Erice Maurice Kency v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ERICE MAURICE KENCY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-1068
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-3330-18-0193-I-1.
______________________
Decided: April 2, 2024
______________________
ERICE M AURICE K ENCY , Grovetown, GA, pro se.
CALVIN M. M ORROW , 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 L OURIE, REYNA , and CHEN, Circuit Judges.
P ER CURIAM .
Case: 24-1068 Document: 23 Page: 1 Filed: 04/02/2024

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KENCY v. MSPB 2
Appellant Erice M. Kency appeals a decision of the
Merit Systems Protection Board (Board) affirming the dis-
missal of Mr. Kency’s appeal as untimely. Mr. Kency ar-
gues that the Board erred in deeming his appeal untimely
and, alternatively, erred in failing to apply equitable toll-
ing. Because Mr. Kency failed to properly raise these ar-
guments before the Board, we affirm.
I
Mr. Kency filed a complaint with the Secretary of La-
bor (Secretary), alleging that the Department of the Army
violated the Veterans Employment Opportunities Act of
1998 (VEOA) by failing to appropriately credit his service
and consider his veterans’ preference points in hiring.
S.A. 23–24;1 see also Dow v. Gen. Servs. Admin., 590 F.3d
1338, 1339 (Fed. Cir. 2010) (describing veterans’ preference
points). The VEOA requires giving qualifying veterans
preference in employment for certain government posi-
tions. Dow, 590 F.3d at 1339 (citing 5 U.S.C. § 3330a).
Such veterans have points added to their score on the civil
service examination and are listed ahead of other appli-
cants. Id. (citing 5 U.S.C. § 3309; 5 C.F.R. § 332.401).
After receiving Mr. Kency’s complaint, the Secretary
investigated the complaint through the Department of La-
bor’s Veterans’ Employment and Training Service (VETS),
found no violation of the VEOA, and sent Mr. Kency a no-
tice letter to that effect on December 6, 2017. S.A. 23–24.
The Secretary’s letter stated that any appeal to the Board
must be made by Mr. Kency within 15 calendar days from
the date Mr. Kency received the letter and included infor-
mation on how Mr. Kency could file an appeal with the
Board. S.A. 23–24. Mr. Kency acknowledges receiving the
Secretary’s letter on December 6, 2017.
1 S.A. refers to the supplemental appendix attached
to the respondent’s informal brief, ECF No. 15.
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KENCY v. MSPB 3
On December 11, 2017, the Secretary sent a corrected
version of the December 6 letter. S.A. 38–41. Though the
original December 6 letter was addressed to Mr. Kency, it
had an incorrect case number, and the December 11 letter
updated the number to reflect Mr. Kency’s case. Compare
S.A. 23 (“Case No. GA-2018-003-VPH”), with S.A. 40
(“Case No. GA-2017-003”) (emphasis added). The content
of the corrected letter—including the original December 6,
2017 date on each page of the letter—otherwise remained
identical. Id. Twenty days after receiving the Board’s De-
cember 6 letter, Mr. Kency filed an appeal to the Board on
December 26, 2017. S.A. 2.
On January 5, 2018, the Administrative Judge (AJ) as-
signed to Mr. Kency’s appeal issued an order noting that
the appeal appeared untimely. S.A. 25–28 (Timeliness Or-
der). In bold text, the Timeliness Order indicated that “[i]t
appears that the filing period in this case began on Decem-
ber 6, 2017, and that your appeal was filed by e-file on De-
cember 26, 2017. It therefore appears that your appeal was
filed 5 days late.” S.A. 26.
The Timeliness Order also instructed Mr. Kency on the
steps he “must take to show that the Board should not dis-
miss the appeal as untimely,” including a requirement to
“file evidence and/or argument showing that [his] appeal
was timely filed or that equitable tolling applies.” S.A. 25,
27. The order expressly warned Mr. Kency that if his ap-
peal was deemed untimely, and no basis to excuse the un-
timeliness was shown, “[his] appeal will be dismissed.”
S.A. 27. Finally, the order offered additional, individual-
ized guidance to Mr. Kency if he had “a question regarding
any of the case processing instructions in this Order.”
S.A. 25.
Mr. Kency did not respond to the Timeliness Order and
did not file arguments or evidence addressing timeliness or
equitable tolling. S.A. 3. Thus, the AJ dismissed
Mr. Kency’s appeal as untimely. S.A. 1–10. Following the
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KENCY v. MSPB 4
AJ’s dismissal order, Mr. Kency filed a petition for review
by the Board, which denied his petition, noting that it gen-
erally would not consider arguments and evidence that
could have been—yet were not—initially raised to the AJ.
S.A. 11–12; id. at 13–14 (citing 5 C.F.R. § 1201.115(d)).
The Board explained that the relevant evidence was in
Mr. Kency’s possession during proceedings before the AJ,
and Mr. Kency “has not explained why he failed to make
this or any other argument in response to the administra-
tive judge’s timeliness order.” S.A. 13–14.
Mr. Kency timely appealed. We have jurisdiction un-
der 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A); see
also Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1014
(Fed. Cir. 2017).
II
“The scope of our review in an appeal from a decision
of the Board is limited.” Barrett v. Soc. Sec. Admin., 309
F.3d 781, 785 (Fed. Cir. 2002). “We are obligated to affirm
the Board’s decision unless we find it to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” Id. (citing 5
U.S.C. § 7703(c)).
III
Mr. Kency makes two arguments on appeal. First, he
argues that his appeal was timely filed, because the De-
cember 11 letter indicates that he may file an appeal within
15 calendar days from the receipt of “this letter.” Since
“this letter” was received on December 11, Mr. Kency ar-
gued that his filing on December 26 was timely under the
relevant regulation, 5 C.F.R. § 1208.22(b), which deems
timely an appeal filed 15 days from the “Secretary’s notice.”
Mr. Kency emphasizes that the relevant regulations re-
quire a “copy of the Secretary’s notice” to be “submitted
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KENCY v. MSPB 5
with the appeal,” see id., and notes that he did not receive
the relevant copy until December 11. Second, Mr. Kency
argues that his appeal should have been deemed timely un-
der equitable tolling principles because the December 11
letter actively misled him into believing that the relevant
deadline was December 26. See 5 C.F.R. § 1208.22(c)
(providing for equitable tolling “[i]n extraordinary circum-
stances,” such as “cases involving deception”). Mr. Kency
emphasizes that he is pro se, and asserts that a wooden
interpretation of § 1208.22(b) and (c) would be especially
unfair, given that it was clear he was diligently pursuing
his appeal and the delay was minimal.
Though we are sympathetic to Mr. Kency’s arguments,
we are constrained by the fact that Mr. Kency did not raise
these arguments to the AJ. The AJ’s Timeliness Order ex-
pressly instructed Mr. Kency on how he could raise these
arguments and when he needed to do so. S.A. 25–28. It
also instructed Mr. Kency of the consequences of failing to
timely submit such evidence: “[his] appeal will be dis-
missed as untimely.” S.A. 27.
On appeal before us, Mr. Kency does not explain why
he did not respond to the AJ’s Timeliness Order or give us
any other reason to find an abuse of discretion in the deci-
sion not to address Mr. Kency’s new arguments to the
Board. See Elmore v. Dep’t of Transp., 421 F.3d 1339, 1342
(Fed. Cir. 2005) (“Where, as here, the Board denied review
of the administrative judge’s initial decision, this court will
not consider issues not raised before the administrative
judge.”); Linn v. OPM, 566 F. App’x 962, 964 (Fed. Cir.
2014) (“As the Board noted in its decision, [the petitioner]
had the opportunity to raise this argument in his initial
appeal to the [AJ] . . . and failed to do so. A litigant who
fails to properly raise an issue before an administrative
agency ordinarily is precluded from litigating that issue be-
fore us.”). Accordingly, we conclude that the Board did not
abuse its discretion in refusing to consider Mr. Kency’s new
arguments.
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KENCY v. MSPB 6
IV
We have considered Mr. Kency’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the decision of the Board dismissing Mr. Kency’s ap-
peal.
AFFIRMED
COSTS
No costs.
Case: 24-1068 Document: 23 Page: 6 Filed: 04/02/2024

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