UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA LECH, DOCKET NUMBER
Appellant, DE-1221-17-0038-W-1
v.
DEPARTMENT OF VETERANS DATE: May 17, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Vanessa Lech, Raeford, North Carolina, pro se.
Scott MacMillan, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact ;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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.
BACKGROUND
¶2 The appellant was employed as a Social Worker with the agency. Initial
Appeal File (IAF), Tab 14, Initial Decision (ID) at 2. She alleged below that,
beginning in November 2014, she reported supervisory misconduct and safety
concerns to various agency personnel and others. IAF, Tab 6 at 11, Tab 11 at 4-5.
She also alleged that she engaged in protected activities, such as filing an equal
employment opportunity (EEO) complaint and a grievance. IAF, Tab 6 at 11,
Tab 11 at 4-6. In April 2015, she filed complaint with the Office of Special
Counsel (OSC), alleging that the agency retaliated against her for these
disclosures and activities. IAF, Tab 6 at 11-15, Tab 9 at 3, Tab 11 at 5-7.
¶3 By letter dated August 31, 2015, OSC closed its investigation into the
appellant’s complaint and advised her that she may have the right to seek
corrective action with the Board. IAF, Tab 1 at 4. The letter stated that the
appellant could file a request for corrective action with the Board within 65 days
after the date of the letter. Id.
3
¶4 On October 23, 2016, the appellant filed this IRA appeal with the Board.
IAF, Tab 1. Without holding the appellant’s requested hearing, the administrative
judge dismissed the appeal as untimely filed. Id. at 2; ID at 2, 8.
¶5 The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 If OSC notifies an employee that its investigation into her allegations has
been terminated, the employee may seek corrective action from the Board through
an IRA appeal “no more than 60 days have elapsed since notification was
provided to such employee.” 5 U.S.C. § 1214(a)(3)(A)(ii). The Board’s
implementing regulations provide that an appellant must file an IRA appeal
within 65 days of the date that OSC issues the close-out letter or, if the letter is
received more than 5 days after its issuance, within 60 days of receipt. 5 C.F.R.
§ 1209.5(a)(1).
¶7 The appellant alleged that OSC’s “notification was not sent directly to [her]
from OSC during the 65 day timeline.” IAF, Tab 13 at 4. She asserted that OSC
sent the close-out letter to her former lawyer, and that he “did not provide [her]
with any explanation of what the OSC letter meant.” Id. (emphasis in original).
She stated that she “eventually fired this lawyer” for failing to communicate with
her. Id. However, as the administrative judge noted, the appellant failed to state
when she personally received the OSC termination letter. Id.; PFR File, Tab 1
at 13; ID at 5.
¶8 In Goode v. Department of the Navy, 93 M.S.P.R. 122, ¶¶ 3, 5 (2002), the
Board considered the case of an appellant who similarly asserted that OSC’s
termination letter was sent to his attorney rather than himself. However, because
the appellant failed to state when he received the letter, the Board found that the
appellant’s IRA appeal was due within 65 days after OSC issued its termination
letter. Id., ¶ 5.
4
¶9 Because the appellant here has failed to state when she personally received
the OSC termination letter, we find that she was required to file her IRA appeal
by November 4, 2015. 2 See id.; see also Pacilli v. Department of Veterans
Affairs, 113 M.S.P.R. 526, ¶ 9 (finding that, because the appellant failed to allege
that she did not receive OSC’s termination letter within 5 days of its issuance, she
was required to file her IRA appeal within 65 days of its issuance), aff’d per
curiam, 404 F. App’x 466 (Fed. Cir. 2010); ID at 5; PFR File, Tab 1 at 13. Thus,
she filed her Board appeal almost 1 year late.
¶10 Unlike some other filing deadlines with the Board, the deadline for filing an
IRA appeal may not be waived for good cause shown because there is no statutory
mechanism for doing so. Heimberger v. Department of Commerce, 121 M.S.P.R.
10, ¶ 9 (2014). However, the filing deadline might be subject to equitable tolling,
under which the filing period is suspended for equitable reasons, such as when the
complainant has been induced or tricked by her adversary’s misconduct into
allowing the deadline to pass. Id., ¶ 10. Equitable tolling is a rare remedy that is
to be applied in unusual circumstances and generally requires a showing that the
litigant has been pursuing her rights diligently and some extraordinary
circumstances stood in her way. Id.
¶11 We agree with the administrative judge’s finding that the appellant’s claims
below that her attorney’s alleged poor representation , and OSC’s alleged refusal
to provide her with guidance, did not warrant tolling the filing deadline.
ID at 5-8. On review, she provides additional allegations and documentation to
support her claim of poor representation. According to the appellant, her attorney
did not “check his mailbox” for 7 days after the agency mailed him notification of
the appellant’s right to request a hearing before the Equal Employment
2
Applying a 5-day mailing time presumption, the administrative judge found that the
appellant was required to file her IRA appeal by November 9, 2015. ID at 5. However,
the Board’s regulation already applies a 5-day mailing time presumption to the 60-day
statutory deadline for filing an IRA appeal following the issuance of an OSC
termination letter. 5 C.F.R. § 1209.5(a)(1); see 5 U.S.C. § 1214(a)(3)(A)(ii).
5
Opportunity Commission on her EEO complaint. PFR File, Tab 1 at 4 -5, 15-16.
Even if we were to consider this new argument and evidence on review, it
evidences, at most, “garden variety . . . excusable neglect” that is insufficient to
toll the deadline. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)
(denying the equitable tolling of a deadline when the petitioner filed an untimely
district court complaint because of his attorney’s absence from his office when
notice was received); Pacilli, 113 M.S.P.R. 526, ¶¶ 10-11 (denying equitable
tolling despite the appellant’s claim that her former attorney had problems with
alcohol and depression, was disbarred, and was under criminal investigation,
because the appellant did not make any claim that her former attorney thwarted
her efforts to file a timely IRA appeal); see also Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (explaining that the Board 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 availabl e despite the party’s
due diligence).
¶12 The appellant also clarifies that she is alleging that an OSC attorney would
not discuss her complaint following the close-out letter, not before, as the
administrative judge stated in the initial decision. ID at 7; PFR File, Tab 1 at 4,
13. She further states, apparently in response the administrative judge’s finding
that she could have attempted to obtain information regarding her rights on the
Board’s website, that she “look[ed] at the [Board’s] website at one point and []
was overwhelmed and had zero idea what [the Board] was or what [she] was
supposed to do.” ID at 7-8; PFR File, Tab 1 at 13; IAF, Tab 5 at 3. However, the
appellant has not explained how OSC or the Board’s website discouraged or
hindered her from filing an appeal. Pacilli, 113 M.S.P.R. 526, ¶¶ 10-11
(declining to apply equitable tolling when an appellant alleged that OSC
represented that it would “rule” in her favor and instructed her not to file a Board
appeal).
6
¶13 The appellant also alleges on review that she suffered from a work-related
medical condition, which hindered her ability to represent herself “110%,” and
that she is financially disadvantaged as compared to the agency. PFR File, Tab 1
at 13-17. In support of these claims, she attaches documents that predate the
initial decision. Id. at 9-12. The appellant does not explain why she did not
present these arguments or documents below, and we decline to consider them on
review. See Banks, 4 M.S.P.R. at 271. Accordingly, we dismiss this IRA appeal
as untimely filed. 3
¶14 Finally, the appellant has requested that her “name and all identifying
information about” her “be excluded from any public file(s) regarding this
matter.” PFR File, Tab 1 at 18. A litigant seeking anonymity before the Board
must present evidence establishing that harm is likely, not mere ly possible, if her
name is disclosed. Ortiz v. Department of Justice, 103 M.S.P.R. 621, ¶ 10
(2006). Here, the appellant has failed to indicate why she is requesting to
proceed anonymously, much less present evidence establishing that harm would
result otherwise. Accordingly, her request is denied.
3
When jurisdiction may be lacking but the record is sufficiently developed on the
timeliness issue, an administrative judge may, in an appropriate case, assume argu endo
that an appeal presents a matter within the Board’s jurisdiction and dispose of it on
timeliness grounds. Hudson v. Office of Personnel Management, 114 M.S.P.R. 669, ¶ 7
(2010). We agree with the administrative judge that this is such a case. ID at 1 -2 n.1;
IAF, Tab 6 at 11, 13, 17-21; see Salerno v. Department of the Interior, 123 M.S.P.R.
230, ¶ 5 (2016) (setting forth the appellant’s jurisdictional burden in an IRA appeal,
including the exhaustion requirement). Thus, we have not considered the appellant’s
evidence and argument on review regarding whether she exhausted with OSC her claim
that the agency’s retaliatory harassment forced her to resign. PFR File, Tab 1 at 7-8,
14.
7
NOTICE OF APPEAL RIGHTS 4
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.
(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 th e 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:
4
Since the issuance of the initial decision in this matter, the Board may hav e updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
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
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
9
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:
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
10
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. 5 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
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.
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.