Joseph C. Payne v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSEPH C. PAYNE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2023-2204
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3443-21-0363-I-1.
______________________
Decided: July 16, 2024
______________________
J OSEPH C. P AYNE, Millsboro, DE, pro se.
STEPHEN F UNG, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before D YK, REYNA, and STOLL , Circuit Judges.
P ER CURIAM .
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PAYNE v. MSPB 2
Joseph Payne appeals a final decision of the Merit Sys-
tems Protection Board that dismissed his Uniformed Ser-
vices Employment and Reemployment Rights Act of 1994
(USERRA) claim as barred by the doctrine of laches. See
Payne v. U.S. Postal Serv., No. PH-3443-21-0363-I-1,
2023 WL 4359452 (M.S.P.B. July 5, 2023) (Board Deci-
sion). For the following reasons, we affirm.
BACKGROUND
Before and after Mr. Payne served in the U.S. Army—
most recently from January 2003 to June 2004—he worked
for the United States Postal Service (USPS). After
Mr. Payne’s honorable discharge from the U.S. Army in
June 2004, he returned to his position at the Fredericks-
burg, Virginia Post Office. In April 2008, he applied for a
position as a Vehicle Operations & Maintenance Assistant
(VOMA) with the USPS, but another individual was se-
lected.
On May 24, 2008, Mr. Payne filed a formal Equal Em-
ployment Opportunity (EEO) complaint with the USPS
EEO office. Although Mr. Payne asserted four claims in
his complaint, only one relates to this appeal: his non-se-
lection for the VOMA position with the USPS. S. Appx.1 9–
10, 57–64; Appellant’s Informal Br. at 3. Mr. Payne’s
USPS EEO complaint contended that his non-selection for
the VOMA position was discrimination based on religion,
age, and disability as well as retaliation for his prior EEO
activity. Mr. Payne argued that he was more senior and
experienced than the individual hired and, therefore, he
should have been selected for the VOMA position.
The USPS EEO office issued a Final Agency Decision
dismissing Mr. Payne’s complaint after finding that
1 S. Appx. refers to the Supplemental Appendix at-
tached to Appellee’s Informal Response Brief, ECF No. 28.
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PAYNE v. MSPB 3
Mr. Payne was not discriminated against when he was not
selected for the VOMA position.
Mr. Payne appealed the Final Agency Decision to the
EEO Commission’s Office of Federal Operations (OFO).
S. Appx. 9. The OFO affirmed the dismissal in 2009. Id.
On January 31, 2015, Mr. Payne retired from the
USPS. Id.
In 2021, Mr. Payne filed another EEO complaint with
the USPS related to his 2008 non-selection for the VOMA
position. Id. at 8. The USPS EEO office dismissed the com-
plaint based on the previous action. Id. None of the EEO
pleadings involved a USERRA or VEOA claim, and the
EEO office does not have jurisdiction over such claims. See
67 Fed. Reg. 31,827 (May 10, 2002) (delegating USERRA
and VEOA responsibilities from the Secretary of Labor to
the Assistant Secretary for Veterans’ Employment and
Training Services (DOL-VETS), and not the EEO offices).
Rather, such complaints must be filed in the first instance
with the Department of Labor. See 38 U.S.C. §§ 4322,
4324; 20 C.F.R. § 1002.288.
On September 21, 2021, Mr. Payne filed an appeal to
the Board challenging his non-selection for the VOMA po-
sition. The basis for this filing was unclear. After filing his
appeal, Mr. Payne continued to submit other pleadings and
papers purporting to address the substance of his appeal.
His hand-written filings were generally unresponsive and
illegible. The administrative judge (AJ) held a conference
to allow Mr. Payne to “better express his claims verbally.”
Id. at 9. Mr. Payne indicated he intended to raise claims
under the Veterans Employment Opportunities Act of 1998
(VEOA) and USERRA, and suggested that he had filed
complaints with the Department of Labor in November
2021, after he had filed his Board appeal.
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PAYNE v. MSPB 4
A complaint under VEOA must be filed with the Secre-
tary of Labor within 60 days of the alleged violation by the
agency, unless equitable tolling applies. 5 U.S.C.
§§ 3330(a)(1)(A), (a)(2)(A). Mr. Payne filed his complaint
with the Department of Labor in 2021. S. Appx. 9–10, 84.
The AJ issued an order to show cause regarding the VEOA
claim, giving Mr. Payne an opportunity to establish equi-
table tolling. The AJ subsequently dismissed the VEOA
claim as untimely because he determined that Mr. Payne
failed to establish a basis for equitable tolling. S. Appx. 10.
Mr. Payne’s case proceeded on the USERRA claim.
The USPS filed a motion to dismiss on the basis of
laches. Id. Mr. Payne’s nine submissions in response to
the Government’s motion failed to address the laches issue.
S. Appx. 10–11.
The USPS argued that: (1) of the individuals who pro-
vided affidavits in the 2008 EEO matter, all but one were
retired, terminated, or deceased; (2) diligence searches by
multiple individuals failed to turn up the hiring file for the
2008 non-selection; and (3) USPS was economically preju-
diced with a potential thirteen-year back pay liability.
S. Appx. 12.
The AJ concluded that Mr. Payne unreasonably de-
layed in raising his USERRA claim by waiting over thir-
teen years to litigate the issue. He also found prejudice to
the agency because of the potential unavailability of wit-
nesses and loss of documents. Based on this evidence, the
AJ granted the USPS’s motion and dismissed on the basis
of laches.
Mr. Payne petitioned for review of the AJ’s initial deci-
sion. The Board noted that, although Mr. Payne submitted
evidence with his petition, the documents did not provide a
basis to disturb the initial decision. Board Decision,
2023 WL 4359452, at *1 n.2. The Board denied the petition
for review and affirmed the initial decision. Id. at *1.
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PAYNE v. MSPB 5
Mr. Payne timely appeals. We have jurisdiction under
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The only issue on appeal is whether the Board erred in
dismissing Mr. Payne’s USERRA appeal for laches.2 Our
review of Board decisions “is limited under 5 U.S.C.
§ 7703(c).” Bennett v. Merit Sys. Prot. Bd., 635 F.3d 1215,
1218 (Fed. Cir. 2011). This court sets aside final Board de-
cisions that it finds to be “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Hornseth
v. Dep’t of the Navy, 916 F.3d 1369, 1373 (Fed. Cir. 2019).
We review the Board’s rulings on the issue of laches for
abuse of discretion and underlying factual findings for sub-
stantial evidence. Gray v. Merit Sys. Prot. Bd., 667 F.
App’x 769, 770 (Fed. Cir. 2016) (citing Nuss v. Off. of Pers.
Mgmt., 974 F.2d 1316, 1318 (Fed. Cir. 1992)); Jones
v. Merit Sys. Prot. Bd., 98 F.4th 1376, 1380 (Fed. Cir.
2024). Substantial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Jones, 98 F.4th at 1380 (quoting Consolidated
Edison v. NLRB, 305 U.S. 197, 229 (1938)).
To establish the affirmative defense of laches, the
party raising laches has the burden to show “two facts:
1) [the claimant] delayed filing suit for an unreasonable
and inexcusable length of time from the time he knew or
reasonably should have known of his claim against the
[agency]; and 2) the delay operated to the prejudice or
2 In his brief, Mr. Payne references only his
USERRA claim. We thus construe his appeal before us to
involve only that claim.
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PAYNE v. MSPB 6
injury of the [agency].” Poett v. Merit Sys. Prot. Bd.,
360 F.3d 1377, 1384 (Fed. Cir. 2004) (citation omitted).
There are two types of prejudice: (1) defense preju-
dice––the inability to mount a defense––which may include
loss of records, destruction of evidence, fading memories, or
unavailability of witnesses; and (2) economic prejudice—
the consequences, primarily monetary, to the agency
should the claimant prevail. Cornetta v. United States,
851 F.2d 1372, 1378 (Fed. Cir. 1998). A party raising the
affirmative defense of laches “has the burden to show that
it was prejudiced by a claimant’s tardiness in filing suit.”
Id. at 1380.
We conclude that the Board did not abuse its discretion
in determining that laches barred Mr. Payne’s USERRA
claim. Substantial evidence supports the Board’s finding
that Mr. Payne’s delay in bringing his USERRA claim was
both (1) unreasonable and inexcusable, and (2) prejudicial.
Although Mr. Payne presented arguments and evidence
below and on appeal, those arguments and evidence are
limited to the merits of his claims.
Mr. Payne was not selected for the VOMA position in
2008, yet he waited over thirteen years after to bring his
USERRA claim to the Board. Mr. Payne’s period of delay
is equivalent to the delay in Sleevi v. Merit Systems Protec-
tion Board, where we affirmed the Board’s dismissal of a
USERRA appeal based on laches because petitioner de-
layed thirteen years in bringing his claim. No. 2021-1447,
2021 WL 2879045, at *1 (Fed. Cir. July 9, 2021). Moreo-
ver, Mr. Payne does not argue that the Board incorrectly
decided or failed to account for any facts or failed to con-
sider important grounds. We conclude substantial evi-
dence supports the Board’s finding that Mr. Payne’s delay
was unreasonable and inexcusable.
We also find that substantial evidence supports the
Board’s determination that Mr. Payne’s delay
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PAYNE v. MSPB 7
unreasonably prejudiced the USPS. The USPS presented
evidence that relevant witnesses were potentially unavail-
able and other relevant documents would have been de-
stroyed under its document retention policy. USPS was
also unable to find relevant documents despite multiple in-
dividuals performing searches for the 2008 hiring file re-
lated to Mr. Payne’s USPS EEO complaint. The Board’s
finding that USPS’s ability to mount a defense would be
prejudiced by Mr. Payne’s delay is thus supported by sub-
stantial evidence. See S. Appx. 12.
For the reasons above, we conclude the Board did not
abuse its discretion in ruling that Mr. Payne’s appeal
should be dismissed on the basis of laches.
CONCLUSION
We have considered Mr. Payne’s remaining arguments
and have found them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s dismissal of Mr. Payne’s appeal
as barred by laches.
AFFIRMED
COSTS
No costs.
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