UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID M. HENDY,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-3330-18-0110-I-1

DATE: May 3, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

David M. Hendy, Chicago, Illinois, pro se.

Zane Perry Schmeeckle, Esquire, Kansas City, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman

 Raymond A. Limon, Vice Chairman

FINAL ORDER

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 in the following circumstances: 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

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. However, for the reasons

discussed below, we VACATE the initial decision, DISMISS the appeal as

untimely filed, and FORWARD the appellant’s additional, unadjudicated VEOA

claim to the regional office for docketing as a new VEOA appeal.

BACKGROUND

At an unspecified time, the appellant filed a VEOA complaint with the

Department of Labor (DOL), which designated his complaint as claim number

IL-2018-001-VPH. Initial Appeal File (IAF), Tab 1 at 4-5. In a letter

dated November 14, 2017, a DOL investigator informed the appellant that his

veterans’ preference complaint had been closed because it was not filed within

the statutory deadline of 60 days from the date of the alleged violation. Id.

On December 14, 2017, the appellant filed this Board appeal seeking corrective

action under VEOA, and he requested a hearing. Id. at 1-3.

The administrative judge apprised the appellant of the elements and

burdens of proving jurisdiction, exhaustion, and timeliness regarding a VEOA

appeal, and she ordered the parties to respond on those issues. IAF, Tab 3.

Regarding the timeliness of the Board appeal, she informed the appellant that a

VEOA appeal must be filed with the Board no later than 15 calendar days after

the date on which he received written notice from the Secretary of Labor that

DOL had not resolved his complaint. Id. at 5. She further explained that VEOA
3

filing deadlines may not be waived for good cause, but they are subject to

equitable tolling. Id. She ordered the appellant to file a statement with

supporting documentation on the timeliness issue, including whether the filing

deadlines should be equitably tolled. Id. at 6. The parties responded. IAF, Tabs

4, 9-14.

Without holding the requested hearing, the administrative judge issued an

initial decision denying the appellant’s request for corrective action under VEOA.

IAF, Tab 15, Initial Decision (ID) at 1, 6. Specifically, she found that the

appellant failed to nonfrivolously allege that his DOL complaint was filed within

the 60-day statutory time limit or to allege any basis for equitably tolling the

filing deadline. ID at 4-6. She further found that the appellant failed to

nonfrivolously allege a VEOA claim. ID at 6 n.5.

The appellant has filed a petition for review, and he has included

supplemental documentation. Petition for Review (PFR) File, Tabs 7-32. 2

The agency has filed a response, PFR File, Tab 35, to which the appellant has

replied, PFR File, Tab 36.3

2

 The appellant’s initial petition for review was untimely filed by 1 day. PFR File,

Tab 1, Tab 2 at 2. He has filed a motion to waive the time limit for filing a petition for

review based on illness. PFR File, Tab 34. We find good cause to grant his motion.

See Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998) (explaining that the

Board will find good cause for waiver of its filing time limits when a party

demonstrates that he suffered from an illness that affected his ability to file on time);

see also 5 C.F.R. § 1201.114(g). We further find that the agency has not alleged or

shown that it would be prejudiced by a waiver of the time limit. See Moorman v.

Department of the Army, 68 M.S.P.R. 60, 63 (1995) (explaining that, if good cause has

been demonstrated, then the Board determines whether the agency has shown that it

would be prejudiced by a waiver of the time limit), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)

(Table).

3

 The agency has filed a motion for leave to file an additional pleading addressing the

appellant’s allegedly new claims raised in his reply. PFR File, Tab 37; see 5 C.F.R.

§ 1201.114(a)(5). Alternatively, the agency requests the Board to strike such claims for

failure to comply with 5 C.F.R. § 1201.114(a)(4). PFR File, Tab 37. We deny the

agency’s alternative request because the appellant’s reply elaborates on his claim

concerning a new DOL complaint (IL-2018-008-VPH) that he previously set forth in his

petition for review. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11, 18-19; cf. Elder v.

Department of the Air Force, 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider
4

DISCUSSION OF ARGUMENTS ON REVIEW

For the following reasons, we vacate the initial decision denying the

appellant’s request for corrective action under VEOA, and we dismiss the appeal

as untimely filed. See, e.g., Williamson v. U.S. Postal Service, 106 M.S.P.R. 502,

¶¶ 6-8 (2007) (addressing the merits of the appellant’s request for corrective

action after first determining that his VEOA appeal was timely filed). Because it

is unclear from the existing record what alleged veterans’ preference violations

the appellant raised before DOL as part of claim number IL-2018-001-VPH and

when he filed such complaint, we are unable to determine whether his DOL

complaint was timely filed within the 60-day time limit set forth at 5 U.S.C.

§ 3330a(a)(2)(A). See Gingery v. Office of Personnel Management, 119 M.S.P.R.

43, ¶ 16 (2012) (explaining that the statute requires that the complaint be filed

with DOL within 60 days after the date of the alleged violation of veterans’

preference rights). In particular, although the appellant alleged that he called the

DOL hotline and was sent a link to file a claim on August 28, 2017, he did not

explain when he filed a complaint. IAF, Tab 4 at 28. Further, the appellant

provided evidence of a DOL complaint dated October 20, 2017, in which he

alleged that he was denied reinstatement on October 16, 2017, in violation of his

veterans’ preference rights. 4 IAF, Tab 14 at 9-19. In addition, the appellant

submitted a copy of another DOL closeout letter dated January 19, 2018,

the agency’s argument that it raised for the first time in its reply). Further, we deny the

agency’s motion because we have not considered the appellant’s allegations and

evidence concerning the new DOL complaint (IL-2018-008-VPH), which is the subject

of a separate VEOA appeal docketed as Hendy v. Department of Veterans Affairs,

MSPB Docket No. CH-3330-18-0514-I-1. PFR File, Tab 7 at 25, Tab 36 at 7, 9-11,

18-19; see Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)

(observing that the Board generally will not 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); Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980) (holding that the Board generally will not

grant a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision).

4

 Although part of the DOL complaint is also dated October 25, 2017, we need not

resolve this discrepancy. IAF, Tab 14 at 9-13.
5

concerning case number IL-2018-002-VPH. IAF, Tab 11 at 22-23. The letter

indicates that, on November 21, 2017, the appellant timely filed a VEOA

complaint with DOL regarding his alleged nonselection for three positions. Id.

The administrative judge did not address either the DOL complaint

dated October 20, 2017, or the DOL close-out letter dated January 19, 2018.

An appellant has the burden of proving by preponderant evidence the

timeliness of his Board appeal. 5 C.F.R. § 1201.57(c)(2). Pursuant to 5 U.S.C.

§ 3330a(d)(1)(B), a complainant must file a VEOA appeal with the Board within

15 days after he receives written notification from DOL that his VEOA complaint

has not been resolved. See Gingery v. Department of the Treasury, 110 M.S.P.R.

83, ¶ 23 (2008). Failure to meet this 15-day statutory filing deadline will result

in the dismissal of the VEOA appeal on timeliness grounds unless the appellant

can establish a basis for equitable tolling. See id., ¶¶ 24-25 (remanding the

VEOA appeal for the administrative judge to provide the parties an opportunity to

address whether the 15-day filing deadline should be equitably tolled); see also

Williamson, 106 M.S.P.R. 502, ¶ 6 (explaining that the 15-day filing deadline

cannot be waived and that the Board must dismiss an appeal filed beyond that

deadline, but also that the deadline is subject to equitable tolling).

As an initial matter, we find that the appellant has received clear notice of

the precise timeliness issue in this appeal and a full and fair opportunity to

litigate it. See Wright v. Department of Transportation, 99 M.S.P.R. 112,

¶¶ 12-13 (2005) (finding that the appellant was entitled to clear notice of the

precise timeliness issue in the appeal and a full and fair opportunity to litigate it).

IAF, Tab 3 at 5-6, Tab 9 at 11-12

After reviewing the parties’ evidence and argument on the timeliness issue,

we find that the appellant has failed to prove that he timely filed his VEOA

appeal within the 15-day statutory deadline. The appellant’s submission on

review of an email dated November 15, 2017, establishes his receipt of the DOL
6

close-out letter dated November 14, 2017. 5 PFR File, Tab 14 at 24-26. In his

email to the DOL investigator, the appellant states that he received the letter in

person on November 15, 2017, and that he contests the dismissal of his VEOA

complaint based on the 60-day statutory deadline. Id. Moreover, we find that the

DOL close-out letter constitutes sufficient written notice to trigger the start of the

15-day filing period because the letter clearly informed the appellant that his case

had been closed. IAF, Tab 1 at 4-5; see 5 U.S.C. § 3330a(c)(2), (d)(1)(B);

see also Shaver v. Department of the Air Force, 106 M.S.P.R. 601, ¶ 4 n.2 (2007)

(stating that the 15-day deadline to file a Board appeal does not begin to run until

the complainant receives notice, in writing, that DOL’s efforts to investigate and

resolve the complaint did not result in resolution of the complaint). Thus, the

appellant untimely filed his Board appeal by facsimile on December 14, 2017,

beyond the 15-day statutory deadline. IAF, Tab 1; see 5 C.F.R. § 1201.4(l).

Moreover, we find that the appellant has not established any of the limited

bases for equitably tolling the deadline. See Gingery, 110 M.S.P.R. 83, ¶ 24.

The DOL close-out letter notified the appellant that he had the right to file a

Board appeal within 15 calendar days from the date of his receipt of the letter.

IAF, Tab 1 at 4-5. To the extent the appellant argues that his medical conditions

warrant equitable tolling, we find that this does not provide a basis for applying

equitable tolling in this matter. PFR File, Tab 7 at 18-19; see Garcia v.

Department of Agriculture, 110 M.S.P.R. 371, ¶¶ 5-6 (2009) (discerning no error

in the administrative judge’s determination that the appellant’s medical

conditions did not justify applying equitable tolling to a VEOA filing deadline).

Accordingly, we dismiss this VEOA appeal as untimely filed. 6

Further, we forward the appellant’s additional, unadjudicated VEOA claim

(based on a DOL close-out letter dated January 19, 2018, concerning case number

5

 The parties’ remaining submissions on review do not address the dispositive

timeliness issue. PFR File, Tabs 7-32, 35-36.

6

 We deny the appellant’s request for a stay to return to work. PFR File, Tab 7 at 27.
7

IL-2018-002-VPH) to the regional office for docketing as a new VEOA appeal. 7

IAF, Tab 11 at 22-23.

NOTICE OF APPEAL RIGHTS8

This Final Order constitutes the Board’s final decision in this matter.

5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C.

§ 7703(a)(1). By statute, the nature of your claims determines the time limit for

seeking such review and the appropriate forum with which to file. 5 U.S.C.

§ 7703(b). Although we offer the following summary of available appeal rights,

the Merit Systems Protection Board does not provide legal advice on which

option is most appropriate for your situation and the rights described below do

not represent a statement of how courts will rule regarding which cases fall within

their jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

7

 Although we make no jurisdictional or timeliness findings concerning the appellant’s

new VEOA appeal, we acknowledge that he filed the DOL close-out letter

on January 25, 2018, in response to the administrative judge’s jurisdictional order.

IAF, Tab 11 at 22-23; see Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96

(1990) (explaining that the U.S. Supreme Court had allowed equitable tolling when the

complainant “has actively pursued his judicial remedies by filing a defective pleading

during the statutory period”).

8

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter. 
8

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the

U.S. Court of Appeals for the Federal Circuit, which must be received by the

court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
9

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 
10

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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
11

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.