Tolling of Deadlines for Filing Veterans Preference Complaints

In Kirkendall v. Department of the Army, No. 05-3077, (Fed. Cir. Mar. 7, 2007), the Court of Appeals for the Federal Circuit issued a split, en banc decision that allowed “tolling” or extension of deadlines for complaints filed under the Veterans Employment Opportunities Act (VEOA). Additionally, the court found that veterans who allege violations of the Uniformed Services Employment and Reemployment Rights Act (USERRA) are entitled to a hearing by the Merit Systems Protection Board (MSPB).

In general, the VEOA grants veterans points on selection lists and other advantages when applying for federal employment. The USERRA allows for veterans to sue any employer that has discriminated against them due to their veteran status.

John E. Kirkendall, a 100 percent disabled veteran, applied for a position as Supervisory Equipment Specialist (Aircraft) with the Department of the Army. Kirkendall’s service and disability entitled him to a 10-point preference. On January 5, 2000, Kirkendall discovered that the Army did not select him for the position. Kirkendall filed several complaints against the Army contesting his nonselection, but the Army did not change its employment decision. On April 29, 2001, Kirkendall filed a formal complaint with the Veterans’ Employment and Training Services (VETS) of the Department of Labor, the office responsible for investigating alleged violations of VEOA. On November 29, 2001, VETS rejected Kirkendall’s complaint because it was untimely.

If a veteran suspects that a federal employer has violated the VEOA preference regulations, he or she must file a complaint with VETS within 60 days of the alleged violation. 5 U.S.C. 3330a(a)(2)(A). After the filing a complaint, VETS will investigate and make a determination on whether the agency violated the VEOA. Congress granted VETS 60 days to make a decision. If the veteran is not satisfied with the VETS decision, he or she may appeal the VETS decision to the MSPB under two situations. First, if VETS does not issue a decision within 60 days of the complaint, the veteran may file an appeal anytime after the 61st day. However, if VETS issues a decision, the veteran must file an appeal within 15 days after receiving the decision.

If the description of the VEOA deadlines was confusing to you, you are not alone. In the Kirkendall opinion, the court recognized that not all veterans would be aware of the VEOA or understand the deadlines for filing a VEOA complaint. The court also found it was relevant that Kirkendall did not have the benefit of legal representation. The court concluded that even though Kirkendall missed both the 60-day deadline to file a complaint with VETS and the 15-day deadline to appeal the VETS decision with the MSPB, his appeal with the MSPB would be reinstated for a decision on the merits.

In the Kirkendall opinion, the court recognized that when Congress enacted the VEOA, it was “an expression of gratitude by the federal government to the men and women who have risked their lives in defense of the United States” and that it “should be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.” Although the court allowed for the possibility of excusing deadlines under the VEOA, the court did not specifically identify situations when the VEOA deadlines would be tolled.

Because of this continuing ambiguity, veterans should familiarize themselves with the protections granted to them. If you are a veteran and suspect (1) a federal employer has failed to afford you the requisite preference under the VEOA or (2) any employer has discriminated against you based on your veteran status under the USERRA, you should contact an attorney with knowledge of these complex laws.

This article also appears in FEDweek ( www.fedweek.com), a weekly newsletter for federal employees.