UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANN M. MCGOVERN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

PH-0752-16-0455-I-1

DATE: March 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert Fred Stone, Esquire, South Deerfield, Massachusetts, for the 

appellant.

Joshua R. Carver, Esquire, Augusta, Maine, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 jud ges 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
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FINAL ORDER

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

dismissed her removal appeal for lack of jurisdiction. 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 and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND 

¶2 The agency removed the appellant from her Secretary position, effective 

November 14, 2015, for refusal to take a required drug test. Initial Appeal File 

(IAF), Tab 8 at 11, 13-22. The appellant elected to challenge her removal 

through the equal employment opportunity (EEO) process by initiating counseling 

on December 28, 2015. Id. at 8. On March 29, 2016, the appellant was notified 

of her right to file a formal complaint, and she was advised that the filing 

deadline was April 20, 2016. IAF, Tab 5 at 12. However, she did not file her 

formal complaint of discrimination until May 6, 2016, fifteen days after the filing 

deadline. Id. The agency issued a final agency decision (FAD) on August 23,

2016, dismissing her complaint as untimely filed and notifying her that she had 
3

the right to appeal the agency’s procedural decision to the Equal Employment 

Opportunity Commission (EEOC), Office of Federal Operations (OFO), or to the 

appropriate U.S. district court. Id. Instead of filing as instructed, the appellant 

filed an appeal with the Board on September 6, 2016, challenging the agency’s 

decision to remove her from her Secretary position and asserting that the appeal 

was a mixed-case appeal. IAF, Tab 1. 

¶3 Without holding the requested hearing, the administrative judge issued an 

initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 15, Initial 

Decision (ID). She found that the appellant elected to challenge her removal by 

pursuing an EEO complaint, which was dismissed as untimely filed, and that she 

therefore was precluded from pursuing a Board appeal challenging the same 

adverse action. ID at 4. She also found that, to the extent the appellant argued 

that the doctrine of equitable tolling should be applied to find that her Board 

appeal was timely filed, the appeal was deemed timely filed. Id. The 

administrative judge found further that, although the appellant asserted that the 

Board should apply the doctrine of equitable tolling to her formal complaint of 

discrimination, the appellant provided no rule, regulation, law, or case in support 

of her claim. Id. Concluding, the administrative judge found that the appellant’s 

avenue of relief from the FAD’s dismissal based on untimeliness was to the 

EEOC’s OFO or to the appropriate U.S. district court, not to the Board, and that 

the Board defers to an employing agency’s timeliness decision. ID at 5. 

¶4 The appellant has filed a petition for review and a supplement to her 

petition. Petition for Review (PFR) File, Tabs 1, 3. The agency has filed a 

response. PFR File, Tab 7. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 In a mixed-case appeal, an employee may elect either to file a timely 

complaint of discrimination with her agency’s EEO office or timely file an appeal 

with the Board, but not both. 29 C.F.R. § 1614.302(b); see Crumpton v. 
4

Department of the Treasury, 98 M.S.P.R. 115, ¶ 10 (2004). Whichever is filed 

first is considered to be an election of that forum. Crumpton, 98 M.S.P.R. 115, 

¶ 10. When an employee elects to file a complaint with the agency’s EEO office, 

that office may dismiss a complaint that fails to comply with the applicable 

regulatory time limits. 29 C.F.R. § 1614.107(a)(2). An employee dissatisfied 

with such a dismissal then may appeal it to the EEOC or file a civil action in U.S.

district court, but not the Board. 29 C.F.R. § 1614.110(b). Because the Board 

defers to a FAD finding that a complaint was untimely filed when that decision 

was not appealed to the EEOC, a dismissal of an EEO complaint as untimely 

precludes the subsequent pursuit of a Board appeal challenging the same adverse 

action. McCoy v. U.S. Postal Service, 108 M.S.P.R. 160, ¶ 11 (2008).

¶6 On review, the appellant asserts that the administrative judge erred in 

dismissing her appeal as untimely filed and that the administrative judge instead 

should have dismissed her appeal for lack of jurisdiction. PFR File, Tab 3 at 5-6. 

However, the administrative judge explicitly found that, “[w]hile it initially 

appeared that her Board appeal challenging her November 14, 2015 removal was 

untimely, once she demonstrated that she was challenging the August 23, 2016 

FAD, her appeal was deemed timely.” ID at 2. Thus, her appeal was not 

dismissed as untimely filed, as alleged by the appellant. Rather, the 

administrative judge dismissed this appeal for lack of Board jurisdiction, which 

we find proper under the circumstances. ID at 1, 5; see McCoy, 108 M.S.P.R. 

160, ¶ 11. 

¶7 Next, the appellant argues that she erroneously filed her appeal with the 

Board—rather than with the EEOC—and that the Board therefore should remand 

her appeal for “review in light of 5 U.S.C. [§] 7702(f).” PFR File, Tab 3 at 4. 

Section 7702(f) provides that, when “an employee is required to file any action, 

appeal, or petition under this section and the employee timely files the action, 

appeal, or petition with an agency other than the agency with which the action, 

appeal, or petition is to be filed, the employee shall be treated as having timely 
5

filed the action, appeal, or petition as of the date it is filed with the proper 

agency.” The appellant appears to argue that, pursuant to this section, the Board 

should remand her appeal to the administrative judge for a determination that her 

appeal be deemed timely filed with the proper agency—the EEOC. PFR File, 

Tab 4 at 5-6. However, the appellant filed her appeal with the Board—not with 

an agency other than the Board—and that appeal was deemed timely filed. Under 

these circumstances, section 7702(f) is inapplicable to the Board’s processing of 

her appeal, and the Board is without authority to direct the EEOC’s processing of 

her appeal. 

¶8 Accordingly, we find the appellant has provided no basis upon which to 

disturb the initial decision.

NOTICE OF APPEAL RIGHTS3

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 

 

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.
6

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: 

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 particu lar 

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 
7

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 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 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 
8

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 

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.4The 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: 

 

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. 
9

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 wa rrants that 

any attorney will accept representation 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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board