UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 42

Docket No. AT-3443-13-0527-I-1

Paul G. Miranne,

Appellant,

v.

Department of the Navy,

Agency.

June 12, 2014

Paul G. Miranne, Pensacola, Florida, pro se.

Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

dismissed his initial appeal as untimely filed. See Petition for Review (PFR) File, 

Tab 1; Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 4-6. For the 

reasons that follow, we GRANT the appellant’s petition for review, VACATE the 

initial decision, and REMAND the initial appeal to the administrative judge for 

further adjudication consistent with this Opinion and Order.
2

BACKGROUND

¶2 This case involves whether the appellant filed a timely initial appeal with 

the Board after first filing a formal complaint of discrimination with the agency. 

The appellant filed a timely equal employment opportunity (EEO) complaint with 

the agency alleging retaliation based upon his prior EEO activity, and the agency 

accepted the following claims for investigation on the basis of retaliation: (1) the 

appellant’s nonselection for a supervisory position; (2) the agency’s failure to 

follow proper selection criteria for evaluating candidates for promotion; (3) the 

agency’s denial of official time for the appellant to work on his EEO complaints; 

and (4) the agency’s issuance of a letter of caution. IAF, Tab 6, Subtab 4a. In 

response to the agency’s notice of accepted issues, the appellant argued that the 

agency misconstrued the nature of his claims, and that it should have accepted his 

complaint as a mixed-case complaint because he was asserting both an 

employment practices appeal under 5 C.F.R. § 300.104(a) and reprisal-based 

claims of discrimination. IAF, Tab 12, Attachment 15; see 5 C.F.R. 

§ 300.104(a). 

¶3 The agency’s EEO Officer issued the appellant a letter on February 14, 

2012, informing him that the agency would not process his complaint as a 

mixed-case complaint because the agency did not believe that he had “allege[d] 

facts that would lead the Agency to conclude that [the] case[] [is a] mixed-case 

complaint[] warranting mixed case processing.” IAF, Tab 9 at 5-6. The agency 

further informed the appellant that his complaint would “continue to be processed 

as un-mixed . . . under 29 CFR, Part 1614,” and that “[i]f you disagree with this 

determination, you have the option to file an appeal with the Merit Systems 

Protection Board. Upon receipt of notification that the [Board] has assumed 

jurisdiction over this matter, the Agency will hold the processing of the 

above-referenced EEO complaint[] in abeyance until the [Board] issues a ruling.” 

Id. at 6. The appellant did not file a Board appeal at that time.
3

¶4 The agency issued a final agency decision (FAD) almost a year later

finding no discrimination. IAF, Tab 1 at 10. In its FAD, the agency provided the 

appellant with notice of his right either to appeal the agency’s decision to the 

Equal Employment Opportunity Commission’s (EEOC’s) Office of Federal 

Operations (OFO) or to file a civil action in U.S. district court.

1

 Id. at 11-13. 

The appellant, however, elected to file an appeal with the Board asserting an 

employment practices claim and raising claims of EEO retaliation and harmful 

procedural error. IAF, Tab 1. In response to the appeal, the agency argued, inter 

alia, that the appeal was untimely. IAF, Tab 7. Specifically, the agency argued 

that the appeal was untimely because it was filed more than 30 days after his

nonselection for the supervisory position in September 2011 and because it also

was filed more than 30 days after the agency informed him that it would not 

process his EEO complaint as a mixed-case complaint in February 2012. Id. at 

9-12 of 14. Additionally, noting that the appellant received the agency’s FAD on 

March 16, 2013, the agency argued that the appellant’s appeal, which was 

stamped received by the Board’s regional office on April 17, 2013, was filed 2 

days beyond the 30-day window set forth in 5 C.F.R. § 1201.154(b)(1). Id. at 

11-12 of 14.

¶5 The administrative judge issued an order directing the appellant to establish 

the timeliness of his appeal, and he specifically instructed the appellant to 

explain:

(1) why you did not file an appeal with the Board promptly after the 

agency notified you by letter dated February 14, 2012, that it did not 

 

1 Because the agency determined that the appellant did not file a mixed-case complaint, 

the appellant had the option of requesting either a FAD from the agency or a hearing 

before an EEOC administrative judge, who would issue a decision on the appellant’s 

discrimination claims, which the agency could accept or reject in a final order. See 29 

C.F.R. §§ 1614.109, 1614.110(a), (b). Under either scenario, the appellant would have 

the option of appealing to the EEOC’s OFO or filing a civil action in U.S. district court. 

See 29 C.F.R. §§ 1614.401(a), 1614.407.
4

accept your EEO complaint as a Mixed Case complaint, and told you 

that you had a right to file an appeal with the Board; and (2) if you 

believed (incorrectly) that you had the right to wait until after you 

received the final agency decision on your EEO complaint before 

filing your non-mixed case appeal, you still failed to timely file your 

appeal. 

IAF, Tab 8 at 2. In response, the appellant argued that he had filed a mixed-case 

complaint with the agency, thus making a binding election under 29 C.F.R. 

§ 1614.302(b), and that the agency “overstepped [its] authority” by requiring him 

to allege facts in his EEO complaint that, if proven, would establish Board 

jurisdiction. IAF, Tab 12 at 3. Citing the Board’s mixed case regulations, the 

appellant asserted that February 14, 2012, the date of the agency’s letter 

informing him that it would not process his complaint as a mixed-case complaint, 

“is not the effective date of the action being appealed,” and he argued that his 

Board appeal was timely filed within 30 days of his receipt of the FAD. Id. at 4-5 

(explaining that he received the FAD on March 16, 2013, and that his initial

appeal was postmarked on April 15, 2013).

¶6 The administrative judge issued an initial decision dismissing the 

appellant’s appeal as untimely filed without good cause shown. ID at 4-6. The 

administrative judge determined that, although the appellant filed a timely EEO 

complaint of discrimination with the agency, he was required to file his Board 

appeal within 30 days of receiving the agency’s February 14, 2012 decision not to 

process his complaint as a mixed-case complaint. See ID at 4 (“[T]he agency’s 

written notice that the appellant’s EEO complaint would not be processed as a 

mixed-case was – rightly or wrongly – the agency resolution of the mixed case 

complaint.”). Because the appellant waited over a year for the agency to issue a 

FAD before filing his Board appeal, the administrative judge concluded that the 

appellant’s appeal was untimely. Id. at 4-5. In support of his conclusion, the 

administrative judge found that the EEOC’s Management Directive 110 (EEOC 

MD-110) outlined the process the appellant should have followed when “the 
5

employing agency questions the Board’s jurisdiction in a mixed case complaint.” 

ID at 5. According to the administrative judge, EEOC MD-110, Chapter 4, 

§ II.B.4.b allows for “[t]he agency [to] hold the mixed case complaint in 

abeyance until the [Board] Administrative Judge rules on the jurisdictional issue, 

[to] notify the complainant that it is doing so, and [to] instruct him/her to bring 

the discrimination claim to the attention of the [Board].” Id. (quoting EEOC 

MD-110, Ch. 4, § II.B.4.b). Relying on this provision, the administrative judge

dismissed the appellant’s appeal as untimely filed because the appellant did not 

file his appeal with the Board within 30 days of the agency informing him that it 

did not believe he had filed a mixed-case complaint. Id. at 5-6.

¶7 The appellant has filed a petition for review in which he argues that his 

initial appeal was timely filed within 30 days of his receipt of the agency’s FAD. 

See PFR File, Tab 1. The agency has filed an opposition to the appellant’s 

petition for review. See PFR File, Tab 3. 2

ANALYSIS

The 30-day period for the appellant to file his initial appeal with the Board 

commenced as of the date he received the FAD.

¶8 An appeal of an agency action must generally be filed no later than 30 days 

after the effective date of the action being appealed, or 30 days after the date of 

the receipt of the agency’s decision, whichever is later. Montalvo v. U.S. Postal 

Service, 91 M.S.P.R. 671, ¶ 4 (2002); 5 C.F.R. § 1201.22(b). The procedures 

and filing deadlines for mixed cases, however, are somewhat different. 

Montalvo, 91 M.S.P.R. 671, ¶ 5. A mixed case arises when an appellant has been 

 

2 The appellant filed a reply in further support of his petition for review and an 

accompanying motion explaining why he did not file his reply within 10 days as 

required by 5 C.F.R. § 1201.114(e). See PFR File, Tab 4. Because we agree with the 

arguments contained within the appellant’s petition for review, we have not considered 

his reply, and his motion to accept his reply is DENIED as moot.
6

subject to an action that is appealable to the Board, and he alleges that the action 

was effected, in whole or in part, because of discrimination. Id. An appellant has 

two options when filing a mixed case: he may initially file a mixed-case 

complaint with the agency, followed by an appeal to the Board, or he may file a 

mixed-case appeal with the Board and raise his discrimination claim in 

connection with his appeal. See Montalvo, 91 M.S.P.R. 671, ¶ 5; 29 C.F.R. 

§ 1614.302(b), (d). An employee may file either a mixed-case complaint or a 

mixed-case appeal, but not both, and whichever is filed first is deemed to be the 

employee’s election to proceed in that forum. Montalvo, 91 M.S.P.R. 671, ¶ 5; 

29 C.F.R. § 1614.302(b).

¶9 When an employee files a timely mixed-case complaint with the agency, 

the employing agency must issue a FAD on the employee’s discrimination claims 

and provide the employee with notice of his right to file an appeal with the 

Board. 29 C.F.R. § 1614.302(d)(3). In such circumstances, an employee’s Board 

appeal must be filed with the Board within 30 days of his receipt of the agency’s

resolution or final decision on the discrimination issue. Montalvo, 91 M.S.P.R. 

671, ¶ 5; 29 C.F.R. § 1614.302(d)(3). Alternatively, if the agency has not 

resolved the employee’s discrimination claim or issued its FAD on the 

discrimination issue within 120 days, the appellant may file an appeal with the 

Board anytime thereafter. Montalvo, 91 M.S.P.R. 671, ¶ 5; 29 C.F.R. 

§ 1614.302(d)(1)(i). The Board has previously explained that, when an appellant 

files a timely formal discrimination complaint prior to appealing to the Board, the 

right to pursue such an appeal with the Board does not vest until the agency 

issues a final decision on the discrimination claim or 120 days have passed since 

the filing of the complaint. Moody v. U.S. Postal Service, 93 M.S.P.R. 151, ¶ 3 

(2002). 

¶10 As the appellant correctly pointed out before the administrative judge, IAF, 

Tab 12 at 3, the mixed-case regulations do not specifically address the time limit 

for filing a Board appeal when an agency informs the employee that it will not 
7

process his complaint of discrimination as a mixed case. We have reviewed both 

the Board’s and the EEOC’s decisions on this topic, and we agree with the 

appellant that there is no clear explanation of how an appellant should proceed 

after he learns that an agency will not process his complaint as a mixed case. The 

agency argues that the administrative judge correctly found that the appellant’s 

time to file a Board appeal commenced when the appellant received notice that 

the agency would not process his complaint as a mixed case, thus making his 

appeal untimely by over a year. PFR File, Tab 3 at 9; ID at 4-6. The appellant

argues that the time to file his appeal began when he received the FAD and that 

the agency’s interim notice that it would not process his complaint as a mixed 

case has no bearing on the timeliness of his appeal. PFR File, Tab 1 at 2. For the 

reasons that follow, we find the appellant’s approach is the better application of 

the mixed-case filing deadlines.

¶11 First, looking to the text of 5 U.S.C. § 7702, and its accompanying 

regulations, we cannot agree with the agency’s argument that the time for the 

appellant to file a Board appeal commenced prior to either the agency’s issuance 

of a FAD or the passage of 120 days from the date of the appellant’s filing of his 

EEO complaint with the agency. See, e.g., Fabros v. Office of Personnel 

Management, 80 M.S.P.R. 575, 577 (1999) (under the general rule of statutory 

construction, where the language of a statute itself is clear and unambiguous, that 

language is controlling absent a clearly expressed legislative intention to the 

contrary). Pursuant to 5 U.S.C. § 7702, “in the case of any employee or 

applicant for employment who (A) has been affected by an action which the 

employee or applicant may appeal to the Merit Systems Protection Board, and (B) 

alleges that a basis for the action was discrimination prohibited” by one of 

several enumerated federal anti-discrimination statutes, “the Board shall, within 

120 days of the filing of the appeal, decide both the issue of discrimination and 

the appealable action . . . .” 5 U.S.C. § 7702(a)(1); see Brown v. U.S. Postal 
8

Service, 81 M.S.P.R. 16, ¶ 7 (1999). Building upon these provisions, section

7702 further provides that:

[i]n any matter before an agency which involves (A) any action 

described in (1)(A) of [5 U.S.C. § 7702(a)]; and (B) any issue of 

discrimination prohibited under any provision of law described in

paragraph (1)(B) of [5 U.S.C. § 7702(a)], the agency shall resolve 

such matter within 120 days. The decision of the agency in any such 

matter shall be a judicially reviewable action unless the employee 

appeals the matter to the Board under paragraph (1) of [5 U.S.C. 

§ 7702(a)].

5 U.S.C. § 7702(a)(2).

¶12 Pursuant to this statutory framework, both the EEOC and the Board have

promulgated regulations further outlining the process to be followed in mixed 

cases depending on the employee’s election of forum. See 29 C.F.R. 

§ 1614.302(b); 5 C.F.R. §§ 1201.151-1201.154. If an employee elects to file a 

mixed-case complaint with the agency, and, “[i]f a final decision is not issued 

within 120 days of the date of filing of the mixed case complaint, the complainant 

may appeal the matter to the [Board] at any time thereafter as specified at 

5 C.F.R. § 1201.154(b)(2)[.]” 29 C.F.R. § 1614.302(d)(1)(i). Once the agency 

issues a final decision on the employee’s mixed-case complaint, however, the 

employee has 30 days from his receipt of the FAD to file his appeal with the 

Board. 29 C.F.R. § 1614.302(d)(1)(ii); 5 C.F.R. § 1201.154(b)(1). As noted 

previously, “[a]n aggrieved person may initially file a mixed case complaint with 

an agency . . . or an appeal on the same matter with the [Board] pursuant to 

5 C.F.R. § 1201.151 , but not both. . . . [and] whichever is filed first shall be 

considered an election to proceed in that forum.” 29 C.F.R. § 1614.302(b).

¶13 Our review of this process leads us to conclude that an appellant is 

precluded from filing a Board appeal challenging the same matter that is already 

the subject of a timely-filed discrimination complaint with an agency prior to

either the issuance of the agency’s FAD or the passage of 120 days. See 5 U.S.C. 

§ 7702(a)(2); Moody, 93 M.S.P.R. 151, ¶ 3 (when an appellant files a timely 
9

formal discrimination complaint with the agency prior to appealing to the Board, 

the right to pursue such an appeal does not vest until the agency issues a final 

decision on the discrimination complaint or 120 days have passed since the filing 

of the complaint); Cloutier v. U.S. Postal Service, 89 M.S.P.R. 411, ¶ 5 (2001)

(if the appellant filed a premature Board appeal after filing a timely complaint of 

discrimination with the agency, the administrative judge will dismiss the appeal

without prejudice to its later refiling under 5 C.F.R. § 1201.22); 29 C.F.R. 

§ 1614.302(d)(1)(i)-(ii); 5 C.F.R. § 1201.154(b)(1)-(2). Applying these timing 

principles, the Board has consistently dismissed appeals under 5 C.F.R. 

§ 1201.151 as premature when filed with the Board prior to either of these events. 

See Moody, 93 M.S.P.R. 151, ¶ 3; 5 C.F.R. § 1201.154(c). Accordingly, we find 

no support for the agency’s theory that the appellant should have filed an appeal 

with the Board prior to the issuance of a FAD or the passage of 120 days from the

filing of his EEO complaint with the agency.

¶14 Additionally, we disagree with both the administrative judge and the 

agency that a process exists for an agency to question whether an employee has 

filed a mixed-case complaint. See ID at 5 (citing EEOC MD-110, Ch. 4, 

§ II.B.4.b); see also IAF, Tab 9 at 5-6. It is the employee’s election of forum that 

governs the processing of a complaint, and not the manner in which the agency

processes the complaint. See French v. U.S. Postal Service, 80 M.S.P.R. 171, ¶ 6 

(1998) (an employee may not file both a formal EEO complaint with the agency 

and an appeal with the Board regarding the same action, and whichever is filed 

first is considered an election to proceed in that forum); 29 C.F.R. § 1614.302(b); 

see also Lang v. Merit Systems Protection Board, 219 F.3d 1345, 1347-48 (Fed. 

Cir. 2000) (“The mere erroneous prior treatment of Lang’s complaint by the EEO 

and subsequent erroneous treatment of Lang’s appeal by the MSPB cannot turn 

Lang’s clearly pled mixed case complaint into one subject to the appellate timing 

rules of a non-mixed case complaint.”). If, after a purported mixed-case appeal is 

filed, the Board determines that it does not have jurisdiction over the appeal, the 
10

complaint will be returned to the agency for processing as a nonmixed 

discrimination complaint. Blickenstaff v. Department of Justice, EEOC Appeal 

No. 01A42427, 2004 WL 1084919, at *2 (E.E.O.C. 2004) (finding that, if the 

Board dismisses a purported mixed-case appeal for lack of jurisdiction, the 

agency must recommence processing the matter as a nonmixed-case complaint); 

see Murray v. Department of Defense, 92 M.S.P.R. 361, ¶ 12 (2002) (in addition 

to prudential constraints of ripeness and finality, the Board is statutorily 

precluded from issuing advisory opinions) (citing 5 U.S.C. § 1204(h)). 

¶15 Here, the appellant filed a timely discrimination complaint with the agency

first, and he subsequently filed an appeal with the Board based upon his belief 

that he had filed a mixed-case complaint with the agency. We find that the 

agency incorrectly instructed the appellant to file a Board appeal prior either to 

the agency’s issuance of a FAD or the passage of 120 days for the limited 

purpose of ascertaining from the Board whether he had filed a mixed-case 

complaint within the Board’s jurisdiction. See IAF, Tab 9 at 5-6. Rather, we 

conclude that the appellant’s time to file a Board appeal commenced when he 

received the FAD. Based upon our analysis above, we find the agency’s 

suggestion, that the appellant should have simultaneously maintained both a

complaint of discrimination with the agency and a Board appeal on the same 

issue, is inconsistent with both the mixed-case procedures and the principles of 

judicial economy and adjudicatory efficiency. See, e.g., Elgin v. Department of 

Treasury, 132 S. Ct. 2126, 2135 (2012) (criticizing and rejecting a proposed 

reading of the Civil Service Reform Act of 1978 which would have “create[d] the 

possibility of parallel litigation regarding the same agency action before the 

MSPB and a district court”); Bean v. U.S. Postal Service, 120 M.S.P.R. 447,

¶¶ 5-6 (2013) (dismissing a subsequent appeal on the grounds of adjudicatory 

efficiency which raised the same issues as an earlier appeal which was awaiting a 

decision on petition for review). The administrative judge’s initial decision 

dismissing the initial appeal as untimely filed is therefore VACATED.
11

The appellant timely filed the initial appeal with the Board’s regional office

within 30 days of his receipt of the FAD.

¶16 The agency argued below that, even if the appellant’s 30-day period to file 

his Board appeal began as of the date he received the FAD, the appeal should still 

be dismissed as untimely because it was stamped as received by the Board’s 

regional office on April 17, 2013, 2 days beyond the 30-day filing period. See

IAF, Tab 7 at 11-12. Although the administrative judge did not address this issue 

in his initial decision, for the reasons that follow, we also find that the appellant 

timely filed his appeal under 5 C.F.R. § 1201.154(b)(1).

¶17 If an appellant filed a timely discrimination complaint with the agency and 

received a FAD on that complaint, he must file an initial appeal with the Board 

within 30 days of his receipt of the agency’s resolution or final decision on the 

discrimination issue. As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76, ¶ 20 

(2000); 5 C.F.R. § 1201.154(b)(1). The record reflects, moreover, that the 

agency issued its FAD on March 7, 2013, and the parties agree that the appellant 

received the FAD on March 16, 2013,

3 thus requiring that the appellant file his

appeal with the Board no later than April 15, 2013. See IAF, Tab 1 at 27 (FAD 

certificate of service); IAF, Tab 12 at 5; IAF, Tab 7 at 11-12. The record reflects 

that the appellant mailed his initial appeal on April 15, 2013. IAF, Tab 12 at 5 

and Attachment 16 (evidence of postmark). Because the appellant’s initial appeal 

was postmarked on April 15, 2013, we find that he timely filed his appeal with 

the Board under 5 C.F.R. § 1201.154(b)(1). See McDavid v. Department of 

 

3 We have been unable to locate any evidence in the record reflecting when the 

appellant received the FAD. Both the agency and the appellant, however, have stated 

that the appellant received the FAD on March 16, 2013. See IAF, Tab 12 at 5 

(appellant’s assertion that he received the FAD on March 16, 2013); IAF, Tab 7 at 

11-12 (agency assertion that appellant received the FAD on the same date). Because 

the parties agree that the appellant received the FAD on March 16, 2013, we have based 

our timeliness assessment of the appeal on this date. Cf. 5 C.F.R. § 1201.63 (parties 

may stipulate to any matter of fact). 
12

Labor, 64 M.S.P.R. 304, 306 (1994) (the date of filing of a mailed submission 

ordinarily is the postmark); 5 C.F.R. § 1201.4(l) (“The date of filing by mail is 

determined by the postmark date.”).

The appeal is remanded to the administrative judge for an assessment of the 

Board’s jurisdiction over the appeal.

¶18 Although we find that the appellant filed a timely appeal with the Board, 

the issue of the Board’s jurisdiction over the appeal remains outstanding.

Because the administrative judge did not address the issue of the Board’s 

jurisdiction below, see ID at 1 n.1, we find it appropriate to REMAND the appeal 

to the administrative judge for an adjudication of the Board’s jurisdiction over the 

appeal. On remand, the administrative judge should give the parties an 

opportunity to supplement their arguments concerning the Board’s possible

jurisdiction over the appellant’s employment practices appeal under 5 C.F.R. 

§ 300.104. See, e.g., Sauser v. Department of Veterans Affairs, 113 M.S.P.R. 

403, ¶¶ 6-7 (2010) (describing the Board’s jurisdictional analysis under 5 C.F.R. 

§ 300.104(a)). Should the administrative judge find that the appellant has 

established the Board’s jurisdiction over his appeal, then the administrative judge 

should address whether the appellant can raise his claims of EEO retaliation in 

connection with an employment practices appeal before the Board under 5 C.F.R. 

§ 300.101, et seq. See, e.g., Meeker v. Merit Systems Protection Board, 319 F.3d 

1368, 1374 (Fed. Cir. 2003) (“In challenges to employment practices, the relevant 

[Office of Personnel Management] regulation, 5 C.F.R. § 300.104(a), does not 

give the Board jurisdiction over any and all legal challenges to employment 

practices; it grants jurisdiction to the Board only with respect to challenges based 

on the three grounds set forth in 5 C.F.R. § 300.103.”) (citations omitted). We 

leave it to the administrative judge to make these determinations in the first 

instance.
13

ORDER

¶19 For the aforementioned reasons, the administrative judge’s initial decision 

dismissing the appeal as untimely filed is VACATED, and the appeal is 

REMANDED to the administrative judge for further adjudication consistent with 

this Opinion and Order.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.