                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEAN M. FINCH,                                  DOCKET NUMBER
                         Appellant,                  AT-3330-13-0870-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 6, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lorenzo Cobb, Esquire, Sugarhill, Georgia, for the appellant.

           Managing Counsel, Philadelphia, Pennsylvania, for the agency.

           Sandra W. Bowens, Esquire, Memphis, Tennessee, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied as untimely filed the appellant’s request for corrective action under the
     Veterans Employment Opportunities Act of 1998 (VEOA). Generally, we grant

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     petitions 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 and AFFIRM the initial decision which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2           On or around November 13, 2012, the appellant, a preference-eligible
     veteran, applied for the position of Transitional City Carrier TE (Conversion
     MOU) in Cleveland, Tennessee. Initial Appeal File (IAF), Tab 7 at 22. The
     Office of Personnel Management thereafter disapproved the agency’s request to
     pass over the appellant.       Id. at 21.   The appellant filed a complaint with the
     Department of Labor (DOL) in which he alleged that he was denied his veterans’
     preference rights in connection with his application for the Transitional City
     Carrier position. See id. at 22 (Mar. 15, 2013 letter from DOL to the agency). 2
¶3           On May 10, 2013, DOL issued a letter closing the appellant’s complaint
     based upon its determination that the agency: (1) had placed the appellant in the
     position of Transitional City Carrier on March 20, 2013, with an effective date of
     December 1, 2012; (2) was processing a “back wage payment” to him of
     $16,239.55; (3) would credit him with the annual leave he would have accrued

     2
         The appellant’s DOL complaint is not part of the record.
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     under the governing collective bargaining agreement had he been in a pay status
     from December 1, 2012 to March 19, 2013; and (4) had agreed to comply with
     statutes governing his receipt of unemployment insurance from December 1, 2012
     to March 19, 2013. 3 IAF, Tab 1 at 8-9. DOL informed the appellant that if he
     was not fully satisfied with the resolution of his complaint, then he had the right
     to appeal its decision to the Board within 15 calendar days of receipt of DOL’s
     letter. Id. at 9.
¶4         The appellant received DOL’s May 10 letter on or about May 13, 2013. See
     IAF, Tab 7 at 29.      He did not file an appeal with the Board, however, until
     July 11, 2013, approximately 6 weeks beyond the filing deadline. IAF, Tab 1. In
     his appeal, the appellant did not dispute that the agency placed him in a
     Transitional City Carrier position effective December 1, 2012, or that the agency
     paid him $16,239.55.       Rather, he claimed that the agency failed to honor an
     alleged promise to place him in a career Letter Carrier position when the
     Transitional City Carrier position was phased out pursuant to an agreement
     management negotiated with the union in April 2013. IAF, Tab 10 at 1-2. He
     also alleged that the agency erroneously failed to pay him interest on the back pay
     and to make “payment on [a] leave balance entitlement.” IAF, Tab 12 at 2.
¶5         In an acknowledgment order, the administrative judge advised the appellant
     of the jurisdictional and timeliness requirements for filing a VEOA appeal as well
     as the criteria for establishing whether the time limits for filing such an appeal
     should be equitably tolled. IAF, Tab 3 at 5-6; see also IAF, Tab 9. After both
     parties submitted responses, the administrative judge issued an initial decision
     denying the request for corrective action on the grounds that the appeal was
     untimely filed and that the appellant had failed to establish that the time limits for



     3
       The DOL letter also stated that it was providing the appellant a copy of its letter to the
     agency and a copy of a settlement agreement and release signed by an agency
     representative. IAF, Tab 1 at 9.
                                                                                       4

     filing an appeal should be equitably tolled.    IAF, Tabs 10-12, Tab 13, Initial
     Decision (ID).
¶6         In his petition for review, the appellant reiterates his arguments below that
     the deadline for filing his Board appeal should be equitably tolled because DOL
     remained involved in his complaint after May 10, 2013, and because the agency’s
     noncompliance with the terms upon which DOL resolved his complaint
     demonstrates that he was induced or tricked by the agency’s misconduct into
     allowing the filing deadline to pass. Petition for Review (PFR) File, Tab 3 at 3-6.
¶7         An appellant must file a VEOA appeal no later than 15 days after receiving
     written notification from the Secretary of Labor concerning the results of DOL’s
     investigation.   5 U.S.C. § 3330a(d)(1)(B); Gingery v. Department of the
     Treasury, 110 M.S.P.R. 83, ¶ 23 (2008).        As discussed above, the appellant
     received such notification on or about May 13, 2013.        See IAF, Tab 7 at 29.
     Consequently, the deadline for filing this appeal was May 28, 2013. See 5 U.S.C.
     § 3330a(d)(1)(B).   The appellant did not file this appeal until July 11, 2013,
     approximately 6 weeks beyond the 15-day statutory filing deadline. IAF, Tab 1.
¶8         Nevertheless, as the administrative judge recognized, under the Federal
     Circuit’s decision in Kirkendall v. Department of the Army, the 15-day filing
     deadline set forth in 5 U.S.C. § 3330a(d)(1)(B) is subject to equitable tolling, and
     an employee’s failure to file a Board VEOA appeal within 15 days after receiving
     the Secretary of Labor’s written notification of the results of the Secretary’s
     investigation of the appellant’s VEOA complaint does not summarily foreclose
     the Board from exercising jurisdiction to review the appeal.        479 F.3d. 830,
     835-44 (Fed. Cir. 2007); Gingery, 110 M.S.P.R. 83, ¶ 24.        The United States
     Supreme Court explained in Irwin v. Department of Veterans Affairs, 498 U.S. 89,
     96 (1990), that federal courts have “typically extended equitable relief only
     sparingly,” and that the Court had 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 claimant has been “induced or
                                                                                          5

      tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
      See Gingery, 110 M.S.P.R. 83, ¶ 24.
¶9          The appellant did not file a defective pleading within the statutory period.
      Moreover, even accepting as true the appellant’s account that the agency told him
      that it would place him in a Career City Carrier position when the Transitional
      City Carrier position was phased out, this does not establish that he was induced
      or tricked into allowing the filing deadline to pass. That is, there is no dispute
      that the appellant’s DOL complaint concerned his application for the Transitional
      City Carrier position, that DOL’s May 10, 2013 letter notified him of the express
      terms upon which it had resolved his VEOA complaint, and that those terms did
      not include any obligation on the agency’s part to place him in a Career City
      Carrier position. IAF, Tab 1 at 8-9. Although DOL’s letter expressly advised the
      appellant that, if he was not fully satisfied with its resolution of his complaint, he
      had the right to appeal its decision to the Board within 15 calendar days of receipt
      of DOL’s letter, he did not do so. Under these circumstances, we agree with the
      administrative judge that the appellant has failed to establish that the agency’s
      noncompliance with alleged promises that were not set forth in DOL’s closure
      letter induced or tricked him into allowing the deadline for filing a Board appeal
      to pass. ID at 4-5.
¶10         Further, we agree with the administrative judge that the appellant’s
      contention that DOL remained involved in his complaint until July 2013 does not
      describe any circumstances leading to a conclusion the filing deadline should be
      equitably tolled. ID at 4. Indeed, because the appellant’s correspondence with
      the DOL representative occurred in July 2013, after the filing deadline had
      already passed, he could not have been induced or tricked into missing the
      deadline by any misinformation he received as a result of that correspondence.
      See IAF, Tab 1 at 10; see Hayes v. Department of the Army, 111 M.S.P.R. 41,
      ¶ 11 (2009).   Rather, the record indicates that the appellant’s failure to file a
      timely DOL complaint was a result of his own lack of due diligence in preserving
                                                                                         6

      his legal rights, which is not grounds for equitable tolling. Hayes, 111 M.S.P.R.
      41, ¶ 11.
¶11         Insofar as the appellant contends that the agency’s failure to place him in a
      Career City Carrier position itself constitutes an independent ground for granting
      corrective action under VEOA, the record contains no evidence that he raised
      such a claim before DOL. Unless an agency action is appealable to the Board
      under some other law, rule, or regulation, VEOA does not permit the Board to
      consider alleged violations of veterans’ preference rights that have not first been
      raised before DOL. White v. U.S. Postal Service, 114 M.S.P.R. 574, ¶ 9 (2010).
      The only record evidence concerning the exhaustion requirement is the May 10,
      2013 letter from DOL to the appellant, and it is unclear, based on this letter alone,
      whether the appellant raised with DOL any of the alleged agency actions
      concerning a Career City Carrier position.      Although the Board uses a liberal
      pleading standard for allegations of veterans’ preference violations in a VEOA
      appeal, evidence of the exhaustion requirement is mandatory under the statute and
      is not subject to the same liberal construction. Burroughs v. Department of the
      Army, 115 M.S.P.R. 656, ¶ 10, aff’d, 445 F. App’x 293 (Fed. Cir. 2011);
      see 5 U.S.C. § 3330a(d). The appellant’s failure to exhaust his administrative
      remedy regarding such a claim deprives the Board of jurisdiction to consider it
      here. 5 U.S.C. § 3330a(d)(1); see Gingery, 110 M.S.P.R. 83, ¶ 14.
¶12         Finally, the appellant also contends on review that his appeal should be
      remanded to DOL for further investigation of his claims that the settlement
      agreement and release signed by an agency representative was invalid or
      incomplete, that the terms of the settlement agreement authorize him to request
      DOL to reopen the case for further investigation, and that agency has not
      complied with its alleged agreement to place him in a Career City Carrier
      position. PFR File, Tab 3 at 2-3, Tab 5.       The appellant also submits several
      documents for the first time on review, including a copy of the settlement
      agreement and release and correspondence from the agency concerning the
                                                                                        7

      phasing out of the Transitional City Carrier position and his eligibility to apply
      for a Career City Carrier position. PFR File, Tab 1 at 2-4, Tab 2 at 8-15, Tab 5
      at 7-9. We have not considered these documents, as they significantly predate the
      close of the record below and the appellant has not shown that they were
      unavailable before the record closed despite his due diligence. See 5 C.F.R. §
      1201.115; Avasino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (the Board
      will not consider evidence submitted for the first time with the PFR absent a
      showing that it was unavailable before the record was closed despite the party’s
      due diligence). Further, the Board will not normally consider an argument raised
      for the first time in a petition for review absent a showing that it is based on new
      and material evidence not previously available despite the party’s due diligence.
      Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
      has failed to make such a showing here.
¶13        In any event, although DOL’s resolution of a veterans’ preference
      complaint does not divest the Board of jurisdiction over an appellant’s VEOA
      appeal, see Gingery, 110 M.S.P.R. 83, ¶ 20, the appellant has cited no authority
      for the proposition that the Board has the authority to enforce the alleged terms
      upon which a VEOA complaint has been resolved or to reopen such a complaint
      and remand it to DOL for further investigation.        Rather, the question of an
      appellant’s entitlement to such relief is properly addressed through enforcement
      proceedings once the Board has ordered corrective action under VEOA.             Cf.
      Williams v. Department of the Air Force, 108 M.S.P.R. 567, ¶ 11 (2008) (finding
      that if, after the agency reconstructs the hiring process as ordered by the Board,
      the appellant is placed at a grade level with which he disagrees, he may raise the
      matter in a petition for enforcement). Because the administrative judge properly
      denied corrective action in this case, the appellant’s allegations of noncompliance
      fall outside the scope of the Board’s remedial authority under VEOA.
                                                                                        8

¶14        Accordingly, because the appellant here filed an untimely Board appeal and
      equitable tolling does not apply, we AFFIRM the initial decision, DENYING the
      appellant’s request for corrective action under VEOA.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
      Additional information 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, and 11.
           If you are interested in securing pro bono representation for your court
      appeal, you may visit our website at http://www.mspb.gov/probono for a list of
                                                                            9

attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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