                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     COREY D. STOGLIN,                               DOCKET NUMBER
                   Appellant,                        SF-3330-13-1464-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 23, 2014
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Corey D. Stoglin, Bloomington, Minnesota, pro se.

           Gonzalo Pinacho, Arlington, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal of his nonselection, under both the Uniformed Services
     Employment and Reemployment Rights Act of 1994 (USERRA) and the Veterans
     Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     such as this one only when: 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 to the facts of the case; the
     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. See 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, and based on the following points and authorities, 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 as to the
     appellant’s VEOA claim.       We VACATE the portion of the initial decision
     regarding the appellant’s VEOA claim, and instead DISMISS the claim as
     untimely filed.    We REMAND the appellant’s USERRA claim to the Western
     Regional Office for further adjudication.
¶2         The appellant applied for the GS-12 position of Equal Employment
     Manager with the Hawaii Air National Guard (Vacancy Announcement No. FS-
     406716-SK11) and was notified on January 12, 2011, that he was not selected.
     Initial Appeal File (IAF), Tab 1 at 3, Tab 8 at 16-19, 22-23.          The appellant
     thereafter filed a complaint with the Department of Labor (DOL) regarding his
     nonselection, alleging that the agency violated his veterans’ preference rights
     under VEOA. See IAF, Tab 6 at 3, Tab 10 at 4-5. In a letter dated March 25,
     2013, DOL notified the appellant of its determination to close his case, finding
     that he filed his complaint “significantly past the 60 day statutory limit”
     under 5 U.S.C. § 3330a(a)(2)(A). IAF, Tab 10 at 4. DOL informed the appellant
     of his right to file an appeal with the Board “within 15 calendar days of receipt”
     of its closure letter. Id.
                                                                                         3

¶3         The appellant filed his appeal with the Board on July 23, 2013. IAF, Tab 1.
     He stated that the agency hired a nonveteran and that he was not hired because of
     his status as a traditional reservist, which he alleged evidenced VEOA and
     USERRA violations. 2 IAF, Tab 1 at 5, Tab 5 at 4. He requested a hearing. IAF,
     Tab 1 at 2.
¶4         The administrative judge provided the appellant with notice regarding how
     to establish jurisdiction over his appeal under USERRA and VEOA. IAF, Tabs 2,
     3. She subsequently issued an initial decision dismissing the appellant’s appeal
     without holding the requested hearing. IAF, Tab 14, Initial Decision (ID). She
     found that the appellant failed to establish Board jurisdiction under USERRA.
     See ID. She also found, as to the appellant’s VEOA claim, that he failed to:
     (1) state a claim upon which relief could be granted; (2) establish Board
     jurisdiction because he did not demonstrate that he timely exhausted his
     administrative remedy with DOL; and (3) timely file his Board appeal. See ID.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. He asserts that the administrative judge: (1) erred in denying his
     request for a hearing; (2) failed to provide him with adequate notice regarding the
     timeliness issue in his appeal; and (3) ignored evidence submitted in support of
     his claims that the agency violated his veterans’ preference rights and
     inconsistently applied its hiring practices, Office of Personnel Management
     (OPM) regulations, and the law. Id.
     We VACATE the portion of the initial decision regarding the appellant’s VEOA
     claim.
¶6         As an initial matter, the administrative judge erred in finding that, because
     the appellant’s DOL complaint was untimely filed, he failed to establish that he

     2
       The appellant also alleged that his nonselection was based on race discrimination.
     IAF, Tab 5 at 5. However, the Board lacks jurisdiction to address this claim because a
     nonselection is not an action otherwise appealable to the Board. See 5 U.S.C.
     § 7702(a)(1); see also Wooten v. Department of Veterans Affairs, 102 M.S.P.R. 131,
     ¶ 15 (2006); 5 C.F.R. § 1201.3.
                                                                                                    4

     exhausted his administrative remedy with DOL and, therefore, that the Board has
     jurisdiction over this appeal. See ID at 5-7. The Board has explicitly overruled
     cases which hold that, where an appellant fails to timely file a complaint with
     DOL, he has failed to exhaust his administrative remedy. Garcia v. Department
     of Agriculture, 110 M.S.P.R. 371, ¶ 8 (2009). The 60-day time limit for filing a
     complaint with the Secretary of Labor under 5 U.S.C. § 3330a(a)(2)(A) is a
     statutory, not jurisdictional, requirement.             Id., ¶¶ 8-9, 12-13.       We also note,
     without making any jurisdictional findings, that the administrative judge’s
     determination that the Board lacks jurisdiction is inconsistent with her finding
     that the appellant’s VEOA appeal fails to state a claim upon which relief can be
     granted. A determination that an appeal fails to state a claim upon which relief
     can be granted is a finding regarding the merits of the appeal, which the Board
     cannot   reach     if     it   lacks    jurisdiction.          See   White   v.    U.S.   Postal
     Service, 114 M.S.P.R. 574, ¶ 11 (2010) (dismissal for failure to state a claim is
     not a proper disposition if an appellant fails to establish jurisdiction over his
     appeal because this disposition goes to the merits of the appeal, which the Board
     cannot resolve if it lacks jurisdiction). We therefore VACATE the initial decision
     concerning the aforementioned findings.
¶7         We also must VACATE the initial decision regarding the administrative
     judge’s finding that the appellant failed to timely file his Board appeal. The letter
     DOL sent to the appellant notifying him of its determination to close his case is
     dated March 25, 2013. IAF, Tab 10 at 4-5. The administrative judge found in the
     initial decision that the appellant should have filed his appeal by April 9, 2013, or
     15   days   from        the    date    DOL   issued      its    determination.       ID   at   6;
     see 5 U.S.C. § 3330a(d)(1)(B).           She therefore concluded that the appellant’s
     appeal was untimely filed by 105 days because he submitted it on July 23, 2013.
     ID at 6; see IAF, Tab 1.
¶8         It appears, however, that the administrative judge erred in calculating the
     appellant’s filing deadline from March 25, 2013. A Board appeal must be filed
                                                                                         5

     no “later than 15 days after the date on which the complainant receives written
     notification” that DOL has closed his case. 5 U.S.C. § 3330a(d)(1)(B) (emphasis
     added). The administrative judge’s finding assumes that the appellant received
     the DOL letter on the same day it is dated, but the Board presumes that
     documents placed in the mail are received within 5 days. See Williamson v. U.S.
     Postal Service, 106 M.S.P.R. 502, ¶ 7 (2007) (applying the 5-day mailing rule
     presumption to the 15-day filing deadline in a VEOA appeal).            DOL’s letter
     appears to have been sent by mail, but there is no evidence as to when it was
     actually mailed, and the date printed on the letter does not establish the date it
     was actually mailed.
¶9         Moreover, in the acknowledgement order, the administrative judge informed
     the appellant that a VEOA appeal must be filed with the Board within 15 days of
     receipt of DOL’s case closure letter. IAF, Tab 2 at 5. She further informed the
     appellant of his burden to demonstrate circumstances warranting equitable tolling
     of this time limit “if” his appeal was untimely filed. Id. at 5-6. However, before
     issuing the initial decision, the administrative judge did not explicitly advise the
     appellant that his appeal appeared to be untimely filed or identify the relevant
     dates upon which she would rely to make a timeliness determination. 3 See Vitale
     v. Department of Veterans Affairs, 107 M.S.P.R. 501, ¶ 10 (2007) (before
     dismissing an appeal as untimely filed, the administrative judge is required to
     inform the appellant of the date that a document triggering the right to appeal is

     3
       We recognize that the administrative judge ordered the appellant to file a statement
     showing, inter alia, when he received written notice from DOL. IAF, Tab 2 at 6. The
     appellant did not provide this information. However, he timely responded to the
     administrative judge’s order, asserting that he did not file his DOL complaint within
     60 days of the alleged violation because he did not suspect a VEOA violation until
     February 2013. IAF, Tab 5 at 4-5. Although the appellant failed to fully respond
     regarding timeliness, he clearly made an effort to comply with the administrative
     judge’s order which, as previously stated, did not provide him with adequate notice.
     Under similar circumstances, our reviewing court has held that dismissal on timeliness
     grounds is improper. See Hamilton v. Merit Systems Protection Board, 75 F.3d 639,
     647 (Fed. Cir. 1996).
                                                                                          6

      presumed    to   have    been   received);   see    also   Pierce   v.   U.S.   Postal
      Service, 60 M.S.P.R. 26, 28 (1993) (the appellant did not receive a fair
      opportunity to respond to the timeliness issue where the acknowledgement order
      gave him an opportunity to establish timeliness “if” there was a question as to
      whether his appeal was timely filed, but did not specify that there was a question
      as to the timeliness of the appeal).      Therefore, the appellant did not receive
      sufficient notice regarding the timeliness issue.
      We DISMISS the appellant’s VEOA claim as untimely filed.

¶10         On review, the appellant argues that he did not receive DOL’s closure letter
      until May 16, 2013. PFR File, Tab 1 at 4. In support of this claim, he attaches
      e-mail correspondence he had with a DOL employee in May 2013. Id. at 6-7. On
      May 15, 2013, he requested to have the closure letter sent to him by e-mail,
      stating that he was currently in short-term housing and was having his mail
      forwarded. Id. Then, on May 16, 2013, the employee sent the appellant a copy of
      the closure letter by e-mail. Id. at 7.
¶11         Under 5 C.F.R. § 1201.115, generally the Board will not consider evidence
      submitted for the first time with the petition for review absent a showing that it
      was unavailable before the record was closed despite the party’s due diligence.
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). However, we find
      it appropriate to consider the appellant’s evidence because he argues, and we
      agree, that he did not receive adequate notice below regarding the precise
      timeliness issue in his appeal. See PFR File, Tab 1 at 4. We find that the initial
      decision, coupled with the information provided in the acknowledgement order,
      cured the lack of notice, so the appellant had a fair opportunity to establish the
      timeliness of his appeal on review; the acknowledgement order informed the
      appellant of the time period for filing a VEOA appeal and, in the initial decision,
      the administrative judge made clear that the appellant’s appeal appeared to be
      untimely filed and indicated the date upon which she based her calculation of the
                                                                                            7

      filing deadline.     ID at 6; IAF, Tab 2 at 5; see Melendez v. Department of
      Homeland Security, 112 M.S.P.R. 51, ¶ 9 (2009) (an administrative judge’s
      failure to provide an appellant with proper notice regarding a timeliness issue
      may be cured by the agency’s pleadings or the initial decision).
¶12         The evidence and argument which the appellant submits on review do not
      establish that his appeal was timely filed. Assuming arguendo that the appellant
      received the DOL letter for the first time on May 16, 2013, he should have filed
      his appeal by May 31, 2013. 4            See 5 U.S.C. § 3330a(d)(1)(B).         As the
      administrative judge explained below, the 15-day deadline set forth at 5 U.S.C.
      § 3330a(d)(1)(B)      cannot   be    waived,    even    for    good    cause.       See
      Williamson, 106 M.S.P.R. 502, ¶ 6; IAF, Tab 2 at 5-6. This deadline may be
      subject to equitable tolling; however, such relief is only extended sparingly, such
      as in situations where an appellant has actively pursued his judicial remedies by
      filing a defective pleading during the statutory period, or where he has been
      induced or tricked by his adversary’s misconduct into allowing the filing deadline
      to pass. Alegre v. Department of the Navy, 118 M.S.P.R. 424, ¶ 17 (2012); see
      IAF, Tab 2 at 5-6.
¶13         The appellant has provided no explanation for his failure to file his appeal
      until July 23, 2013. We note that he does not contest July 23, 2013 as the filing
      date of his appeal, or allege that he initially attempted to file his appeal before the
      filing deadline. Moreover, DOL’s written decision explicitly informed him of his
      right to file a Board appeal “within 15 calendar days of receipt of th[e] letter,”
      and he has filed no evidence or argument indicating that he was somehow induced
      to believe or act otherwise. IAF, Tab 10 at 4. In fact, the DOL employee with

      4
       Under 5 U.S.C. § 3330a(d)(1)(A), a VEOA appeal may not be brought before the 61st
      day after the date on which the DOL complaint is filed. The record is not sufficiently
      developed for us to determine the exact date when the appellant filed his DOL
      complaint. However, he had clearly filed it as of March 12, 2013. See IAF, Tab 6 at 3.
      Therefore, if the appellant received DOL’s letter on May 16, 2013, then at least 61 days
      had passed since the filing of his DOL complaint and he should have filed his Board
      appeal within 15 days.
                                                                                           8

      whom he corresponded in May 2013 provided him with a Board appeal form,
      stating, “you[r] case was closed due to late file . . . you will need to file with the
      MSPB.” PFR File, Tab 1 at 6. Thus, we discern no basis to apply equitable
      tolling in this instance. We DISMISS the appellant’s VEOA appeal as untimely
      filed.
      We REMAND the appellant’s USERRA claim for further adjudication.

¶14            The appellant alleges that the administrative judge erred in dismissing his
      USERRA claim without a hearing. 5 Id. at 3. For the reasons set forth below, we
      agree.
¶15            To establish Board jurisdiction over a USERRA discrimination appeal, an
      appellant must nonfrivolously allege that:       (1) he performed duty or has an
      obligation to perform duty in a uniformed service of the United States; (2) the
      agency denied him initial employment, reemployment, retention, promotion, or
      any benefit of employment; and (3) the denial was due to the performance of duty
      or obligation to perform duty in the uniformed service. Swidecki v. Department
      of Commerce, 113 M.S.P.R. 168, ¶ 6 (2010). A claim of discrimination under
      USERRA should be broadly and liberally construed in determining whether it is
      nonfrivolous, particularly where, as here, the appellant is pro se.          Id.   The
      weakness of the assertions in support of a claim is not a basis to dismiss the
      USERRA appeal for lack of jurisdiction; rather, if the appellant fails to develop
      his contentions, his USERRA claim should be denied on the merits. Id.
¶16            The appellant alleged below, as to his USERRA claim, that the agency
      discriminated against him by failing to hire him for the position of Equal


      5
        After filing his petition for review, but before the record closed on review, the
      appellant sought to file an additional pleading regarding jurisdiction. PFR File, Tab 3
      at 4. He argued that the Board should consider Beck v. Department of the Navy,
      120 M.S.P.R. 504 (2014), which was issued after he filed his petition for review. PFR
      File, Tab 3 at 4. Because we find that the appellant stated a USERRA claim below, and
      accordingly remand this appeal for further adjudication, his request to file additional
      argument regarding jurisdiction is now moot.
                                                                                           9

      Employment Manager because of his status as a traditional reservist. IAF, Tab 5
      at 4.   He asserted that the agency “uses a merit system for hiring in which
      precedence is given to members of its organization who are already in its active
      reserve system even if they don’t meet the qualifications for the job posted and
      open to the public,” and that, therefore, his status as a traditional reservist put
      him at a disadvantage in the hiring process. Id. He also stated that the agency
      hired a nonveteran, although he, the appellant, was the most qualified candidate.
      IAF, Tab 1 at 5, Tab 13 at 5.
¶17           We   find   that   the   appellant’s   aforementioned   allegations,   although
      conclusory, are sufficient to establish Board jurisdiction over his USERRA claim.
      See Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 8 (2010) (finding
      that the appellant’s assertions, although “vague and lacking in specificity,” were
      sufficient to establish Board jurisdiction over his USERRA claim); see also
      Wilson v. Department of the Army, 111 M.S.P.R. 54, ¶ 10 (2009) (the appellant’s
      assertion that the agency terminated him because it “didn’t like the fact” of his
      service in the Army National Guard was sufficient to constitute a nonfrivolous
      allegation of a USERRA violation). The administrative judge’s finding that no
      agency practice affected the consideration of the appellant’s application because
      OPM conducted the hiring process and did not refer him on the best qualified list
      for the agency’s consideration may be relevant to the merits of the USERRA
      claim, but it does not preclude a finding of jurisdiction. 6 ID at 5; see IAF, Tab 8
      at 15, 20-21; see also Swidecki, 113 M.S.P.R. 168, ¶¶ 8-9 (finding that the
      agency’s argument—that the appellant could not nonfrivolously allege that his
      uniformed service was a substantial or motivating factor in its determination to
      deny him employment because the staff members who determined that he could

      6
        We note, however, that the agency cannot avoid liability simply because it elected to
      outsource hiring for the Equal Employment Manager position to OPM. OPM’s actions
      in reviewing applications and determining which applicants to refer to the agency are
      certainly relevant in this appeal. Notably, the record is not sufficiently developed to
      determine whether OPM applied the alleged “merit system” in assessing applicants.
                                                                                   10

not be considered for employment were unaware of his uniformed service—did
not provide a basis to dismiss the claim for lack of jurisdiction, but rather, related
to the merits of the appeal).    We must therefore REMAND this appeal for a
hearing.   See Swidecki, 113 M.S.P.R. 168, ¶ 6 (an appellant who raises a
USERRA claim has an unconditional right to a hearing).

                                      ORDER
      For the reasons discussed above, we REMAND the appellant’s USERRA
claim to the Western Regional Office for further adjudication in accordance with
this Remand Order. The administrative judge should incorporate by reference our
analysis and disposition of the appellant’s VEOA claim in the new initial decision
on the USERRA claim so that the appellant will have a single decision with
appropriate notice of appeals rights addressing both of his claims. See Goldberg
v. Department of Homeland Security, 99 M.S.P.R. 660, ¶ 12 (2005).




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
