UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

2022 MSPB 41
Docket No. PH

- 0714

- 18

- 0119

- I

- 1


### Percy M. Ledbetter, Appellant,

v. Department of Veterans Affairs,

Agency.
December 12 , 2022

Anthony F. Jeselnik , Esquire, Pittsburgh, Pennsylvania, for the appellant.

Sara Elizabeth Aull
, Esquire, Pittsburgh, Pennsylvania, 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 initial decision, which dismissed his removal appeal as untimely filed . For the reasons discussed below, we DENY the petition for review and AFFIRM the initial decision as MODIFIED by this Opinio n and Order to clarify the analysis of the Board’s authority to waive or toll the filing deadline of an appeal filed under 38 U.S.C. § 714 , still dismissing the appeal as untimely filed

.2

BACKGROUND ¶2 Effective November 8, 2017, t he agency removed the appellant from his Housekeeping Aid Supervisor position in its Pittsburgh Healthcare System
under t he authority of t he Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017 (VA Accountability Act)
, Pub. L.
No. 115

- 41, § 202(a), 131 Stat. 862 , 869

- 73 (2017) (codified at 38 U.S.C. § 714 )

. Initial Appeal File (IAF), Tab 15 at 13 , Tab 18 at 11. In its decision lett er, the agency advised the appellant that he could file an appeal with the Board
challen ging the removal decision no later than 30 calendar days after the effective
date of the action or 30 calendar days after his receipt of the decision, whichever

was later

. 1 IAF, Tab 15 at 15. The appellant acknowledged receipt of the
decision on November 8, 2017, the same day as the effective date of his removal. IAF, Tab 15 at 17 , Tab 18 at 11

. The appellant filed the pres ent appeal on
December 22, 2017

. IAF, Ta b 1. ¶3 After holding the requested hearing on the merits of the removal action , the administrative judge issued a show cause order, indicating that it appeared that the appellant did not timely file his appeal. IAF, Tab 21 at 1 , Tab 24, Hearing
Audio

. Sh e acknowledged that the agency incorrectly advised the appellant that he had 30 calendar days

— as opposed to the 1 0 business days set forth in
38 U.S.C. § 714

— to file his Board appeal. IAF, Tab 21 at 1

- 2. She noted
, however, that the appellant filed the appeal 14 days after the incorrect later
deadline set by the agency. Id

. at 2. As a result, she afforded the appellant an opportunity to demonstrate good cause for the delay in filing. Id

. at 2

- 3

. The appellant responded to the show cause order, and the agency submitted a reply to the appellant’s response. IAF, Tabs 22

- 23.

1 In the appeal rights section of the decision letter, the agency referred to the adverse action as a demotion rather than as a removal, which appears to be an oversight. IAF, Tab 15 at 15.3

¶4 After consideration of the pleadings , the administrative judge issued an
initial decision
, dismissing the appeal as untimely filed. IAF, Tab 25, Initial Decision (ID). She found that the issue of Board jurisdiction, including the timeliness of an appeal, is always befor e the Board and may be raised by either party, or sua sponte by the Board
, at any time. ID at 3. She also found that, based on the language of the statute, it did not appear that the time limit for filing an appeal under 38 U.S.C. § 714 could be waived upon a showing o f good cause for the delay

. Id

. She further found that an agency’s incorrect statement concerning appeal rights d oes not confer jurisdiction over an appeal
, and that, even if equitable estoppel could apply to allow the filing within the 30 calendar days provided by the agency, his appeal was filed 14 days beyond th at incorrect
deadline. Id

. She dismissed the appellant’s argument s that the timeliness requirement should be waived because neither the agency
, nor the Board
, raised
the timeliness issue until the hearing and because the agency was not prejudiced by his late filing. ID at 3

- 4. She found that, other than his pro se status, the appellant offered no justification for his untimely filing and that, even u s ing a
30

- da y filing period, his 14

- day del ay was not minimal. ID at 4. Accordingly, she dismissed the appeal. ID at 5. ¶5 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.

ANALYSIS The appellant’s appeal was untimely filed. ¶6 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 det ermines the performance or misconduct of the covered individual warrants such removal, demotion, or suspension.” A “ covered individual ” is an individual occupying a position at the agency
, with four exceptions not relevant
here. See 38 U.S.C. § 714 (h)(1)(A)

- (D). Such individual may appeal to4

the Board any removal, demotion, or suspension of more than 14 days. 38 U.S.C. § 714 (c)(4)(A). H owever, 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). ¶7 Here, t he effective date of the appellant’s removal was November 8, 2017. IAF, Tab 18 at 11. Under 38 U.S.C. § 714 (c)(4)(B), his appeal was due on or before November 2 4, 2017

. 2 T he appellant filed his ap peal on December 22,
2017 , and
, thus
, his appeal was untimely filed by 28 calendar days

. IAF, Tab 1;

see 38 U.S.C. § 714 (c)(4)(B). The remaining question , therefore, is whether the
Board may waive or toll this statutory deadline

. There is no basis to waive or toll the filing dead l ine. ¶8 The Board has enumerated the following three bases for waiving a filing deadline prescribed by statute or regulation : (1) the statute or regulation itself

spe cifies 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 re sult 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. S ee Blaha v. Office of Personnel Managem ent , 106 M.S.P.R. 265 , ¶ 8 (2007); S peker v. Office of Personnel Management
, 45 M.S.P.R. 380 , 385 (1990), aff’ d
, 928 F.2d 410 (Fed. Cir. 1991) (Table), and m odified by Fox v. Office of Personnel Management
, 50 M.S.P.R. 602 , 606 n.4 (1991) . The Board also has recognized that the doctrine of equitable tolling may be available under certain

2 In calculating the deadline, we excluded weekends and the following two holidays that fell within the filing period: Veterans Day and Thanksgiving Day.5

circumsta nces to toll a statutory deadline in an untimely filed appeal. See Wood

v. Department of the Air Force
, 54 M.S.P.R. 587 , 593 (1992)

. ¶9 Her e, t he first and the third bases for waiving the deadline are controlled by the language of the statute itself . As to the first basis for waiver, u nder
38 U.S.C. § 714 (c)(4)(B) , an appeal of a removal, demotion, or suspension of
more than 14 days must be made “ not later than 10 business days after ” the
effectiv e date of the action. In setting this deadline, Congress made no prov ision for the acceptance of late filings . Appeals filed under s ection 714 , therefore, are unlike petitions for review of initial decisions, in which Congress specifically provided for an extension of the time limit “for good cause shown.” 5 U.S.C. § 7701 (e)(1 ). Thus, we find that the statutory time limit for filing an appeal
under 38 U.S.C. § 714 cannot be waived under the first basis because Congress did not provide for it

. See Wood , 54 M.S.P.R. at 592 (concluding that the time
limit for filin g an individual right of action (IRA) appeal cannot be waived for good cause shown because the Whistleblower Protection Act (WPA) did not provide for the acceptance of late filings). ¶10 As to the third basis for w aiver, 38 U.S.C. § 714 does not require the agency to notify its employees of their election rights or any filing deadlines associated with those elections. Moreover, the Board has not promulgated regulations governing appeals under the VA Accountability Act and, thus, there is no regulatory notice requirement. Therefore , because the agency was under no obligation to provide the appellant with a notice of election rights, the third basis
for waive r is inapplicable here. See Speker , 45 M.S.P.R. at 385

- 86 (finding that the Office of Personnel Management’s failure to notify an appellant of her right to elect an alternative annuity did not form a basis for waiving a filing deadline
whe n the applicable statute and regulations in effect at the time did not require it to provide such notice ). ¶11 Although the statutory filing deadline prescribed by 38 U.S.C. § 714 cannot be waived under the first o r the third bas i s, the deadline potentially could be6

subject to equitable estoppel (the second basis for waiver) or equitable tolling.
Se e Wood , 54 M.S.P.R. at 592

- 93. Both doctrines allow a statutory deadline to be excused based on equitable considerations. See, e.g. , id. ; Speker , 45 M.S.P.R.

at 385

. However, the application of equitable relief to excuse a statutory deadline

may not always be available against the Government

. See Kirkendall v. Department of the Ar my , 479 F.3d 830 , 8 36

- 37 (Fed. Cir. 2007) (en banc) ; Frazer
v. United S tates , 288 F.3d 1347, 1352

- 53 ( Fed. Cir. 2002); RHI Holdings, Inc. v.
U nited S tates , 142 F.3d 1459 , 1461 ( Fed. Cir. 1998). ¶12 T he 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 I rwin 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 the appellant “ has been induced or tricked by his adversary’s misconduct into all owing the deadline to pass. ” Id

. at 96 ; see Heimberger v. Department of Commerce
, 121 M.S.P.R.
10 , ¶ 10 (2014). The requireme nts for equitable estoppel are “even more stringent,” requiring affirmative misconduct by the Government. Frazer , 288 F.3d at 1353

- 54; see Perez Peraza v. Office of Personnel Management
, 114 M.S.P.R. 457 , ¶ 9 (2010) (explaining that
, to prov e a claim of equitable estoppel, a party must show affirmative misconduct and reasonable reliance on
th e misconduct to that party’s detriment ). Given that the requirements to establish equitable tolling are less stringent than the requirements to establish equitable estoppel, we analyze whether the appellant meet s the lower burden of
establish ing that equitable tolling is warranted under the circumstances

. ¶13 The doctrine of equitable tolling does not extend to mere “excusable neglect

. ” Wood , 54 M.S.P.R. at 593 (quoting Irwin , 498 U.S. at 96). Moreover,

e quitable tolling is a rare remedy that is to be applied in unusual circumstances and generally requires a showing that the appellant has been pursuing his rights7

diligently and some extraordinary circumstances stood in his way. Heimberger
, 121 M.S.P.R. 10 , ¶ 10. Here, the appellant cannot meet this burden. On review,
he argues 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 through a hearing on the merits of his removal

. PFR File, Tab 1 at 5. However, he has not alleged either that he pursued his rights diligently during th e statutory filing period or that he was induced or tricked by the agency’s misconduct into allowing the deadline to pass

. S ee Heimberger
, 121 M.S.P.R. 10 , ¶ 10. Indeed, he has not set forth any explanation for his untimely filing. We note that,

a lthough the agency provided the appellant an incorrect statement of the deadline
to file a Board appeal

— advising him that he had 30 calendar days as opposed to the 10 business days prescribed by the statute

— he filed his appeal 14 days beyond the incorrect date set by the agency

. IAF, Tab 1, Tab 15 at 15, 17, Tab 18

at 11. Under these circumstances , we find that the appellant has not demonstrated that he acted with due diligence in pursuing his appeal or that any extraordinary circumstances stood in the way of his timely filing

. See Brown v. U.S. Postal
Service , 110 M.S.P.R. 381 , ¶ 12 (2009) (finding the application of equitable tolling unwarranted when the appellant’s failure to file a timely complaint was a result of his own lack of due diligence in preserving his legal rights). Thus, even if equitable relief is available under 38 U.S.C. § 714 , the appellant would be ineligible to receive it. ¶14 Regarding the availability of equitable relief to excuse an u ntimely filed appeal under 38 U.S.C. § 714 , w e are inclined to believe that equitable tolling is
available under appropriate circumstances given our reviewing court’s analysis in
Kirkendall , 479 F. 3d at 8 36

- 43 , which concluded that appeals filed under the Veterans Employment Opportunities Act of 1998 are subject to equitable tolling. However, as set forth above, the appellant here has alleged no facts that would bring him within the doctrine of equ itable tolling. Therefore, we need not, and do not, decide whether equitable exceptions may be invoked in appropriate8

circumstances to excuse an untimely filed appeal under 38 U.S.C. § 714

. See
5 U.S.C. § 1204 (h) ( providing that the Board is prohibited from issuing advisory opinions); see also Wood , 54 M.S.P.R. at 593 (concluding that the Board need not decide whether the doctrine of equi table tolling could be applied in IRA appeals brought under the WPA because the appellant did not allege any facts to bring him within the doctrine).
The administrative judge did not abuse her discretion. ¶15 In his petition for review, the appellant alleges t hat the administrative judge abused her discretion when she dismissed the appeal as untimely filed after holding a hearing on the merits of his removal. PFR File, Tab 1 at 4

- 5. In justifying the dismissal, the administrative judge stated that the issue o f whether the Board has jurisdiction over an appeal, including whether an appeal was timely filed, is always before the Board and may be raised by either party, or sua sponte by the Board, at any time during the appeal process. ID at 3. We disagree with
the statement that the timeliness of an appeal is a jurisdictional issue , as we have
held that statutory time prescriptions before the Board are not jurisdictional. 3 See Heimberger
, 121 M.S.P.R. 10 , ¶ 13 (citing Kirkendall , 479 F.3d at 842)

. Nevertheless, because the deadline for filing an appeal under 38 U.S.C. § 714 is statutory and the appellant has not shown any basis for waiving or tolling the

3 It is understandable that the administrative judge may have believed that the time prescription here was jurisdic tional given that our reviewing court has held that certain time prescriptions are jurisdictional , including the 60

- day time limit for filing an appeal of a final Board de cision pursuant to 5 U.S.C. § 7703 (b)(1)(A)

. See Fedora v. Merit Systems Protection Board
, 848 F.3d 1013 , 1014

- 17 (Fed. Cir. 2017 ). In Fedora , the U.S. Court of Appeals for the Federal Circuit found that, pursuant to the U.S. Supreme Court’s decision in Bowles v. Russell
, 551 U.S. 205 , 209, 212

- 13 (2007), statut ory time periods for filing an appeal to an Article III court are “mandatory and jurisdictional,” and are not subject to equitable tolling. Fedora , 848 F.3d at 1015. However, the Board is not an Article III court, and we discern no basis to deviate from precedent and conclude that the time prescription set forth in 38 U.S.C. § 714 (c)(4)(B) is jurisdictional. See Heimberger
, 121 M.S.P.R. 10 , ¶ 13 (citing Kirkendall , 479 F.3d at 842).9

statutory deadline, the administrative judge did not have the discretion to waive
or toll the filing dead line once she discovered it was untimely filed. See Heimberger
, 121 M.S.P.R. 10 , ¶ ¶ 9, 12 ( stating that the appeal must be dismissed as untimely filed when the re is an insufficient basis to waive or toll the statutory filing deadline). Therefore, although unfortunate that the administrative judge did not address the apparent untimeliness of the appeal prior to concluding a hearing on the merits, we find that she did not abuse her discretion in doing so

.

ORDER ¶16 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R. § 1201.113 ).

NOTICE OF APPEAL RIG HTS 4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failu re to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.10

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have que stions about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must f ile a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washin gton, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

co ntained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probo no for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you11

were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision

— including a disposition of your discrimination
claims

— by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board
, 582 U.S.

____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your repr esentative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court

- appointed lawyer and to waiver of any requ irement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e

- 5 (f) and 29 U.S.C. § 794a

. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues

. 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representativ e receives
this decision. If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:12

Office of Federal Operations Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 20013 If you submit a r equest for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission

131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Jud icial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 23 02 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of a llegations of a prohibited personne l practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision.
5 U.S. C. § 7703 (b)(1)(B).

5 The original statutory provision that provided for judicial review of certain whistleblower claims by any cour t of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblow er reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115

- 195, 132 Stat. 1510.13

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison P lace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appell ants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http:// www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept re presentation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

/s/ Jennifer Everling Acting Clerk of the Board Washington, D.C

.