systems Protection Board, No. 2012-3109 (Dec. 10, 2012) (MSPB Docket No. NY-0752-11-0301-I-1) (affirming the Board's decision, which declined to reopen a 1994 decision affirming a removal action)

French v. Merit Systems Protection Board, No. 2012-3151 (Dec. 11, 2012) (MSPB Docket No. CH-0353-11-0232-I-1) (affirming the Board's decision, which dismissed French's petition for review as untimely filed)

Shipp v. Department of Health & Human Services, No. 2012-3141 (Dec. 13, 2012) (MSPB Docket No. SF-300A-11-0321-I-1) (affirming the Board's decision, which denied Shipp's appeal of decisions
by the agency not to select him to fill any of five vacancies for which he applied)

FEDERAL REGISTER NOTICE

     The MSPB issued a Federal Register notice on December 3, 2012, 77 Fed. Reg. 71640, seeking public comment on a proposed revision to the MSPB Appeal Form.  A copy of the proposed Appeal Form has been posted on the MSPB website:
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=777623&version=780546&application=ACROBAT.      

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