Alexander Fleming v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALEXANDER FLEMING, III, DOCKET NUMBER
Appellant, SF-0714-22-0218-I-1
v.
DEPARTMENT OF VETERANS DATE: February 13, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Pauletta Johnson, Seattle, Washington, for the appellant.
Mandeev Singh Brar, Esquire, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which dismissed his appeal as untimely filed by approximately 2 years. For the
reasons discussed below, we GRANT the appellant’s petition for review,
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On February 10, 2022, the appellant filed an appeal challenging his
February 3, 2020 removal, taken under the authority of 38 U.S.C. § 714.
Initial Appeal File (IAF), Tab 1. He alleged in his initial appeal, among other
things, that the agency failed to accommodate his disability. Id. at 6.
The administrative judge issued an acknowledgment order, which advised the
appellant that the Board may lack jurisdiction over the appeal beca use
he appeared to have elected his remedy to file a grievance concerning the appeal
and, further, that the appeal appeared to be untimely pursuant to the
10-business-day deadline contained in 38 U.S.C. § 714(c)(4)(B).
IAF, Tab 2 at 2-5. The order directed the appellant to file argument and evidence
establishing that the appeal was timely filed or that equitable tolling should
apply. Id. at 3-6. It further directed the appellant to file argument and evidence
regarding the jurisdictional question. Id. at 2-3. The appellant did not file a
response. After the agency moved to dismiss the appeal on timeliness grounds,
the administrative judge issued a second order giving the appellant additional
time to file a response addressing jurisdiction and timeliness. IAF, Tabs 5-6.
The appellant filed a reply asserting that he did not respond to the
acknowledgment order because he was on a jobsite and lacked reliable internet
access. IAF, Tab 7 at 3. He made arguments related to the merits of his removal
but he did not address the timeliness of his initial appeal and he did not provide
additional information relating to his grievance. Id. The administrative judge
then issued a third order affording the appellant an opportunity to file evidence
related to the timeliness of his appeal. IAF, Tab 8. The appellant did not file a
response.
3
¶3 The administrative judge issued an initial decision dismissing the appeal as
untimely filed by 2 years. IAF, Tab 9, Initial Decision at 3-5. The administrative
judge explained that the filing deadline for appealing actions taken pursuant to
38 U.S.C. § 714 is 10 business days, that the statutory filing deadline c ould not be
waived for good cause, and that, even if equitable tolling could apply to the
deadline, the appellant failed to establish that it should apply because he provided
no justification for his delayed filing. Id. The appellant has filed a petition for
review, wherein he again argues the merits of the removal action. Petition for
Review (PFR) File, Tab 1 at 5. The agency has filed a response in opposition.
PFR File, Tab 3.
¶4 Since the issuance of the initial decision in this case, the Board has clarified
the filing deadlines in connection with 38 U.S.C. § 714 actions, particularly in
cases such as this, wherein the appellant has raised a claim of discrimination .
The 10-business-day time limit set forth in 38 U.S.C. § 714 does not apply if
an appellant alleges that the appealable action was taken as the result of unlawful
discrimination, i.e., a mixed case. If an individual covered by 38 U.S.C. § 714files a mixed-case appeal after filing a formal discrimination complaint with the
agency, the time limits are governed by 5 U.S.C. § 7702 and the Board’s
implementing regulations. Wilson v. Department of Veterans Affairs,
2022 MSPB 7, ¶ 25. If the appellant has not filed a formal discrimination
complaint with the agency and raises his discrimination claim for the first time
with the Board, an appeal is due 30 days after the effective date of the agency’s
action or 30 days after the date of the appellant’s receipt of the agency’s decision,
whichever is later. Davis v. Department of Veterans Affairs, 2022 MSPB 45,
¶¶ 17-19; 5 C.F.R. § 1201.154(a). These deadlines may be waived for good cause
shown. 5 C.F.R. § 1201.22(c); see Moorman v. Department of the Army,
68 M.S.P.R. 60, 62-63 (1995) (setting forth the factors to be considered by the
Board in determining whether the appellant established good cause for a delayed
filing), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
4
¶5 There is insufficient information in the record to determine which deadline
should apply to this appeal. Although the administrative judge advised the
appellant that his appeal appeared to be untimely pursuant to the 10-business-day
deadline set forth in 38 U.S.C. § 714, she does not appear to have acknowledged
his discrimination claim and she did not identify the deadlines set forth in Wilson
and Davis, as those decisions had not yet been issued. IAF, Tabs 2, 6, 8.
The administrative judge’s statement that the filing deadline could not be waived
for good cause shown is incorrect in light of Wilson and Davis. IAF, Tab 2 at 4.
We therefore find that the appellant has not been put on clear notice of the precise
timeliness issue and the standard to waive an untimely filing, and we must
remand this appeal for the administrative judge to provide the required notice.
See Schorr v. Department of the Navy, 79 M.S.P.R. 594, ¶¶ 12-13 (1998) (stating
that the appellant “cannot be expected to fight a fog of generality” and that
he must be put on clear notice of the timeliness issue and given a full opportunity
to litigate it) (quoting Hamilton v. Merit Systems Protection Board, 75 F.3d 639,
646 (Fed. Cir. 1996)).
¶6 We note that the record is not developed as to the question of whether the
Board lacks jurisdiction over this appeal based on the appellant’s filing of a
grievance. IAF, Tab 1 at 5, Tab 2 at 2-3. Specifically, the record contains
insufficient information as to the precise subject of the grievance. Accordingly,
we do not reach the jurisdictional question here.
5
ORDER
¶7 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.