                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     J. EMMANUEL I. SANTA TERESA,                    DOCKET NUMBER
                    Appellant,                       DE-3330-16-0185-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 14, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           J. Emmanuel I. Santa Teresa, Metairie, Louisiana, pro se.

           Sandra Fortson, Joint Base Andrews, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the administrative
     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. 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, 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).

                                      BACKGROUND
¶2        On September 21, 2015, the agency notified the appellant, a preference
     eligible, that he had not been selected for a GS-13 Attorney Advisor position at
     Davis-Monthan Air Force Base. Initial Appeal File (IAF), Tab 1 at 13-14; Tab 1,
     Subtabs A(1), (5). On December 31, 2015, the appellant filed a complaint with
     the Department of Labor (DOL) alleging that his nonselection constituted a
     violation of VEOA. IAF, Tab 1, Subtab A. By letter dated January 15, 2016,
     DOL informed the appellant that his complaint was untimely and, as a result, his
     case was being closed. Id., Subtab D.
¶3        The appellant then filed this VEOA appeal with the Board alleging that the
     agency violated his veterans’ preference rights when it did not select him for the
     Attorney Advisor position. IAF, Tab 1. He contended that his DOL complaint
     was timely, or, alternatively, equitable tolling was warranted because he had no
     reason to know that his veterans’ preference rights had been violated until
     December 18, 2015, when he discovered that the person who had been selected
     for the position was not a veteran. Id. at 17-18. He argued that, prior to this, he
     assumed the individual hired was a veteran who had comparable experience to
                                                                                             3

     him because, when he followed up with the individual who interviewed him for
     feedback, he was told that it was “neck and neck” between him and the selectee
     on qualifications and, if it were a race, it was a “classic photo finish.” Id. at 17.
¶4         Without holding the appellant’s requested hearing, the administrative judge
     issued an initial decision denying the appellant’s request for corrective action.
     IAF, Tab 14, Initial Decision (ID). The administrative judge determined that the
     appellant had filed his complaint with DOL more than 60 days after the date of
     the alleged violation of his veterans’ preference rights and that he failed to show
     that the doctrine of equitable tolling should be invoked to toll the deadline. ID
     at 3-6.
¶5         The appellant has filed a petition for review in which he reiterates his
     argument below that his DOL complaint was timely because the alleged veterans’
     preference violation occurred on December 18, 2015, the date he contends he
     became aware of the selectee and her qualifications, not September 21, 2015, the
     date he was notified of his nonselection for the position. Petition for Review
     (PFR) File, Tab 1 at 4-10. Alternatively, he reiterates his argument that equitable
     tolling is warranted under the circumstances. Id. at 10-11. The agency has filed a
     response in opposition. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         Under 5 U.S.C. § 3330a(a)(1)(A), “[a] preference eligible 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.” 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 is
     unable to resolve such a complaint within 60 days after the date on which it is
     filed, the complainant may appeal the alleged violation to the Board. 5 U.S.C.
     § 3330a(d)(1).
                                                                                            4

¶7         We agree with the administrative judge that the alleged veterans’ preference
     violation occurred on September 21, 2015, when the appellant was notified that
     he was not selected for the Attorney Advisor position. ID at 3. Accordingly, the
     appellant had until November 20, 2015, to file a complaint with DOL.                 See
     5 U.S.C. § 3330a.     The appellant acknowledges that he did not file his DOL
     complaint until December 31, 2015, more than 3 months after the alleged
     violation occurred. IAF, Tab 1 at 15. Thus, the administrative judge properly
     found that the appellant’s administrative complaint with DOL was untimely
     filed. 2 ID at 3.
¶8           The appellant’s assertion that his knowledge of the selectee’s veteran
     status and qualifications, rather than his knowledge of the nonselection, was the
     trigger for the 60-day time limit is not consistent with the express language of the
     statute itself or Board precedent. 3 See 5 U.S.C. § 3330a(a)(2)(A) (“A complaint
     under this subsection must be filed within 60 days after the date of the alleged
     violation.”); see also Hayes v. Department of the Army, 111 M.S.P.R. 41, ¶¶ 2, 11
     (2009) (finding that when the agency selected another person for the position on
     February 3, 2005, the appellant’s December 1, 2005 complaint to DOL was filed
     nearly 10 months after the date of the agency’s action, and nearly 8 months after
     the expiration of the statutory 60-day time limit for filing set forth at 5 U.S.C.
     § 3330a(a)(2)(A)).     The appellant’s argument is also inconsistent with the
     decision of the U.S. Court of Appeals for the Federal Circuit in Jones v. Merit
     Systems Protection Board, 497 F. App’x 1, 3 (Fed. Cir. 2012), in which the court

     2
       The initial decision incorrectly states that the appellant had until November 20, 2016,
     to file his complaint with DOL, instead of November 20, 2015. ID at 3. It also
     mistakenly references the appellant’s DOL complaint as being filed on December 31,
     2016, instead of December 31, 2015. ID at 3. We find that these inadvertent
     typographical mistakes do not amount to adjudicatory error.
     3
       Despite the appellant’s arguments concerning the various unintended consequences of
     the statutory language, PFR File, Tab 1 at 6-7, we are bound to follow the
     unambiguously expressed intent of Congress, see Chevron, U.S.A., Inc. v. Natural
     Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984).
                                                                                           5

      determined that the 60-day filing period was tied to the appellant’s notice of his
      nonselection. 4
¶9          The 60-day filing deadline set forth at 5 U.S.C. § 3330a(a)(2)(A), however,
      is subject to equitable tolling, and an employee’s failure to file a complaint with
      DOL within that 60-day period does not summarily foreclose the Board from
      exercising jurisdiction to review the appeal.      Kirkendall v. Department of the
      Army, 479 F.3d 830, 835-44 (Fed. Cir. 2007) (en banc); Garcia v. Department of
      Agriculture, 110 M.S.P.R. 371, ¶ 12 (2009). Equitable relief is extended only
      sparingly, however, under circumstances such as when the appellant had actively
      pursued his remedies by filing a defective pleading during the statutory period, or
      where the appellant had been induced or tricked by his adversary’s misconduct
      into allowing the filing deadline to pass.         Brown v. U.S. Postal Service,
      110 M.S.P.R. 381, ¶ 10 (2009).
¶10         Here, we agree with the administrative judge that the appellant has not
      shown that either criterion is met, and equitable tolling therefore does not apply.
      ID at 3-6. As the administrative judge found, the appellant does not claim that he
      actively pursued his remedies in any forum during the statutory 60-day period.
      ID at 4. Rather, the appellant argues that the agency official who interviewed
      him deceived him into believing that the agency had properly conducted the
      hiring process, causing him to miss the filing deadline. IAF, Tab 1 at 17-18. He
      argues that, after learning of his nonselection, during a follow up telephone call
      with his interviewer, he was led to believe that the selectee was a veteran with
      qualifications similar to his own through the interviewer’s statements that it was
      “neck and neck” between the appellant and the selectee on qualifications and if it
      were a race, it was a “classic photo finish.” Id. at 14-15, 17. Thus, the appellant
      contends that it was not until December 18, 2015, when he became aware that the

      4
       The Board may choose to follow nonprecedential decisions of the Federal Circuit if, as
      here, it finds the reasoning persuasive. See, e.g., Erlendson v. Department of Justice,
      121 M.S.P.R. 441, ¶ 6 n.2 (2014).
                                                                                       6

      selectee was not a veteran, that he realized there was an “issue” with his
      nonselection. Id. at 15, 17-18.
¶11        The administrative judge considered such arguments, but found that they
      failed to establish that the appellant was induced or tricked by agency misconduct
      into allowing the filing deadline to pass. ID at 4-6. We discern no error with the
      administrative judge’s analysis. The Board has rejected similar arguments for
      equitable tolling. See Brown, 110 M.S.P.R. 381, ¶ 12 (finding that the fact that
      the appellant was unaware that his veterans’ preference rights had been violated
      until after the 60-day deadline had passed was not within the limited scope of
      reasons warranting equitable tolling); Mitchell v. Department of Commerce,
      106 M.S.P.R. 648, ¶ 10 (2007) (finding the appellant’s argument that he was not
      “aware of the injustice” in the agency’s selection procedure until after the 60-day
      filing deadline did not warrant equitable tolling), overruled on other grounds by
      Garcia, 110 M.S.P.R. 371, ¶¶ 8-13.
¶12        Accordingly, 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 U.S.
      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
                                                                                  7

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
