UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BENJAMIN T. POST,

Appellant,

v.

DEPARTMENT OF JUSTICE,

Agency.

DOCKET NUMBER

CH-1221-15-0699-W-1

DATE: May 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

Ellen L. Harrison, Esquire, Springfield, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

dismissed his individual right of action (IRA) appeal as untimely filed. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review. Except as 

modified in paragraph 8 to clarify that time prescriptions are not jurisdictional, 

we AFFIRM the initial decision, which is now the Board’s final decision. 

5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant, a GS-13 Criminal Investigator, filed a complaint with the 

Office of Special Counsel (OSC) in December 2014 alleging that agency officials 

had lowered his performance rating in retaliation for his protected disclosures. 

Initial Appeal File (IAF), Tab 1 at 1, 9. In a close-out letter dated June 26, 2015, 

OSC notified the appellant that it was closing its inquiry into his allegations and 

informed him of his right to file a request for corrective action with the Board 

within 65 days after the date of the letter. Id. at 8. 

¶3 On September 22, 2015—88 days after the date of the close-out letter—the 

appellant, through his attorney, mailed an IRA appeal to the Board. See id. at 32. 

The administrative judge issued an order on timeliness notifying the appellant 

that his IRA appeal appeared to be untimely filed by 23 days and ordering him to 

submit evidence and argument showing that the appeal was timely filed or that 

equitable tolling should apply. IAF, Tab 4 at 1-3. In response, the appellant’s 

attorney submitted a sworn declaration acknowledging that the appeal was 

untimely filed, but asking that the filing deadline be waived on the basis of 
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equitable tolling because he, the attorney, was solely responsible for the late 

filing and the appellant was adjusting to a new duty station in Puerto Rico during 

the filing period, which “kept [him] from repeatedly contacting his legal counsel 

regarding the progression of his Whistleblower case.” IAF, Tab 7 at 3, 6, 9. The 

attorney explained that he miscalculated the filing deadline because he was very 

busy with other casework and his eyesight had become worse than he realized, 

which caused him to misread the date on the OSC close-out letter as “July 26, 

2015,” rather than “June 26, 2015.” Id. at 3-10. In an initial decision based on 

the written record, the administrative judge dismissed the appeal as untimely 

filed, finding that the appellant filed the appeal approximately 3 weeks late and

that he failed to establish grounds for equitable tolling of the time limit. IAF, 

Tab 13, Initial Decision (ID) at 3-5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The appellant, through his attorney, has filed a petition for review of the 

initial decision, arguing that the administrative judge erred by dismissing the IRA 

appeal as untimely filed because the Board has the authority to invoke equitable 

tolling in this case on the basis of the factual circumstances described in the 

attorney’s declaration below.

2

 Petition for Review (PFR) File, Tab 1; see IAF, 

Tab 7. Specifically, the appellant argues that his attorney’s degraded physical 

condition, of which the appellant was unaware, impacted the attorney’s ability to 

 2 The appellant also asserts on review that the issue of whether equitable tolling may be 

applied in appeals arising under 5 U.S.C. § 1221 “has never been squarely addressed by 

the Board and we are seeking to have the question answered[.]” PFR File, Tab 1 at 3. 

Because, as discussed below, we agree with the administrative judge that the appellant 

has alleged no facts that would bring him within the doctrine of equitable tolling, we

need not, and do not, decide whether the doctrine of equitable tolling may be invoked in 

appropriate circumstances to excuse an untimely filed IRA appeal. See 5 U.S.C. 

§ 1204(h) (the Board is prohibited from issuing advisory opinions); see also Wood v. 

Department of the Air Force, 54 M.S.P.R. 587, 591-93 (1992) (finding no 

circumstances to suggest that equitable tolling, even if it could be applied, warranted a 

waiver of the filing deadline).
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timely file this IRA appeal and that the appellant, who had recently relocated to 

Puerto Rico, acted reasonably in relying upon his experienced counsel to comply

with the statutory deadlines. PFR File, Tab 1 at 4. 

¶5 Under 5 U.S.C. § 1214(a)(3)(A), once OSC closes its investigation into a 

complaint, an appellant may file an IRA appeal with the Board within 60 days. 

Under the Board’s regulations implementing that statutory time limit, an IRA 

appeal must be filed no later than 65 days after the date that OSC issues its 

close-out letter, or, if the letter is received more than 5 days after its issuance, 

within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1). Here, it is 

undisputed that the appellant, through his attorney, filed the IRA appeal nearly 

3 weeks past the filing deadline. PFR File, Tab 1 at 2; see IAF, Tab 1 at 8, 32.

¶6 Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5(a), the 

filing period for an IRA appeal is statutory—not regulatory. 5 U.S.C. 

§ 1214(a)(3)(A); Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 9 

(2014). Unlike the Board’s regulatory time limits for appeals filed under 

5 U.S.C. § 7701, the statutory time limit for filing an IRA appeal cannot be 

waived for good cause shown because there is no statutory mechanism for doing 

so. Heimberger, 121 M.S.P.R. 10, ¶ 9. However, the filing deadline might be 

subject to equitable tolling, under which the filing period is suspended for 

equitable reasons, such as when the complainant has been induced or tricked by 

his adversary’s misconduct into allowing the deadline to pass or where he filed a 

defective pleading during the statutory period. Wood, 54 M.S.P.R. at 593 (citing

Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). Equitable 

tolling is a rare remedy that is to be applied in unusual circumstances and 

generally requires a showing that the litigant has been pursuing his rights 

diligently and some extraordinary circumstances stood in his way. Heimberger, 

121 M.S.P.R. 10, ¶ 10. Equitable tolling does not extend to mere “excusable 

neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96). 
5

¶7 Here, as noted above, the appellant, through his attorney, urges the Board to 

apply equitable tolling to excuse his untimely filing because his attorney 

miscalculated the filing deadline and misread the date of the OSC close-out letter 

due to deteriorating vision, and the appellant reasonably relied on his experienced 

attorney to timely file the appeal. PFR File, Tab 1 at 3-4; see IAF, Tab 7 at 2-9. 

These circumstances, while unfortunate, do not constitute the type of 

extraordinary circumstances that warrant tolling a statutory deadline. See Irwin, 

498 U.S. at 96; Heimberger, 121 M.S.P.R. 10, ¶¶ 10-12; Pacilli v. Department of 

Veterans Affairs, 113 M.S.P.R. 526, ¶¶ 10-11, aff’d, 404 F. App’x 466 (Fed. Cir.

2010). Therefore, we agree with the administrative judge that the appellant’s IRA 

appeal was untimely filed and that he has not alleged any circumstances that 

would warrant the application of equitable tolling to excuse his untimeliness. ID 

at 3-5. 

¶8 Although we generally agree with the administrative judge’s analysis of this 

case, we wish to clarify the legal basis for the dismissal. The initial decision 

states at one point that the appeal is dismissed because the Board lacks 

jurisdiction over the appeal. ID at 2. However, time prescriptions are not 

jurisdictional. Heimberger, 121 M.S.P.R. 10, ¶ 13. The correct disposition for 

this case is dismissal as untimely filed and, because the appeal is dismissed on 

timeliness grounds, we do not reach the jurisdictional issue. See id. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 
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and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court.

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in 

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode/htm. 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 contained within the court’s 

Rules of Practice, and Forms 5, 6, and 11. Additional information about other 

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.

If you are interested in securing pro bono representation for your appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 
7

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board