UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LIN M. BYRD,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

SF-1221-20-0221-W-1

DATE: June 20, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Lin M. Byrd, Lompoc, California, pro se.

Kathryn Price, El Segundo, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

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

petition for review, the appellant reiterates her argument from below that her

mental illness should warrant the application of equitable tolling to suspend the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
statutory filing deadline. Petition for Review (PFR) File, Tab 1 at 4-6.

Generally, we grant petitions such as this one only in the following

circumstances: 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 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. 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 expressly MODIFIED to

supplement the initial decision to provide further analysis on whether the

appellant’s mental illness is a basis for the equitable tolling of the statutory filing

deadline, we AFFIRM the initial decision. 

The administrative judge correctly found that the IRA appeal was untimely

filed by 2 days. Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 5; see

5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a). He correctly explained that,

generally, equitable tolling may be applied to suspend the filing period for

equitable reasons, such as when an appellant has been induced or tricked by her

adversary’s misconduct into allowing the deadline to pass, or when she filed a

defective pleading during the statutory period. ID at 5 (citing Irwin

v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)); see Heimberger

v. Department of Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). We agree with the

administrative judge’s conclusion that the appellant’s assertions concerning her

mental illness and related symptoms do not meet either of those circumstances.

ID at 5-6. 

2
However, our reviewing court has stated that equitable tolling “is available

in a variety of circumstances, including when a party has been mentally

incapacitated.” Barrett v. Principi, 363 F.3d 1316, 1318 (Fed. Cir. 2004). In

Barrett, the court considered whether the filing deadline for an appeal of a final

decision by the Board of Veterans’ Appeals could be equitably tolled based on a

claim of mental illness. Id. at 1317-21. It answered that question in the

affirmative and concluded that, to obtain the benefit of equitable tolling based on

a claim of mental illness, an appellant must show that the failure to timely file

was the “direct result of a mental illness that rendered him incapable of ‘rational

thought or deliberate decision making,’ [] or ‘incapable of handling [his] own

affairs or unable to function [in] society.’” Id. at 1321 (internal citations

omitted). The court further stated that “a medical diagnosis alone or vague

assertions of mental problems will not suffice.” Id.

To the extent the deadline for filing an IRA appeal, as set forth in 5 U.S.C.

§ 1214(a)(3)(A) and 5 C.F.R. § 1209.5(a)(1), may be similarly equitably tolled

based specifically on a claim of mental illness, we find that the appellant has

failed to make the necessary showing under Barrett to apply the doctrine here.

Although the appellant submitted into the record a letter from her treating

physician stating that she suffers from bipolar disorder, severe anxiety, and panic

attacks, which, he claims, “impair[ed] her ability to complete the appeal in a

timely manner,” the letter did not explain how such an impairment manifested.

IAF, Tab 4 at 8. For example, the letter did not state that the appellant

experienced a panic or anxiety attack on a specific date or dates within the

timeframe during which the appellant was required to file her appeal, nor did it

explain what specific symptoms the appellant exhibited and when, or how those

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specific symptoms kept the appellant from filing within the required time frame. 2

Id. 

Further, the appellant’s own statements belie her claim that her mental

illness prevented her from filing her appeal on time. As noted by the

administrative judge, the appellant referred to herself as a “mature person” who

could work in her position as a Contracting Specialist. ID at 5; IAF, Tab 1 at 19.

Moreover, the appellant claimed that she was “shocked to read” that her appeal

was untimely filed by 2 days because she “had counted the days” when she first

received the notice and “thought [the appeal] was due [January] 28th.” IAF,

Tab 4 at 4. Although she claims that extreme stress may have caused her to

“remember incorrectly,” she nonetheless admits that her late filing was due to an

error in calculation. Id. Based on the foregoing, we supplement the initial

decision to find that the appellant failed to show that her failure to timely file her

appeal was the direct result of a mental illness that rendered her incapable of

rational thought or deliberate decision making, or incapable of handling her own

affairs or unable to function in society. See Barrett, 363 F.3d at 1318.

Accordingly, we agree with the administrative judge’s ultimate conclusion that

the appellant has failed to prove that the statutory filing deadline should be

equitably tolled in this case, and we affirm his dismissal of this case as untimely

filed. 

2

 The note from the appellant’s physician is particularly brief—less than 100 words long

—and does not include any supporting medical evidence such as clinical notes or test

results. IAF, Tab 4 at 8. The note also does not indicate when the physician last saw

the appellant or if that visit was during or around the time of the filing period at issue

here, nor does it state what the appellant’s specific medical state was at the time of her

most recent visit. Id.

4
NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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 questions

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 file 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: 

3

 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.

5
U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, 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 Appellants,” 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 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 you

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. 420 (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 representative

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

6
requirement 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 representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request 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) Judicial 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. § 2302(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

7
disposition of allegations of a prohibited personnel 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.4 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). 

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 Place, 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 Appellants,” 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 representation in a given case. 

4

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court 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 whistleblower 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. 

8
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C. 

9