Libby A. Demery v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LIBBY A. DEMERY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2215
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-3330-19-0292-I-1.
______________________
Decided: November 4, 2025
______________________
L IBBY A. D EMERY , Clinton, MD, pro se.
K ELLY WINSHIP , Office of the 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 M OORE, Chief Judge, HUGHES and STOLL , Circuit
Judges.
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DEMERY v. MSPB 2
P ER CURIAM .
Libby Demery seeks review of a decision of the Merit
Systems Protection Board denying her request for correc-
tive action under the Veterans Employment Opportunity
Act because she did not file a timely complaint with the
Department of Labor. The Board concluded that Ms. Dem-
ery failed to file her complaint with the Department of La-
bor within the 60-day statutory period under
5 U.S.C. § 3330(a)(2)(A). Because the Board did not err in
finding that Ms. Demery’s complaint was untimely, we af-
firm.
I
Ms. Demery’s claims in this case stem from 2010, when
she was not selected for a Management Analyst position in
the National Guard Bureau.1 She sought relief under the
Veterans Employment Opportunity Act (VEOA) in August
2011, but the Board denied her request because her com-
plaint with the Department of Labor (Labor) was filed after
the 60-day statutory period under 5 U.S.C. § 3330(a)(2)(A).
Demery v. Dep’t of the Army, No. DC-3330-13-0063-I-1.2
She subsequently filed an individual right of action un-
der the Whistleblower Protection Act (WPA). Demery v.
Dep’t of the Army, No. PH-1221-18-0105-W-1. Ms. Demery
alleges that on June 12, 2018, during a hearing for her
WPA claim, she discovered evidence of “fraudulent
1 More details about Ms. Demery’s non selection can
be found in our previous opinion. See Demery v. Dep’t of the
Army, 809 F. App’x 892, 894–95 (Fed. Cir. 2020). Ms. Dem-
ery also has another pending case before this court, Dem-
ery v. Merit Sys. Prot. Bd., Fed. Cir. No. 25-1157.
2 Ms. Demery’s 2011 VEOA claim is not before us to-
day.
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DEMERY v. MSPB 3
concealment” related to her non-selection in 2010. S.A. 46.3
Ms. Demery received an Initial Decision denying her WPA
claim on July 27, 2018 and filed her Petition for Review
August 30, 2018. S.A. 68–70. Her petition was granted, but
Ms. Demery later moved to withdraw her Petition for Re-
view on June 4, 2019. Appx 12.
In the interim, Ms. Demery filed a new VEOA com-
plaint with Labor on May 7, 2019 based on the information
she learned at the June 12, 2018 hearing nearly a year ear-
lier. Labor issued a closeout letter4 stating that it could not
investigate her complaint because she filed it after the
VEOA’s statutory deadline, which is “60 days after the date
of the alleged violation.” 5 U.S.C. § 3330(a)(2)(A).
Ms. Demery appealed Labor’s decision to the Board on
June 1, 2019. S.A. 31–35. The administrative judge or-
dered Ms. Demery to show cause for the delay between the
discovery of the new evidence on June 12, 2018, and May 7,
2019, when she filed her complaint. S.A. 58–59. Ms. Dem-
ery argued that because of the “fraudulent concealment”
she discovered, a fraud-specific exemption excused her de-
lay. S.A. 60–67. However, the administrative judge found
that Ms. Demery’s discovery of new evidence did not ex-
plain or excuse the additional eleven months it took to file
a complaint. Accordingly, the administrative judge upheld
Labor’s dismissal of her claim. S.A. 16.
Ms. Demery alternatively argued that, to the extent
she did miss the 60-day deadline to file a complaint with
Labor, equitable tolling should apply. The administrative
3 S.A. refers to the Supplemental Appendix attached
to the Respondent’s Informal Response Brief. Appx refers
to the documents attached to Ms. Demery’s briefs.
4 The date of the original Labor closing letter was
mistakenly typed as May 20, 2018, but it was issued
May 20, 2019. S.A. 36–37.
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DEMERY v. MSPB 4
judge explained that “[t]here is no real dispute that the ap-
pellant’s Labor complaint was untimely . . . . [T]he appel-
lant did not file her [Labor] complaint until May 7, 2019,
nearly eleven months later. Thus, she has missed the sixty-
day deadline for filing a timely complaint with [Labor].”
S.A. 16. The administrative judge denied Ms. Demery’s ap-
peal on jurisdictional grounds because her complaint with
Labor was untimely. S.A. 17.
Ms. Demery filed an appeal to the full Board. The
Board similarly found that Ms. Demery failed to explain
why she did not file her Labor complaint until May 7, 2019.
S.A. 5. The Board issued a final order affirming the admin-
istrative judge’s decision to deny Ms. Demery’s request for
corrective action under the VEOA because she did not meet
the 60-day statutory deadline to file her Labor complaint
under § 3330a(a)(2)(A).5 S.A. 6. Ms. Demery now appeals
the Board’s decision affirming denial of corrective action of
her VEOA claim.
On June 24, 2024, the administrative judge’s initial de-
cision, supplemented by the Board’s order, became the final
decision of the Board. S.A. 6. Ms. Demery timely appealed
to this court. For the reasons explained below, we affirm
the Board’s decision. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
5 The Board’s final order reversed the administrative
judge’s finding that the Board lacked jurisdiction based on
Ms. Demery’s untimely filing. S.A. 2–4. The Board found
that the administrative judge erroneously based his juris-
dictional determination on the untimeliness of Ms. Dem-
ery’s complaint with Labor. The Board conducted its own
jurisdictional analysis and found that it had jurisdiction
over Ms. Demery’s appeal under the VEOA. The parties do
not contest the Board’s findings here.
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DEMERY v. MSPB 5
II
Our standard of review is limited and requires this
Court to affirm a decision of the Board unless it is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Substantial evidence is “relevant evi-
dence [that] a reasonable mind might accept as adequate
to support a conclusion.” McGuffin v. Soc. Sec. Admin.,
942 F.3d 1099, 1107 (Fed. Cir. 2019).
III
5 U.S.C. § 3330a(a)(2)(A) states that “[a] complaint un-
der this subsection must be filed within 60 days after the
date of the alleged violation.” (emphasis added). Ms. Dem-
ery does not appear to dispute that her complaint was un-
timely. Rather, she appears to argue that her untimely
filing was excused because of a fraud-specific exemption,
and that the statute of limitations does not apply. A “fraud
discovery rule” differs from the traditional equitable tolling
doctrine: it is a distinct, equitable rule that may excuse fail-
ure to meet a required deadline. Rotkiske v. Klemm, 589
U.S. 8, 15 (2019); see also Oram v. Merit Sys. Prot. Bd., No.
2022-1545, 2022 WL 17495910 at *4 (Fed. Cir. Dec. 8,
2022) (“[W]hen a complainant has been fraudulently in-
duced to miss a required deadline, a separate and distinct
equitable, fraud-specific discovery rule may excuse failure
to meet a required time deadline.”).
Even if we accept that a fraud-specific discovery rule
could apply to this case, we agree with the Board that
Ms. Demery failed to explain why she did not file her
VEOA complaint until eleven months after her
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DEMERY v. MSPB 6
“discovery.”6 Accordingly, we affirm the Board’s finding
that Ms. Demery’s VEOA complaint with Labor was un-
timely.
Ms. Demery also argues that equitable tolling should
apply to her VEOA claim and excuse her untimeliness. Alt-
hough the 60-day period for filing a VEOA complaint with
Labor is subject to equitable tolling, Kirkendall v. Dep’t of
Army, 412 F.3d 1273, 1278 (Fed. Cir. 2005), the Board
properly found that the circumstances here did not warrant
its application. Equitable tolling generally applies in situ-
ations where “the complainant has been induced or tricked
by his adversary’s misconduct into allowing the filing dead-
line to pass.” Kirkendall v. Dep’t of Army, 479 F.3d 830, 839
6 Ms. Demery appears to argue that
5 U.S.C. § 3330a(e)(2) precluded her from pursuing her
VEOA claim until after her WPA claim was final. Pet.
Br. 2–7; see also Appx at 4–7. 5 U.S.C. § 3330a(e)(2) states
that “[a] preference eligible may not pursue redress for an
alleged violation described in subsection (a) under this sec-
tion at the same time the preference eligible pursues re-
dress for such violation under any other law, rule, or
regulation.” While Ms. Demery’s WPA and VEOA claims
arise from the same non-selection at issue, her WPA claim
pertains to certain disclosures she made to management
that she believed impacted her non-selection. In contrast,
Ms. Demery’s VEOA claim concerns an alleged violation of
veterans’ preference rights, which does not prevent her
from pursuing these claims in parallel. See Sears v. Dep’t
of the Navy, 88 M.S.P.R. 31, 34 (M.S.P.B. 2001) (finding
that 5 U.S.C. § 3330a(e)(2) does not prevent pursuit of a
VEOA claim and a non-veterans preference rights claim);
see also Bagunas v. U.S. Postal Serv., 92 M.S.P.R. 5, 8 n.2
(M.S.P.B. 2002) (discussing how the claims can be pursued
in parallel), overruled on other grounds by, Garcia v. Dep’t
of Agric., 110 M.S.P.R. 371, 375–76 (M.S.P.B. 2009).
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DEMERY v. MSPB 7
(Fed. Cir. 2007) (citing Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89, 96 (1990)). Here, the Board concluded that
Ms. Demery did not explain why equitable tolling should
apply in her case. S.A. 5. She similarly fails to explain to
this court why equitable tolling applies.
IV
We have considered Ms. Demery’s other arguments on
appeal and find them unpersuasive. For these reasons, we
affirm the Board’s dismissal of Ms. Demery’s complaint.
AFFIRMED
COSTS
No costs.
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