When Will the MSPB Waive a Filing Deadline Based on Agency Error?
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.
When an agency takes a disciplinary action and provides the employee with an incorrect appeal deadline, the employee may be excused from meeting that deadline if certain conditions are met. The Merit Systems Protection Board recently issued Ledbetter v. Department of Veterans Affairs, which covered when waiver is not permitted on the basis of agency error. We covered Ledbetter just a few weeks ago, here. In Hemann v. Department of Veterans Affairs, the newly-issued case summarized below, the Board clarified when waiver may be granted.
The appellant here was removed from his position at the Department of Veterans Affairs on October 14, 2020, under the authority of 38 U.S.C. § 714. The decision notice informed the appellant that he had the right to appeal and that the appeal could be filed “at any time” after he received the decision notice, “but not later than 30 calendar days after the separation” is effective or after his “receipt of the decision,” whichever came later. The appellant filed his appeal on November 23, 2020
On appeal, the administrative judge noted that Section 714 requires that an appeal be filed 10 business days after the effective date of a disciplinary action and ordered the appellant to demonstrate that his appeal was timely filed or that another basis for waiver, such as equitable tolling, of the deadline existed.
The appellant argued that equitable tolling should apply because the agency’s removal decision “specifically and clearly informed” him that “his deadline to file was 30 days from the effective date of his removal.” Based on this information, he believed his filing deadline was November 22, 2020. The appellant further explained that he attempted to file his appeal on Friday, November 20, 2020, but the MSPB’s website and e-appeal system were down throughout the entire weekend. As a result, he filed on Monday, November 23, 2020. He argued he followed the Agency’s direction and the “improper instructions from the Agency are the only reason” he missed the deadline
The administrative judge issued an initial decision finding the appeal was untimely filed under Section 714 and that equitable tolling was not warranted. Appellant filed this appeal with the Board.
The Board first determined that the appeal was untimely filed because Section 714 provides only 10 business days after the effective date to appeal a removal decision. The appellant’s removal was effective on October 23, 2020, so his appeal was due on November 6, 2020. Because the appellant filed his appeal on November 23, 2020, it was filed 17 days late.
The Board next examined whether there was any basis to waive or toll the deadline, and it held that the deadline should be equitably tolled under these circumstances
There are three scenarios under the Board will waive 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. Additionally, the doctrine of equitable tolling may be available under certain circumstances to toll a statutory deadline in an untimely filed appeal.
The Board recently decided in Ledbetter that that the first and third bases for waiver do not apply under Section 714 based on the plain reading of the statute. But, it also acknowledged that waiver of the Section 714 deadline could be available under equitable estoppel or tolling, even though it held that these remedies did not apply under the circumstances of Ledbetter.
Accordingly, the Board addressed whether equitable tolling allowed waiver in this case. The Supreme Court has established that there is a rebuttable presumption that the doctrine of equitable tolling can be invoked in certain circumstances to excuse an untimely filed lawsuit against the Government. These circumstances include situations in which an appellant “has actively pursued his judicial remedies by filing a defective pleading during the statutory period,” or when an appellant “has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
Applying these standards, the Board acknowledged that equitable tolling is a “rare remedy” but found that it applied in this case. It rejected the administrative judge’s reasoning that the unintentional nature of the agency’s error barred the application of equitable tolling, explaining that there is no requirement to establish ill intent. Instead, the Board stated, the law simply suggests that when a party takes an action or provides language that misleads an adversary, that party may not benefit from that action.
Here, the appellant stated that he relied on the agency’s language informing him that he had 30 calendar days from the effective date of his removal, and he was subsequently misled by this language to untimely file. The Board held, therefore, that the agency “induced or tricked” the appellant into allowing the 10-day deadline to pass. The Board also noted that the appellant had attempted to timely file based on the deadline he believed was accurate.
For these reasons, the Board vacated the initial decision and remanded for adjudication on the merits.
Find the full case here: Hemann v. Department of Veterans Affairs.
Hemann v. Department of Veterans Affairs
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