UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 46
Docket No. CH-0714-21-0067-I-1
Jason Hemann,
Appellant,
v.
Department of Veterans Affairs,
Agency.
December 20, 2022
Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant.
Dane R. Roper, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the in itial decision,
which dismissed his removal appeal for lack of jurisdiction because a statutory
filing deadline was not met and equitable tolling was not appropriate. For the
reasons discussed below, we GRANT the petition for review, VACATE the initial
decision, FIND that equitable tolling applies to the facts before us, and REMAND
the appeal to the Central Regional Office for adjudication on the merits.
2
BACKGROUND
¶2 The appellant was employed with the agency as a GS-12 Auditor in
St. Louis, Missouri. Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 51. On
October 14, 2020, the agency issued a decision notice informing the appellant
that, effective October 23, 2020, it was removing him from his position under the
authority of 38 U.S.C. § 714 based on a charge of inappropriate conduct. IAF,
Tab 8 at 59. The decision notice informed the appellant of his right to appeal to
the Board and stated that such an appeal could be filed “at any time” after he
received the decision notice, “but not later than 30 calendar days after the
separation has been effected, or 30 calendar days after the date of [his] receipt of
this decision, whichever is later.” 1 Id. at 59-60.
¶3 On November 23, 2020, the appellant filed the instant appeal with the
Board, arguing that the decision to remove him was “unsupported” and “the result
of discrimination” and that the penalty of removal was “too harsh for the conduct
charged.” IAF, Tab 1 at 4. He also requested a hearing. Id. at 2. Observing that
it appeared that the appeal was not filed within 10 business days of the effective
date of the agency action as prescribed by 38 U.S.C. § 714(c)(4)(B), the
administrative judge ordered the appellant to file evidence and/or argument
showing that his appeal was timely filed, or that, because the Board cannot waive
an untimely filing for good cause when the filing deadline is statutory, another
basis for a waiver of the deadline, such as equitable tolling, existed. IAF, Tab 3
at 1-3.
1
At the end of the decision notice, there is a line for an employee to sign
acknowledging receipt of the notice. IAF, Tab 8 at 61. In the copies of the decision
notice included in the record, the appellant’s signature does not appear on that page
acknowledging receipt. IAF, Tab 1 at 9, Tab 8 at 61. At no point does the appellant
argue that he did not receive the decision prior to the October 23, 2020 effective date.
Thus, the relevant date for a timeliness inquiry is October 23, 2020.
3
¶4 In response to the timeliness order, the appellant argued that equitable
tolling should apply because the agency’s removal decision “specifically and
clearly informed [the] [a]ppellant that his deadline to file was 30 days from the
effective date of his removal.” IAF, Tab 6 at 5. He asserted that, because his
removal was effective October 23, 2020, the filing deadline was November 22,
2020, and that he had “attempted to file his appeal on Friday, November 20, 2020,
however the MSPB’s website and e-appeal system were both down [and]
remained down throughout the weekend.” Id. He further asserted that he
successfully filed his appeal of his removal on Monday, November 23, 2020, “th e
first business day following his deadline to file.” Id. In sum, he argued that he
“followed all instructions provided by the [a]gency and diligently pursued his
case[] based on the information provided to him by the [a]gency” and that
“improper instructions from the [a]gency are the only reason” that he missed the
10-day filing deadline set forth in section 714. Id.
¶5 Without holding the requested hearing, the administrative judge issued an
initial decision finding that the appellant’s initial appeal was untimely filed under
38 U.S.C. § 714(c)(4)(B) and that equitable tolling was not warranted because,
among other reasons, the agency’s inclusion of incorrect appeal rights was an
“inadvertent mistake.” IAF, Tab 10, Initial Decision (ID) at 4-7. Accordingly,
the administrative judge dismissed the appeal for lack of jurisdiction. 2 ID at 2, 8.
¶6 The appellant has filed a petition of review, wherein he argues that the
administrative judge erred in concluding that equitable tolling does not apply to
2
Both the Board and our reviewing court have held that time prescriptions are not
jurisdictional. Kirkendall v. Department of the Army, 479 F.3d 830, 842 (Fed. Cir.
2007) (en banc); Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 13
(2014). Although the administrative judge found that the appeal was untimely filed and
dismissed the appeal for lack of jurisdiction, ID at 2, we need not reach the question of
whether this was an appropriate disposition because, as set forth below, we find that the
statutory filing deadline should be equitably tolled, and we remand the case for
adjudication on the merits.
4
waive the 10-day filing deadline because it was reasonable for him to rely on the
appeal rights provided by the agency, and that the Board has jurisdiction over his
appeal. Petition for Review (PFR) File, Tab 1 at 7-11. 3 The agency has
responded in opposition to the appellant’s petition for review. PFR File, Tab 3.
ANALYSIS
The appeal was untimely filed.
¶7 Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of
Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the
Secretary determines the performance or misconduct of the covered individual
warrants such removal, demotion, or suspension.” A “covered individual” is an
individual occupying a position with the agency, with four exceptions not
relevant here. Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶ 6;
see 38 U.S.C. § 714(h)(1)(A)-(D). Such an individual may appeal to the Board
any removal, demotion, or suspension of more than 14 days. 38 U.S.C.
§ 714(c)(4)(A); Ledbetter, 2022 MSPB 41, ¶ 6. However, an appeal “may only be
made if such appeal is made not later than 10 business days after the date of such
removal, demotion, or suspension.” 38 U.S.C. § 714(c)(4)(B); Ledbetter,
2022 MSPB 41, ¶ 6. In calculating the filing deadline under section 714,
weekends and holidays are excluded. Ledbetter, 2022 MSPB 41, ¶ 7 n.2.
¶8 Here, it is undisputed that the effective date of the appellant’s removal was
October 23, 2020. IAF, Tab 8 at 59. Under 38 U.S.C. § 714(c)(4)(B), his appeal
was due no later than 10 business days later, on November 6, 2020. 4 The
3
In his petition for review, the appellant also reasserts his claim from below that
removal was not a reasonable penalty under the circumstances. PFR File, Tab 1
at 11-16. Because we are remanding this appeal for adjudication on the merits, we need
not address the penalty here.
4
As briefly explained above, the appellant contended in his initial appeal that his
removal was “the result of discrimination.” IAF, Tab 1 at 4. In Davis v. Department of
Veterans Affairs, 2022 MSPB 45, ¶ 17, we held that an appellant who files an appeal of
5
appellant filed his appeal on November 23, 2020, and, thus, his appeal was
untimely filed by 17 calendar days. IAF, Tab 1; see 38 U.S.C. § 714 (c)(4)(B).
The issue before us is whether there is any basis to waive or toll the statutory
filing deadline.
The statutory filing deadline should be equitably tolled in this matter.
¶9 The Board has set forth three scenarios under which it 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. Ledbetter, 2022 MSPB 41, ¶ 8; see Blaha v. Office of Personnel
Management, 106 M.S.P.R. 265, ¶ 8 (2007); Speker v. Office of Personnel
Management, 45 M.S.P.R. 380, 385 (1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991)
(Table), and modified by Fox v. Office of Personnel Management, 50 M.S.P.R.
an adverse action taken pursuant to 38 U.S.C. § 714 and alleges violations of equal
employment opportunity (EEO) statutes in the first instance before the Board has filed a
mixed case, which is governed by the procedures and the timelines established by
5 U.S.C. § 7702 and its implementing regulations, and not 38 U.S.C. § 714. We further
held that the Board’s implementing regulations, which provide for a 30-day filing
period for mixed-case appeals, apply to mixed-case appeals under 38 U.S.C. § 714 that
are filed directly with the Board. Davis, 2022 MSPB 45, ¶¶ 8-9, 19. Although we are
unable to discern from the current state of the record whether this is a mixed case,
based on his initial filing, it appears that the appellant may have been attempting to
bring a mixed case. IAF, Tab 1 at 4. However, the administrative judge did not have
the benefit of our holding in Davis to prompt him to further inquire into the nature of
the appellant’s allegations to determine whether, in fact, the appellant brought a
mixed-case appeal before the Board. Nonetheless, we need not determine whether this
is a mixed case and, thus, whether it was timely filed pursuant to Davis, because a
remand for adjudication on the merits is otherwise warranted based on our application
of equitable tolling.
6
602, 606 n.4 (1991). Additionally, the doctrine of equitable tolling may be
available under certain circumstances to toll a statutory deadline in an untimely
filed appeal. Ledbetter, 2022 MSPB 41, ¶ 8; Wood v. Department of the Air
Force, 54 M.S.P.R. 587, 593 (1992).
¶10 In Ledbetter, the Board concluded that the first and third bases discussed
above did not apply to an appeal of an action taken under section 714. Ledbetter,
2022 MSPB 41, ¶¶ 9-10. Specifically, regarding the first basis for waiver, the
filing deadline cannot be waived because 38 U.S.C. § 714 does not provide for
waiver. Id., ¶ 9. Regarding the third basis, the statute does not require the
agency to notify its employees of their election rights or any associated filing
deadlines. Id., ¶ 10. However, the Board concluded in Ledbetter that the
deadline set forth in section 714 could be subject to equitable estoppel or
equitable tolling and that it was inclined to believe that equ itable tolling is
available in appeals of actions taken under section 714 under appropriate
circumstances. Id., ¶¶ 11, 14. Given that the requirements to establish equitable
tolling are less stringent than the requirements to establish equitable estoppel , we
analyze whether the appellant meets the lower burden of establishing that
equitable tolling is warranted under the circumstances presented here. See id.,
¶ 12.
¶11 The U.S. Supreme Court has held 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. See Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 95-96 (1990). Such 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.” Id. at 96; see Ledbetter, 2022 MSPB 41, ¶ 12. As it must, the
Board has followed the Supreme Court’s jurisprudence in this area. See, e.g.,
7
Ledbetter, 2022 MSPB 41, ¶ 12; Heimberger v. Department of Commerce,
121 M.S.P.R. 10, ¶ 10 (2014); Wood, 54 M.S.P.R. at 593.
¶12 The administrative judge observed that “the statute makes clear it provides
for an expedited appeal process,” and he concluded that equitable tolling should
not apply in the instant case. ID at 6-7. In arriving at this conclusion, he
reasoned that the decision notice “mistakenly cited the wrong information with
regard to the filing deadline” but that there was no evidence to suggest that the
mistake was “intentional or rose to the level of affirmative misconduct on the
agency’s part to reach the high bar required under principles of equi table tolling.”
ID at 7. He also noted the agency’s argument that language in the decision notice
referred the appellant “to the MSPB website for information regarding the appeals
process and procedures that must be followed.” ID at 4 (quoting IAF, Tab 8
at 60); IAF, Tab 7 at 5. He stated that the information at the Board’s website at
the hyperlink provided in the decision notice specifies that an appellant has
10 business days to file an appeal following an adverse action taken under
38 U.S.C. § 714. ID at 4; IAF, Tab 8 at 60. Lastly, the administrative judge also
considered that the appellant was represented by legal counsel at the outset of his
appeal, but he reasoned that an appellant is personally responsible for the diligent
prosecution of his appeal, even if he is represented. ID at 4 -5 (citing Taylor
v. U.S. Postal Service, 53 M.S.P.R. 27, 28-29 (1992)). Although he
acknowledged “the confusion attributable to the erroneous information regarding
filing deadlines contained in the decision letter,” the administrative judge
ultimately concluded that the case did not present facts that would “serve to
excuse strict adherence to the 10-day filing deadline required under § 714.”
ID at 5, 7.
¶13 As noted previously, in his petition for review, the appellant reiterates his
argument that equitable tolling should apply. PFR File, Tab 1 at 7-10. He argues
that the administrative judge ignored the fact that he complied with the 30 -day
deadline set forth in the decision notice and that the administrative judge’s
8
finding that the appellant should have known the deadline was incorrect b ecause
the statute provides for an expedited process “falls well outside any reasonable
expectation of due diligence on [the] [a]ppellant’s part.” Id. at 9. The appellant
also claims that he “made every effort to actively pursue his [remedies before the
Board] based on the information contained in the [decision notice] .” Id. at 10.
¶14 Although we acknowledge that equitable tolling is a “rare remedy,”
Heimberger, 121 M.S.P.R. 10, ¶ 10; see Irwin, 498 U.S. at 96, we agree with the
appellant that its application is appropriate under the circumstances of this case.
We have considered the administrative judge’s reasoning that the incorrect appeal
rights provided by the agency were the result of an “inadvertent mistake” and that
the unintentional error did not constitute affirmative misconduct sufficient to
invoke equitable tolling. However, the administrative judge does not cite any
legal authority to support the proposition that maliciousness or ill intent is
required to invoke equitable tolling based on a claim that a party was “induced or
tricked by his adversary’s misconduct into allowing the filing deadline to pass.”
See Irwin, 498 U.S. at 96. Nor does the agency cite to any authority to support
such a proposition.
¶15 Furthermore, our research has not revealed such a requirement, and the
limited jurisprudence is, at a minimum, silent on the question of motive . For
example, in setting forth the scenarios to which equitable tolling applies, the
Supreme Court in Irwin relied on its prior decision in Glus v. Brooklyn Eastern
District Terminal, 359 U.S. 231 (1959). See Irwin, 498 U.S. at 96 n.4. In Glus,
the petitioner alleged that an employer’s representative either “fraudulently or
unintentionally” misled him to believe that he could bring an action within
7 years after the cause of action “accrued,” despite a statutory filing deadline of
3 years. Glus, 359 U.S. at 231-32 & n.2. Silent on the employer’s
representative’s motive, the Court stated that “[t]o decide the case we need look
no further than the maxim that no man may take advantage of his own wrong.”
Id. at 232. The Court held that the petitioner was entitled to have his case tried
9
on the merits if he could prove his allegations that he was “justifiably misled into
a good-faith belief that he could begin his action at any time within [7] years after
it had accrued.” Id. at 235. Thus, in Glus, equitable tolling was applied without
regard to the opposing party’s motive.
¶16 In other cases, our reviewing court and the Board have discussed what
might trigger the application of equitable tolling without any discussion of the
motive behind opposing parties’ actions, even when the application of equitable
tolling was ultimately denied. In Frazer v. U.S., 288 F.3d 1347, 1349-50 (Fed.
Cir. 2002), our reviewing court considered whether equitable tolling should be
applied when former shareholders and directors of a defunct financial institution
brought suit against the United States approximately 9 months after the applicable
statute of limitations ran. However, the appellants did not allege any misconduct
on the part of the Government, and the court ultimately did not apply equitable
tolling. Id. at 1353-54. The court remarked, without mention of motive, that
equitable tolling “is available only when the lateness is attributable, at least in
part, to misleading [G]overnmental action.” Id. at 1353-54. Notably, the court
distinguished equitable tolling from equitable estoppel, concluding that “the
requirements for equitable estoppel are even more stringent; equitable estoppel
requires affirmative [G]overnmental misconduct.” Id. at 1354.
¶17 Similarly, in Heimberger, after the statutory period for filing an individual
right of action (IRA) appeal had passed, the appellant filed a request to reopen
her case with the Office of Special Counsel (OSC), OSC denied the request, and
the appellant filed an IRA appeal with the Board, arguing that she filed a timely
appeal because timeliness should be calculated from the date of OSC’s denial of
her request to reopen, rather than from the date of OSC’s initial close-out letter.
121 M.S.P.R. 10, ¶¶ 2-4. The Board examined the language in the original OSC
close-out letter, noting that it notified the appellant of her Board appeal rights and
the time limit for pursuing them, and invited her to seek reconsideration directly
from OSC. Id., ¶ 12. Because the OSC letter appeared to have given the
10
appellant two options for further action, but did not inform her of the
consequences of electing one versus the other, the Board acknowledged that a
reasonable person might have been affirmatively misled by this language into
seeking reconsideration from OSC while the filing period with the Board
continued to run. Id. Without regard to OSC’s motive in drafting the close-out
letter, the Board reasoned that such a circumstance would constitute a t least an
arguable basis for equitable tolling. Id. Nonetheless, because the appellant in
Heimberger resigned herself to the close-out decision for over a year before she
started to pursue the matter again with OSC, the Board concluded that the
appellant failed to show a sufficient basis to toll the filing deadline. Id.
¶18 None of the above-discussed cases, or any others identified by the Board,
suggest that an opposing party’s misconduct or misleading language must be
committed or provided with maliciousness or ill intent in order to trigger
equitable tolling. Rather, they simply suggest that when a party takes an action
or provides language that misleads an adversary, that party may not benefit from
that action.
¶19 Here, it cannot be reasonably disputed that the agency’s language informing
the appellant that he had 30 calendar days from the effective date of his removal
or 30 calendar days from his receipt of the removal notice, whichever was later,
to appeal his removal to the Board misled him into believing that a 30-day filing
period was permitted. The agency’s inclusion of a reference to the Board’s
website, which included accurate information on the filing period, or the
appellant’s reliance on counsel does not change this analysis. As such, we find
that the underlying facts establish that the agency “induced or tricked” the
appellant into allowing the statutorily required 10-day filing deadline to pass.
See Irwin, 498 U.S. at 96. Accordingly, we find that the circumstances of this
case warrant the equitable tolling of the filing deadline.
11
¶20 Further, it appears undisputed that the appellant filed his appeal within the
30-day period provided to him by the agency, 5 and the evidence suggests that he
actually had attempted to file his appeal several days before the 30 -day period
was set to expire, but was not able to do so because the Board’s e -Appeal system
was down. 6 IAF, Tab 6 at 11-12. Thus, we find that the appellant acted with due
diligence within the filing period that he reasonably believed to be correct. Cf.
Ledbetter, 2022 MSPB 41, ¶ 13 (declining to apply the doctrine of equitable
tolling even when the agency provided incorrect appeal rights because the
appellant failed to show that he filed his appeal within the incorrect timeframe
provided by the agency). Based on the foregoing, we find that the appellant is
entitled to have the statutory 10-day filing deadline equitably tolled. See Irwin,
498 U.S. at 96; Heimberger, 121 M.S.P.R. 10, ¶ 10.
5
The appellant’s removal was effective October 23, 2020. IAF, Tab 8 at 59. Thus,
under a 30-day filing deadline, the appeal needed to be filed on or before November 22,
2020. However, November 22, 2020, was a Sunday, and the Board’s regulations
provide that, “[i]f the date that ordinarily would be the last day for filing falls on a
Saturday, Sunday, or Federal holiday, the filing period will include the first workday
after that date.” 5 C.F.R. § 1201.23. As such, the appellant’s filing on Monday,
November 23, 2020, is a timely filed appeal under a 30-day filing period.
6
The Board’s records corroborate the appellant’s claim that its e-Appeal system was
down during this time period.
12
ORDER
¶21 Accordingly, we vacate the initial decision, find that equitable tolling
applies to the facts before us, and remand the appeal to the Central Regional
Office for adjudication on the merits.
FOR THE BOARD:
/s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
Jason Hemann v. Department of Veterans Affairs
Combined Opinion