                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CHARLES W. HECKMAN,                             DOCKET NUMBER
                  Appellant,                         SF-3330-11-0568-I-5

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: February 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Charles W. Heckman, Olympia, Washington, pro se.

           Karen D. Glasgow, Esquire, San Francisco, California, 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
     dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal in
     part for lack of jurisdiction and in part as untimely. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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. We MODIFY
     the initial decision as to the dispositions of portions of the appeal that did not
     satisfy the timeliness requirements of 5 U.S.C. § 3330a.            Except as expressly
     modified by this Final Order, we AFFIRM the initial decision.
¶2         The appellant is a preference-eligible veteran.          I-1, Initial Appeal File
     (IAF), Tabs 5, 8; I-5, IAF Tab 9 at 82. 2 On May 7, 2011, he filed this VEOA
     appeal and requested a hearing regarding alleged veterans’ preference violations
     in 42 nonselections for appointment between 2005 and 2007. 3 I-1, IAF, Tab 1 at
     3, 6, 19, Tab 9 at 6-7.      There are six associated Department of Labor (DOL)
     complaints:    10-WA-2006-007-VPH, WA-2007-009-VPH, WA-2007-010-VPH,


     2
       Th is appeal was dismissed without prejudice several times and then refiled, resulting
     in several initial appeal files, each with different docket numbers. The citations in th is
     order refer to the various initial appeal files by the last two characters of their docket
     numbers (from I-1 through I-5).
     3
       The appellant previously filed two VEOA appeals with the Board challenging 57 other
     nonselections for appointment. I-1, IAF, Tab 1 at 14-15; Heckman v. Department of the
     Interior, 109 M.S.P.R. 133 (2008), overruled in part by Garcia v. Department of
     Agriculture, 110 M.S.P.R. 371 (2009); Heckman v. Department of the Interior,
     106 M.S.P.R. 210 (2007).        As the administrative judge explained, those other
     nonselections are not at issue in the instant appeal. I-5, IAF, Tab 15, Initial Decision
     (ID) at 2.
                                                                                        3

     WA-2007-001-VPH, WA-2007-002-VPH, and WA-2011-0014-VPH.                    I-1, IAF,
     Tab 1 at 10-11, Tab 8 at 6-8; I-5, IAF, Tab 9 at 24-25.
¶3         The appeal was dismissed without prejudice and refiled several times
     pending the outcome of litigation in federal court. I-1, IAF, Tab 12; I-2, IAF,
     Tab 5; I-3, IAF, Tab 4; I-4, IAF, Tab 6. Finally, after affording the appellant
     proper notice on the issues, the administrative judge dismissed the appeal in part
     for lack of jurisdiction and in part as untimely. I-1, IAF, Tab 2 at 2-3, 1-5 IAF,
     Tab 12; ID.     Specifically, the administrative judge found that the Board lacks
     jurisdiction over the alleged veterans’ preference violations in complaints
     WA-2007-001 and WA-2007-002 because the appellant failed to show that he
     received written notification of the results of DOL’s investigation or that he
     notified DOL in writing of his intention to file a Board appeal concerning those
     complaints. 4    ID at 4-5.      Regarding complaint WA-2011-0014-VPH, the
     administrative judge found that the complaint to DOL was untimely and that there
     was no basis to toll the filing deadline. ID at 6-7. Regarding the three remaining
     complaints, 10-WA-2006-007-VPH, WA-2007-009-VPH, and WA-2007-010-
     VPH, the administrative judge found that the appellant’s Board appeal was
     untimely, and that there was no basis to toll the filing deadline. ID at 7-8.
¶4         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, the agency has filed a response, id., Tab 3, and the appellant has filed
     a reply to the agency’s response, id., Tab 5.

     Exhaustion
¶5         To establish jurisdiction over a VEOA appeal, an appellant must, among
     other things, show that he exhausted his administrative remedies with DOL.
     Lazaro v. Department of Veterans Affairs, 666 F.3d 1316, 1320 (Fed. Cir. 2012);
     Becker v. Department of Veterans Affairs, 115 M.S.P.R. 409, ¶ 5 (2010).           An


     4
       The record does not reveal which vacancy announcements or alleged veterans’
     preference violations were at issue in which complaints.
                                                                                        4

     appellant may satisfy this exhaustion requirement by showing that he filed a
     VEOA complaint with the Secretary of Labor and either (1) the Secretary sent
     him written notification that efforts to resolve the complaint were unsuccessful,
     or (2) more than 60 days have elapsed since the complaint was filed, and the
     appellant provides the Secretary written notification of his intention to file a
     Board appeal. 5 U.S.C. § 3330a(d); 5 C.F.R. § 1208.21(a).
¶6        The appellant does not appear to contest the administrative judge’s finding
     that, concerning complaints WA-2007-001-VPH and WA-2007-002-VPH, he
     neither received written notice from DOL that its efforts to resolve the complaints
     were unsuccessful nor notified DOL in writing of his intention to file a Board
     appeal concerning these matters.     ID at 4-5. For the reasons explained in the
     initial decision, we agree with the administrative judge that the appellant failed to
     show that he exhausted his administrative remedies with DOL and that the Board
     therefore lacks jurisdiction over the matters encompassed in complaints
     WA-2007-001-VPH and WA-2007-002-VPH.                ID at 4-5; see Burroughs v.
     Department of the Army, 116 M.S.P.R. 292, ¶ 10 (2011).

     Timeliness
¶7        A complaint under 5 U.S.C. § 3330a must be brought within 60 days of the
     alleged veterans’ preference violation. 5 U.S.C. § 3330a(a)(2)(A). In addition, a
     Board appeal under 5 U.S.C. § 3330a(d)(1) must be filed within 15 days after the
     complainant receives written notification from DOL that the complaint could not
     be resolved.   5 U.S.C. § 3330a(d)(1)(B).    Failure to meet the 60-day statutory
     deadline for filing a DOL complaint will result in a denial of corrective action
     unless the appellant can establish a basis for equitably tolling the deadline. See
     Gingery v. Office of Personnel Management, 119 M.S.P.R. 43, ¶¶ 15-19 (2012).
     Failure to meet the 15-day statutory deadline for filing a Board appeal will result
     in a dismissal on timeliness grounds unless the appellant can establish a basis for
     equitably tolling the deadline.     See Gingery v. Department of the Treasury,
     110 M.S.P.R. 83, ¶¶ 22-25 (2008).
                                                                                        5

¶8         The   administrative   judge   found   that   the   appellant   exhausted   his
      administrative remedies as to complaints WA-2011-0014-VPH, 10-WA-2006-
      007-VPH, WA-2007-009-VPH, and WA-2007-010-VPH. ID at 4. We agree. The
      record contains copies of written notification to the appellant from DOL closing it
      investigation into these complaints. I-1, IAF, Tab 1 at 10-11, Tab 8 at 8; I-5,
      IAF, Tab 9 at 24-25.     Nevertheless, the administrative judge found that the
      appellant failed to meet one or the other of these statutory deadlines concerning
      each of these complaints. ID at 6-7. Again, we agree.
¶9         Regarding complaints 10-WA-2006-007-VPH, WA-2007-009-VPH, and
      WA-2007-010-VPH, the appellant received written notice from DOL under
      5 U.S.C. § 3330a(c)(2) on July 21, 2006, and August 2, 2007. I-1, IAF, Tab 8 at
      8; I-5, IAF, Tab 9 at 24-25. Applying the presumption that the appellant received
      these letters 5 days after they were mailed, see Cabarloc v. Department of
      Veterans Affairs, 110 M.S.P.R. 695, ¶ 7 (2009), we find that he filed this May 7,
      2011 appeal well beyond the 15-day statutory deadline. For the reasons explained
      in the initial decision, we agree with the administrative judge that the appellant
      has not established any of the limited bases for equitable tolling to apply to the
      matters encompassed in these complaints, such as having filed a timely but
      defective pleading or being tricked or induced by the agency into allowing the
      filing deadline to pass. ID at 7; see Roesel v. Peace Corps, 111 M.S.P.R. 366, ¶ 8
      (2009). Therefore, the administrative judge correctly dismissed these claims as
      untimely. ID at 6.
¶10        Regarding complaint WA-2011-0014-VPH, the appellant’s evidence and
      argument show that it pertained to an alleged veterans’ preference violation that
      occurred no later than 2007, but that he did not file the complaint until
      February 2011—at least 3 years after the alleged violation occurred, and well
      beyond the 60-day statutory deadline. I-1, IAF, Tab 1 at 5, 10, Tab 11 at 2. On
      that basis, DOL declined to investigate the complaint, and we agree with the
      administrative judge that this DOL complaint was untimely. ID at 6. We also
                                                                                        6

      agree, for the reasons explained in the initial decision, that the appellant has not
      established a basis for the Board to equitably toll the deadline. ID at 6-7.
¶11           Nevertheless, we must clarify the disposition of these claims. The initial
      decision states in one place that the appeal is dismissed as untimely, ID at 6, and
      in another place that corrective action is denied on the basis of untimeliness, ID
      at 8.      The correct disposition for the claims encompassed in complaint
      WA-2011-0014-VPH, which was filed with DOL outside the 60-day deadline in
      5 U.S.C. § 3330a(a)(2)(A), is that corrective action is denied.        See Gingery,
      119 M.S.P.R. 43, ¶ 19. The correct disposition for the claims encompassed in
      complaints 10-WA-2006-007-VPH, WA-2007-009-VPH, and WA-2007-010-VPH,
      which were untimely to the Board under 5 U.S.C. § 3330a(d)(1)(B), is that they
      are dismissed as untimely. See 5 C.F.R. § 1208.22.

      Arguments on Review
¶12           The appellant makes numerous arguments on review that provide no basis to
      disturb the initial decision. First, he argues that the Board lacks jurisdiction to
      dismiss the instant appeal until his pending litigation in federal court is
      completed.     PFR File, Tab 1 at 7.       Board jurisdiction, however, is not a
      prerequisite for dismissing an appeal on jurisdictional or timeliness grounds. The
      Board has found numerous times that it may dismiss an appeal as untimely filed
      without reaching the jurisdictional issue.    E.g., Heimberger v. Department of
      Commerce, 121 M.S.P.R. 10, ¶ 13 (2014); Persons v. U.S. Postal Service,
      75 M.S.P.R. 428, 431–33 (1997). To the extent that the appellant is arguing that
      this litigation should operate to toll the deadlines at issue, for the reasons
      discussed below, we disagree. Infra ¶ 15.
¶13           The appellant appears to argue that the Board should not have adjudicated
      his prior appeals because he has still not exhausted his administrative remedies as
      to the alleged veterans’ preference violations at issue in those appeals. PFR File,
      Tab 1 at 7-8. As the administrative judge explained, the instant appeal pertains
      only to the 42 alleged veterans’ preference violations that the appellant identified
                                                                                         7

      in his initial appeal filing. ID at 2; I-1, IAF, Tab 1 at 6. The Board has already
      issued final decisions on the appellant’s 57 other claims and notified him of his
      further review rights. Heckman, 109 M.S.P.R. 133, ¶ 30; Heckman, 106 M.S.P.R.
      210, ¶ 19. Regardless of whether the appellant believes that these decisions were
      correct, he has no further right of review before the Board.
¶14           The appellant also appears to argue that he did not file a DOL complaint in
      2011. PFR File, Tab 1 at 8, Tab 5 at 4, 8. Not only is this assertion belied by the
      information that the appellant provided in his initial appeal filing, I-1, IAF, Tab 1
      at 5, 10, he has not identified any documentary evidence to show otherwise. Nor
      does the appellant’s description of DOL’s alleged mishandling of his complaints
      and concealment of evidence shed any light on this matter or any other matter
      relevant to the material issues in this appeal. PFR File, Tab 1 at 8-10, Tab 5 at 5,
      8-10.
¶15           The appellant further argues that the administrative judge miscalculated the
      equitable tolling period.    PFR File, Tab 1 at 10-11, Tab 5 at 4, 10-11.        His
      arguments, however, appear to relate only to the alleged veterans’ preference
      violations that were the subject of other Board appeals and are not at issue in the
      instant appeal.     Id.   As explained above, supra ¶¶ 9-10, we agree with the
      administrative judge that the deadlines at issue should not be equitably tolled. In
      particular, the appellant has offered no evidence to show that he filed his 2008
      federal district court action within the applicable deadlines with respect to his
      2005 through 2007 nonselections for appointment or his receipt of the July 21,
      2006 and August 2, 2007 investigation closure notifications from DOL. I-1, IAF,
      Tab 10 at 8; see Sneed v. Shinseki, 737 F.3d 719, 729-30 (Fed. Cir. 2013) (for
      equitable tolling to apply, the entire period of the filing delay must be accounted
      for).
¶16           The appellant also identifies what he perceives as institutional problems
      with the Board’s authority, PFR File, Tab 1 at 12-13, as well as what he believes
      to be evidence of the Board’s bias against veterans in general and against him in
                                                                                           8

      particular, PFR File, Tab 1 at 13-31, Tab 5 at 13-16.           We have reviewed the
      appellant’s arguments, and we find that they provide no basis to disturb the initial
      decision.   To the extent that the appellant is claiming that the administrative
      judge in the instant appeal was biased, we find that he has not overcome the
      presumption       of    honesty   and   integrity   that   accompanies   administrative
      adjudicators. See Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386
      (1980). He has not shown that the administrative judge’s conduct during these
      proceedings evidenced “a deep-seated favoritism or antagonism that would make
      fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358,
      1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555
      (1994)).    This is especially so considering that the initial decision was based
      solely on documentary evidence and undisputed facts.
¶17        Finally, the appellant argues that the Board adjudicated one of his previous
      Uniformed Services Employment and Reemployment Rights Act of 1994 appeals
      improperly. PFR File, Tab 5 at 11-13. We find that this argument is irrelevant to
      the issues in the instant VEOA appeal.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.        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.
                                                                                  9

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
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.
