                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2016 MSPB 17

                            Docket Nos. DC-3330-15-0951-I-1
                                        DC-3330-15-1148-R-1

                                      Edward Bent,
                                        Appellant,
                                             v.
                                  Department of State,
                                         Agency.
                                       April 1, 2016

           Edward Bent, Berkeley, California, pro se.

           Alexandra H. Perina and Niels von Deuten, Washington, D.C., for the
             agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision in MSPB
     Docket No. DC-3330-15-0951-I-1 (case #0951), which dismissed for lack of
     jurisdiction his appeal under the Veterans Employment Opportunities Act of 1998
     (VEOA). While his petition for review was pending, he filed another appeal at
     the regional office concerning the same matter.      That appeal was designated
     MSPB Docket No. DC-3330-15-1148-I-1 (case #1148), and the administrative
     judge dismissed that appeal without prejudice pending the Board’s decision in
     case #0951. Neither party petitioned for review of the initial decision in case
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     #1148 and it became the Board’s final decision. Because the two appeals concern
     the same matter and because of the likelihood of confusion given the unusual
     procedural circumstances of these cases, we REOPEN case #1148 on our own
     motion under 5 C.F.R. § 1201.118.        We JOIN the appeals under 5 C.F.R.
     § 1201.36(b) because joinder will expedite processing of the cases and will not
     adversely affect the interests of the parties. For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE both initial decisions, and
     REMAND the cases to the regional office for further adjudication in accordance
     with this Opinion and Order.

                                     BACKGROUND
¶2         In 2009, the appellant, a preference-eligible veteran, sought to apply for a
     Diplomatic Security Service Special Agent position even though he exceeded the
     maximum-entry age restriction for such positions. Bent v. Department of State,
     MSPB Docket No. DC-3330-15-0951-I-1, Initial Appeal File (0951 IAF), Tab 1
     at 6. According to the appellant, the agency never responded to his application.
     Id.
¶3         On July 11, 2015, the appellant filed an appeal with the Board in which he
     alleged that the agency violated his veterans’ preference rights when it refused to
     accept his application for the Diplomatic Security Service Special Agent position.
     Id. at 2, 6. Because it appeared that the appellant had not exhausted his VEOA
     administrative remedies, the administrative judge ordered the appellant to submit
     evidence showing when the alleged violation of his veterans’ preference rights
     occurred, when he filed a complaint with the Department of Labor (DOL), and
     when, if at all, he received written notification from DOL that it was unable to
     resolve his complaint. 0951 IAF, Tab 2 at 3. In response, the appellant asserted
     that the violation occurred in 2009, and he submitted a letter from DOL’s
     Veterans’ Employment and Training Service (VETS) acknowledging that he had
     filed a VEOA complaint on July 15, 2015. 0951 IAF, Tab 6 at 3-4. He thereafter
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     submitted a second letter from VETS that dismissed his complaint because he had
     filed a Board appeal of the same matter.         0951 IAF, Tab 7 at 4-5.        The
     administrative judge then dismissed the appeal for lack of jurisdiction because the
     appellant did not file a VETS complaint before filing his Board appeal. 0951
     IAF, Tab 9, Initial Decision at 3-4. The appellant now petitions for review, the
     agency responds, and the appellant replies to the agency’s response. Petition for
     Review (PFR) File, Tabs 1, 4-5.
¶4         While the appellant’s petition for review in case #0951 was pending, he
     filed a new appeal with the regional office concerning the same matter as he
     raised in his first appeal.       Bent v. Department of State, MSPB Docket
     No. DC-3330-15-1148-I-1, Initial Appeal File (1148 IAF), Tab 1.                 The
     administrative judge dismissed that appeal without prejudice pending the outcome
     of the petition for review in case #0951.     1148 IAF, Tab 10, Initial Decision
     (1148 ID).   The administrative judge stated that the appellant could refile his
     appeal within 30 days from the date of the Board’s decision in case #0951. Id.
     at 3. Neither party petitioned for review of that initial decision and it became the
     Board’s final decision on November 25, 2015.

                                         ANALYSIS
¶5         To establish Board jurisdiction over an appeal brought under VEOA, an
     appellant must: (1) show by preponderant evidence that he exhausted his remedy
     with DOL; and (2) make nonfrivolous allegations that (i) he is a preference
     eligible within the meaning of VEOA, (ii) the action at issue took place on or
     after the October 30, 1998 enactment date of VEOA, and (iii) the agency violated
     his rights under a statute or regulation relating to veterans’ preference. 5 U.S.C.
     § 3330a; Roesel v. Peace Corps, 111 M.S.P.R. 366, ¶ 7 (2009); Wooten v.
     Department of Veterans Affairs, 96 M.S.P.R. 671, ¶ 10 (2004). To establish that
     he has met VEOA’s requirement that he exhaust his administrative remedies with
     DOL, the appellant must establish that:       (1) he filed a complaint with the
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     Secretary of Labor; and (2) the Secretary of Labor was unable to resolve the
     complaint within 60 days or has issued a written notification that the Secretary’s
     efforts have not     resulted in resolution of       the complaint.       See, e.g.,
     Roesel, 111 M.S.P.R. 366, ¶ 7.
¶6         Although the appellant had not filed a VEOA complaint with DOL at the
     time he filed his first Board appeal, he filed a complaint while the appeal was
     pending and he submitted uncontested evidence to the administrative judge
     showing that DOL issued written notification that it had closed its investigation.
     0951 IAF, Tabs 6-7. The Board’s practice is to adjudicate an appeal that was
     premature when filed but ripens while pending before the Board.            See, e.g.,
     Wooten, 96 M.S.P.R. 671, ¶ 9.         Because the appellant submitted evidence
     showing that he exhausted his remedy with DOL, the administrative judge erred
     by finding otherwise.
¶7         This finding, however, does not end our inquiry. When the administrative
     judge issued her initial decision dismissing the appellant’s first appeal for lack of
     jurisdiction, the appellant returned to DOL, which briefly reexamined his claim,
     found that it was not filed within the statutory time period, closed the complaint,
     and informed the appellant of his Board appeal rights. PFR File, Tab 5 at 4-8.
     As set forth above, the appellant then filed a new Board appeal concerning the
     same underlying matter. 1148 IAF, Tab 1. The administrative judge dismissed
     this second appeal without prejudice to its refiling pending the resolution of the
     appellant’s petition for review in case # 0951. 1148 ID at 2-3.
¶8         As noted above, we reopen case #1148 on our own motion and join it with
     case #0951 for the purpose of simplifying the needlessly complicated procedural
     issues in both cases.   We vacate the initial decision in case #0951 because it
     incorrectly dismissed the appeal for lack of jurisdiction. Further, we vacate the
     initial decision in case #1148 because it is subsumed by its joinder with case
     #0951.
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¶9          While we find that the appellant has satisfied the exhaustion requirement of
      the jurisdictional standard, it remains to be seen whether he can satisfy the
      remaining jurisdictional elements.      To do so, the appellant must make
      nonfrivolous allegations concerning each prong of the 3-pronged jurisdictional
      test recited above. See supra ¶ 5.
¶10          The Board issued new regulations on January 28, 2015, that modified and
      clarified the jurisdictional standards in its various types of cases. Because the
      appellant filed his Board appeal after the March 30, 2015 effective date of those
      regulations, they apply in this case.   80 Fed. Reg. 4489-01 (Jan. 28, 2015).
      Concerning the standard for establishing Board jurisdiction in VEOA appeals, our
      new regulations merely codified the existing standard set forth in case law.
      Compare 5 C.F.R. § 1201.57(b), (c)(1), with Wooten, 96 M.S.P.R. 671, ¶ 10.
      Thus, the appellant’s burden as set forth in Wooten and many other cases remains
      the same after the promulgation of the Board’s new regulations.
¶11         Although the administrative judge provided the appellant with explicit
      information on what is required to establish exhaustion in a VEOA appeal, she
      did not explicitly inform the appellant that he had the burden to make
      nonfrivolous allegations with regard to the remaining jurisdictional elements.
      0951 IAF, Tab 2 at 3. An appellant must receive explicit information on what is
      required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
      Protection Board, 758 F.2d 641, 643‑44 (Fed. Cir. 1985); Searcy v. Department
      of Agriculture, 115 M.S.P.R. 260, ¶¶ 12-13 (2010). Because the administrative
      judge did not provide this notice, the appellant has not had a fair opportunity to
      establish the Board’s jurisdiction over his appeal. Despite this, we find that the
      appellant has made a nonfrivolous allegation that he is preference eligible within
      the meaning of the VEOA, the disputed action took place in 2009 (after VEOA
      went into effect), and the agency violated his veterans’ preference rights by
      failing to consider him for a position because it imposed an unlawful
      maximum-entry age requirement. 0951 IAF, Tab 1 at 2, 4, 6; see Isabella v.
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      Department of State, 109 M.S.P.R. 453, ¶¶ 12-18 (2008) (finding that the
      maximum-entry age requirement was not essential to the duties of a Special
      Agent position and that the agency’s failure to waive the requirement violated the
      appellant’s veterans’ preference rights).       Thus, we find that the appellant
      established jurisdiction over his VEOA claim.
¶12            Finally, the appellant clearly filed his complaint with VETS well beyond
      the 60-day deadline set by the VEOA statute. See 5 U.S.C. § 3330a(a)(2)(A).
      This deadline is not jurisdictional; rather, it is similar to a statute of limitations
      that is subject to equitable tolling.          Kirkendall v. Department of the
      Army,     479 F.3d   830,   836-44   (Fed.   Cir.   2007);   Coats   v.   U.S.   Postal
      Service, 111 M.S.P.R. 268, ¶ 11 (2009).        Thus, on remand the administrative
      judge must first determine whether the filing deadline should be equitably tolled.
      As the Supreme Court explained in Irwin v. Department of Veterans Affairs, 498
      U.S. 89, 96 (1990), the Court has “allowed equitable tolling in situations where
      the claimant has actively pursued his judicial remedies by filing a defective
      pleading during the statutory period, or where the complainant has been induced
      or tricked by his adversary’s misconduct into allowing the filing deadline to
      pass.”

                                             ORDER
¶13            For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.
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FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
