Despite Agency’s Incorrect Deadline Calculation, MSPB Rejects Equitable Relief for Appellant Who Untimely Filed Appeal
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
In this case, the Department of Veterans Affairs terminated the appellant under the authority of 38 U.S.C. § 714, the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. The agency advised the appellant that he could file an appeal of his removal with the Merit Systems Protection Board no later than 30 days after his receipt of the decision, and the appellant acknowledged receipt of the decision on November 8, 2017. The appellant filed the instant appeal on December 22, 2017.
When the case came before an administrative judge, the judge pointed out that the agency had incorrectly advised the appellant that he had 30 days to file his appeal. Under Section 714, the appellant actually only had 10 days to file his appeal. She also noted that, even though the agency erroneously gave the appellant 20 extra days to file, the appellant filed his appeal 14 days after the incorrect 30-day deadline provided by the agency. Accordingly, the appellant filed his appeal 34 days after the statutorily mandated 10-day deadline. The administrative judge therefore issued an initial decision dismissing the appeal as untimely filed.
The appellant filed a petition for review and, on appeal, the Merit Systems Protection Board similarly determined that the appeal was untimely filed.
The Board first looked to the language of 38 U.S.C. § 714(c)(4)(B), which states that an appeal of any removal may only be made 10 days after the date of the removal. Agreeing with the administrative judge’s calculation of the timeline, the Board held that the appellant’s appeal was untimely.
It turned, then, to whether there was a basis to waive or toll the filing deadline. There are three bases for waiving a filing deadline prescribed by statute or regulation: (1) the statute or regulation itself specifies circumstances in which the time limit will be waived; (2) an agency’s affirmative misconduct precludes it from enforcing an otherwise applicable deadline under the doctrine of equitable estoppel, unless the application of equitable estoppel would result in the expenditure of appropriated funds in contravention of statute; and (3) an agency’s failure to provide a mandatory notice of election rights warrants the waiver of the time limit for making the election.
The first and third bases are answered by the plain language of the statute. In regard to the first basis, the Board stated that the language of the statute makes clear that there are no circumstances in which the 10-day time limit will be waived. Similarly, Section 714 does not require the agency to notify its employees of election rights or any filing deadlines associated with those elections.
The Board next addressed the appellant’s argument under the second basis that “an equitable exception should apply to excuse the untimely filing of his appeal because of the significant burden he assumed in pursuing his appeal.” It rejected this argument for several reasons, holding that neither equitable estoppel or equitable tolling—both of which would excuse his late filing—did not apply. First, equitable estoppel requires affirmative misconduct by the Government, and the agency’s mistaken deadline does not rise to this standard. Additionally, the doctrine of equitable tolling can only be used in situations in which an appellant has actively attempted to pursue his judicial remedies but fails to do so, for example, by filing a defective pleading during the statutory period. Equitable tolling can also apply when an appellant has been “induced or tricked by his adversary’s misconduct into allowing the deadline to pass.”
Here, the Board reasoned that the appellant did not allege that he was induced by the agency’s misconduct in allowing the deadline to pass and, even though the agency did provide the wrong deadline, the appellant still filed 14 days after this incorrect deadline.
For these reasons, the Board denied the petition for review and affirmed the initial decision.
Find the full case here: Ledbetter v. Department of Veterans Affairs
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