The opinion
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.
§ 1201.15 1 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. § 300.1 03.”) (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.