Case: 24-1068 Document: 23 Page: 1 Filed: 04/02/2024
`
`NOTE: This disposition is nonprecedential.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 MAURICE KENCY, Grovetown, GA, pro se.
`
`
` CALVIN M. MORROW, Office of General Counsel, United
`States Merit Systems Protection Board, Washington, DC,
`for respondent. Also represented by ALLISON JANE BOYLE,
`KATHERINE MICHELLE SMITH.
`______________________
`
`Before LOURIE, REYNA, and CHEN, Circuit Judges.
`PER CURIAM.
`
`

`

`Case: 24-1068 Document: 23 Page: 2 Filed: 04/02/2024
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`2
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`KENCY v. MSPB
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`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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`Case: 24-1068 Document: 23 Page: 3 Filed: 04/02/2024
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`KENCY v. MSPB
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`3
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`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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`Case: 24-1068 Document: 23 Page: 4 Filed: 04/02/2024
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`4
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`KENCY v. MSPB
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`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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`Case: 24-1068 Document: 23 Page: 5 Filed: 04/02/2024
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`KENCY v. MSPB
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`5
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`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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`Case: 24-1068 Document: 23 Page: 6 Filed: 04/02/2024
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`6
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`KENCY v. MSPB
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`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.
`
`