Jason Hemann v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 46

Docket No. CH-0714-21-0067-I-1

Jason Hemann,

Appellant,

v.

Department of Veterans Affairs,

Agency.

December 20, 2022

Jennifer Duke Isaacs, Atlanta, Georgia, for the appellant.

Dane R. Roper, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the in itial decision,

which dismissed his removal appeal for lack of jurisdiction because a statutory

filing deadline was not met and equitable tolling was not appropriate. For the

reasons discussed below, we GRANT the petition for review, VACATE the initial

decision, FIND that equitable tolling applies to the facts before us, and REMAND

the appeal to the Central Regional Office for adjudication on the merits.

2

BACKGROUND

¶2 The appellant was employed with the agency as a GS-12 Auditor in

St. Louis, Missouri. Initial Appeal File (IAF), Tab 1 at 1, Tab 8 at 51. On

October 14, 2020, the agency issued a decision notice informing the appellant

that, effective October 23, 2020, it was removing him from his position under the

authority of 38 U.S.C. § 714 based on a charge of inappropriate conduct. IAF,

Tab 8 at 59. The decision notice informed the appellant of his right to appeal to

the Board and stated that such an appeal could be filed “at any time” after he

received the decision notice, “but not later than 30 calendar days after the

separation has been effected, or 30 calendar days after the date of [his] receipt of

this decision, whichever is later.” 1 Id. at 59-60.

¶3 On November 23, 2020, the appellant filed the instant appeal with the

Board, arguing that the decision to remove him was “unsupported” and “the result

of discrimination” and that the penalty of removal was “too harsh for the conduct

charged.” IAF, Tab 1 at 4. He also requested a hearing. Id. at 2. Observing that

it appeared that the appeal was not filed within 10 business days of the effective

date of the agency action as prescribed by 38 U.S.C. § 714(c)(4)(B), the

administrative judge ordered the appellant to file evidence and/or argument

showing that his appeal was timely filed, or that, because the Board cannot waive

an untimely filing for good cause when the filing deadline is statutory, another

basis for a waiver of the deadline, such as equitable tolling, existed. IAF, Tab 3

at 1-3.

1

At the end of the decision notice, there is a line for an employee to sign

acknowledging receipt of the notice. IAF, Tab 8 at 61. In the copies of the decision

notice included in the record, the appellant’s signature does not appear on that page

acknowledging receipt. IAF, Tab 1 at 9, Tab 8 at 61. At no point does the appellant

argue that he did not receive the decision prior to the October 23, 2020 effective date.

Thus, the relevant date for a timeliness inquiry is October 23, 2020.

3

¶4 In response to the timeliness order, the appellant argued that equitable

tolling should apply because the agency’s removal decision “specifically and

clearly informed [the] [a]ppellant that his deadline to file was 30 days from the

effective date of his removal.” IAF, Tab 6 at 5. He asserted that, because his

removal was effective October 23, 2020, the filing deadline was November 22,

2020, and that he had “attempted to file his appeal on Friday, November 20, 2020,

however the MSPB’s website and e-appeal system were both down [and]

remained down throughout the weekend.” Id. He further asserted that he

successfully filed his appeal of his removal on Monday, November 23, 2020, “th e

first business day following his deadline to file.” Id. In sum, he argued that he

“followed all instructions provided by the [a]gency and diligently pursued his

case[] based on the information provided to him by the [a]gency” and that

“improper instructions from the [a]gency are the only reason” that he missed the

10-day filing deadline set forth in section 714. Id.

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

initial decision finding that the appellant’s initial appeal was untimely filed under

38 U.S.C. § 714(c)(4)(B) and that equitable tolling was not warranted because,

among other reasons, the agency’s inclusion of incorrect appeal rights was an

“inadvertent mistake.” IAF, Tab 10, Initial Decision (ID) at 4-7. Accordingly,

the administrative judge dismissed the appeal for lack of jurisdiction. 2 ID at 2, 8.

¶6 The appellant has filed a petition of review, wherein he argues that the

administrative judge erred in concluding that equitable tolling does not apply to

2

Both the Board and our reviewing court have held that time prescriptions are not

jurisdictional. Kirkendall v. Department of the Army, 479 F.3d 830, 842 (Fed. Cir.

2007) (en banc); Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 13

(2014). Although the administrative judge found that the appeal was untimely filed and

dismissed the appeal for lack of jurisdiction, ID at 2, we need not reach the question of

whether this was an appropriate disposition because, as set forth below, we find that the

statutory filing deadline should be equitably tolled, and we remand the case for

adjudication on the merits.

4

waive the 10-day filing deadline because it was reasonable for him to rely on the

appeal rights provided by the agency, and that the Board has jurisdiction over his

appeal. Petition for Review (PFR) File, Tab 1 at 7-11. 3 The agency has

responded in opposition to the appellant’s petition for review. PFR File, Tab 3.

ANALYSIS

The appeal was untimely filed.

¶7 Pursuant to 38 U.S.C. § 714(a)(1), “[t]he Secretary [of the Department of

Veterans Affairs] may remove, demote, or suspend a covered individual . . . if the

Secretary determines the performance or misconduct of the covered individual

warrants such removal, demotion, or suspension.” A “covered individual” is an

individual occupying a position with the agency, with four exceptions not

relevant here. Ledbetter v. Department of Veterans Affairs, 2022 MSPB 41, ¶ 6;

see 38 U.S.C. § 714(h)(1)(A)-(D). Such an individual may appeal to the Board

any removal, demotion, or suspension of more than 14 days. 38 U.S.C.

§ 714(c)(4)(A); Ledbetter, 2022 MSPB 41, ¶ 6. However, an appeal “may only be

made if such appeal is made not later than 10 business days after the date of such

removal, demotion, or suspension.” 38 U.S.C. § 714(c)(4)(B); Ledbetter,

2022 MSPB 41, ¶ 6. In calculating the filing deadline under section 714,

weekends and holidays are excluded. Ledbetter, 2022 MSPB 41, ¶ 7 n.2.

¶8 Here, it is undisputed that the effective date of the appellant’s removal was

October 23, 2020. IAF, Tab 8 at 59. Under 38 U.S.C. § 714(c)(4)(B), his appeal

was due no later than 10 business days later, on November 6, 2020. 4 The

3

In his petition for review, the appellant also reasserts his claim from below that

removal was not a reasonable penalty under the circumstances. PFR File, Tab 1

at 11-16. Because we are remanding this appeal for adjudication on the merits, we need

not address the penalty here.

4

As briefly explained above, the appellant contended in his initial appeal that his

removal was “the result of discrimination.” IAF, Tab 1 at 4. In Davis v. Department of

Veterans Affairs, 2022 MSPB 45, ¶ 17, we held that an appellant who files an appeal of

5

appellant filed his appeal on November 23, 2020, and, thus, his appeal was

untimely filed by 17 calendar days. IAF, Tab 1; see 38 U.S.C. § 714 (c)(4)(B).

The issue before us is whether there is any basis to waive or toll the statutory

filing deadline.

The statutory filing deadline should be equitably tolled in this matter.

¶9 The Board has set forth three scenarios under which it will waive a filing

deadline prescribed by statute or regulation: (1) the statute or regulation itself

specifies circumstances in which the time limit will be waived; (2) an agency’s

affirmative misconduct precludes it from enforcing an otherwise applicable

deadline under the doctrine of equitable estoppel, unless the application of

equitable estoppel would result in the expenditure of appropriated funds in

contravention of statute; and (3) an agency’s failure to provide a mandatory

notice of election rights warrants the waiver of the time limit for making the

election. Ledbetter, 2022 MSPB 41, ¶ 8; see Blaha v. Office of Personnel

Management, 106 M.S.P.R. 265, ¶ 8 (2007); Speker v. Office of Personnel

Management, 45 M.S.P.R. 380, 385 (1990), aff’d, 928 F.2d 410 (Fed. Cir. 1991)

(Table), and modified by Fox v. Office of Personnel Management, 50 M.S.P.R.

an adverse action taken pursuant to 38 U.S.C. § 714 and alleges violations of equal

employment opportunity (EEO) statutes in the first instance before the Board has filed a

mixed case, which is governed by the procedures and the timelines established by

5 U.S.C. § 7702 and its implementing regulations, and not 38 U.S.C. § 714. We further

held that the Board’s implementing regulations, which provide for a 30-day filing

period for mixed-case appeals, apply to mixed-case appeals under 38 U.S.C. § 714 that

are filed directly with the Board. Davis, 2022 MSPB 45, ¶¶ 8-9, 19. Although we are

unable to discern from the current state of the record whether this is a mixed case,

based on his initial filing, it appears that the appellant may have been attempting to

bring a mixed case. IAF, Tab 1 at 4. However, the administrative judge did not have

the benefit of our holding in Davis to prompt him to further inquire into the nature of

the appellant’s allegations to determine whether, in fact, the appellant brought a

mixed-case appeal before the Board. Nonetheless, we need not determine whether this

is a mixed case and, thus, whether it was timely filed pursuant to Davis, because a

remand for adjudication on the merits is otherwise warranted based on our application

of equitable tolling.

6

602, 606 n.4 (1991). Additionally, the doctrine of equitable tolling may be

available under certain circumstances to toll a statutory deadline in an untimely

filed appeal. Ledbetter, 2022 MSPB 41, ¶ 8; Wood v. Department of the Air

Force, 54 M.S.P.R. 587, 593 (1992).

¶10 In Ledbetter, the Board concluded that the first and third bases discussed

above did not apply to an appeal of an action taken under section 714. Ledbetter,

2022 MSPB 41, ¶¶ 9-10. Specifically, regarding the first basis for waiver, the

filing deadline cannot be waived because 38 U.S.C. § 714 does not provide for

waiver. Id., ¶ 9. Regarding the third basis, the statute does not require the

agency to notify its employees of their election rights or any associated filing

deadlines. Id., ¶ 10. However, the Board concluded in Ledbetter that the

deadline set forth in section 714 could be subject to equitable estoppel or

equitable tolling and that it was inclined to believe that equ itable tolling is

available in appeals of actions taken under section 714 under appropriate

circumstances. Id., ¶¶ 11, 14. Given that the requirements to establish equitable

tolling are less stringent than the requirements to establish equitable estoppel , we

analyze whether the appellant meets the lower burden of establishing that

equitable tolling is warranted under the circumstances presented here. See id.,

¶ 12.

¶11 The U.S. Supreme Court has held that there is a rebuttable presumption that

the doctrine of equitable tolling can be invoked in certain circumstances to excuse

an untimely filed lawsuit against the Government. See Irwin v. Department of

Veterans Affairs, 498 U.S. 89, 95-96 (1990). Such circumstances include

situations in which an appellant “has actively pursued his judicial remedies by

filing a defective pleading during the statutory period,” or when an appellant “has

been induced or tricked by his adversary’s misconduct into allowing the filing

deadline to pass.” Id. at 96; see Ledbetter, 2022 MSPB 41, ¶ 12. As it must, the

Board has followed the Supreme Court’s jurisprudence in this area. See, e.g.,

7

Ledbetter, 2022 MSPB 41, ¶ 12; Heimberger v. Department of Commerce,

121 M.S.P.R. 10, ¶ 10 (2014); Wood, 54 M.S.P.R. at 593.

¶12 The administrative judge observed that “the statute makes clear it provides

for an expedited appeal process,” and he concluded that equitable tolling should

not apply in the instant case. ID at 6-7. In arriving at this conclusion, he

reasoned that the decision notice “mistakenly cited the wrong information with

regard to the filing deadline” but that there was no evidence to suggest that the

mistake was “intentional or rose to the level of affirmative misconduct on the

agency’s part to reach the high bar required under principles of equi table tolling.”

ID at 7. He also noted the agency’s argument that language in the decision notice

referred the appellant “to the MSPB website for information regarding the appeals

process and procedures that must be followed.” ID at 4 (quoting IAF, Tab 8

at 60); IAF, Tab 7 at 5. He stated that the information at the Board’s website at

the hyperlink provided in the decision notice specifies that an appellant has

10 business days to file an appeal following an adverse action taken under

38 U.S.C. § 714. ID at 4; IAF, Tab 8 at 60. Lastly, the administrative judge also

considered that the appellant was represented by legal counsel at the outset of his

appeal, but he reasoned that an appellant is personally responsible for the diligent

prosecution of his appeal, even if he is represented. ID at 4 -5 (citing Taylor

v. U.S. Postal Service, 53 M.S.P.R. 27, 28-29 (1992)). Although he

acknowledged “the confusion attributable to the erroneous information regarding

filing deadlines contained in the decision letter,” the administrative judge

ultimately concluded that the case did not present facts that would “serve to

excuse strict adherence to the 10-day filing deadline required under § 714.”

ID at 5, 7.

¶13 As noted previously, in his petition for review, the appellant reiterates his

argument that equitable tolling should apply. PFR File, Tab 1 at 7-10. He argues

that the administrative judge ignored the fact that he complied with the 30 -day

deadline set forth in the decision notice and that the administrative judge’s

8

finding that the appellant should have known the deadline was incorrect b ecause

the statute provides for an expedited process “falls well outside any reasonable

expectation of due diligence on [the] [a]ppellant’s part.” Id. at 9. The appellant

also claims that he “made every effort to actively pursue his [remedies before the

Board] based on the information contained in the [decision notice] .” Id. at 10.

¶14 Although we acknowledge that equitable tolling is a “rare remedy,”

Heimberger, 121 M.S.P.R. 10, ¶ 10; see Irwin, 498 U.S. at 96, we agree with the

appellant that its application is appropriate under the circumstances of this case.

We have considered the administrative judge’s reasoning that the incorrect appeal

rights provided by the agency were the result of an “inadvertent mistake” and that

the unintentional error did not constitute affirmative misconduct sufficient to

invoke equitable tolling. However, the administrative judge does not cite any

legal authority to support the proposition that maliciousness or ill intent is

required to invoke equitable tolling based on a claim that a party was “induced or

tricked by his adversary’s misconduct into allowing the filing deadline to pass.”

See Irwin, 498 U.S. at 96. Nor does the agency cite to any authority to support

such a proposition.

¶15 Furthermore, our research has not revealed such a requirement, and the

limited jurisprudence is, at a minimum, silent on the question of motive . For

example, in setting forth the scenarios to which equitable tolling applies, the

Supreme Court in Irwin relied on its prior decision in Glus v. Brooklyn Eastern

District Terminal, 359 U.S. 231 (1959). See Irwin, 498 U.S. at 96 n.4. In Glus,

the petitioner alleged that an employer’s representative either “fraudulently or

unintentionally” misled him to believe that he could bring an action within

7 years after the cause of action “accrued,” despite a statutory filing deadline of

3 years. Glus, 359 U.S. at 231-32 & n.2. Silent on the employer’s

representative’s motive, the Court stated that “[t]o decide the case we need look

no further than the maxim that no man may take advantage of his own wrong.”

Id. at 232. The Court held that the petitioner was entitled to have his case tried

9

on the merits if he could prove his allegations that he was “justifiably misled into

a good-faith belief that he could begin his action at any time within [7] years after

it had accrued.” Id. at 235. Thus, in Glus, equitable tolling was applied without

regard to the opposing party’s motive.

¶16 In other cases, our reviewing court and the Board have discussed what

might trigger the application of equitable tolling without any discussion of the

motive behind opposing parties’ actions, even when the application of equitable

tolling was ultimately denied. In Frazer v. U.S., 288 F.3d 1347, 1349-50 (Fed.

Cir. 2002), our reviewing court considered whether equitable tolling should be

applied when former shareholders and directors of a defunct financial institution

brought suit against the United States approximately 9 months after the applicable

statute of limitations ran. However, the appellants did not allege any misconduct

on the part of the Government, and the court ultimately did not apply equitable

tolling. Id. at 1353-54. The court remarked, without mention of motive, that

equitable tolling “is available only when the lateness is attributable, at least in

part, to misleading [G]overnmental action.” Id. at 1353-54. Notably, the court

distinguished equitable tolling from equitable estoppel, concluding that “the

requirements for equitable estoppel are even more stringent; equitable estoppel

requires affirmative [G]overnmental misconduct.” Id. at 1354.

¶17 Similarly, in Heimberger, after the statutory period for filing an individual

right of action (IRA) appeal had passed, the appellant filed a request to reopen

her case with the Office of Special Counsel (OSC), OSC denied the request, and

the appellant filed an IRA appeal with the Board, arguing that she filed a timely

appeal because timeliness should be calculated from the date of OSC’s denial of

her request to reopen, rather than from the date of OSC’s initial close-out letter.

121 M.S.P.R. 10, ¶¶ 2-4. The Board examined the language in the original OSC

close-out letter, noting that it notified the appellant of her Board appeal rights and

the time limit for pursuing them, and invited her to seek reconsideration directly

from OSC. Id., ¶ 12. Because the OSC letter appeared to have given the

10

appellant two options for further action, but did not inform her of the

consequences of electing one versus the other, the Board acknowledged that a

reasonable person might have been affirmatively misled by this language into

seeking reconsideration from OSC while the filing period with the Board

continued to run. Id. Without regard to OSC’s motive in drafting the close-out

letter, the Board reasoned that such a circumstance would constitute a t least an

arguable basis for equitable tolling. Id. Nonetheless, because the appellant in

Heimberger resigned herself to the close-out decision for over a year before she

started to pursue the matter again with OSC, the Board concluded that the

appellant failed to show a sufficient basis to toll the filing deadline. Id.

¶18 None of the above-discussed cases, or any others identified by the Board,

suggest that an opposing party’s misconduct or misleading language must be

committed or provided with maliciousness or ill intent in order to trigger

equitable tolling. Rather, they simply suggest that when a party takes an action

or provides language that misleads an adversary, that party may not benefit from

that action.

¶19 Here, it cannot be reasonably disputed that the agency’s language informing

the appellant that he had 30 calendar days from the effective date of his removal

or 30 calendar days from his receipt of the removal notice, whichever was later,

to appeal his removal to the Board misled him into believing that a 30-day filing

period was permitted. The agency’s inclusion of a reference to the Board’s

website, which included accurate information on the filing period, or the

appellant’s reliance on counsel does not change this analysis. As such, we find

that the underlying facts establish that the agency “induced or tricked” the

appellant into allowing the statutorily required 10-day filing deadline to pass.

See Irwin, 498 U.S. at 96. Accordingly, we find that the circumstances of this

case warrant the equitable tolling of the filing deadline.

11

¶20 Further, it appears undisputed that the appellant filed his appeal within the

30-day period provided to him by the agency, 5 and the evidence suggests that he

actually had attempted to file his appeal several days before the 30 -day period

was set to expire, but was not able to do so because the Board’s e -Appeal system

was down. 6 IAF, Tab 6 at 11-12. Thus, we find that the appellant acted with due

diligence within the filing period that he reasonably believed to be correct. Cf.

Ledbetter, 2022 MSPB 41, ¶ 13 (declining to apply the doctrine of equitable

tolling even when the agency provided incorrect appeal rights because the

appellant failed to show that he filed his appeal within the incorrect timeframe

provided by the agency). Based on the foregoing, we find that the appellant is

entitled to have the statutory 10-day filing deadline equitably tolled. See Irwin,

498 U.S. at 96; Heimberger, 121 M.S.P.R. 10, ¶ 10.

5

The appellant’s removal was effective October 23, 2020. IAF, Tab 8 at 59. Thus,

under a 30-day filing deadline, the appeal needed to be filed on or before November 22,

2020. However, November 22, 2020, was a Sunday, and the Board’s regulations

provide that, “[i]f the date that ordinarily would be the last day for filing falls on a

Saturday, Sunday, or Federal holiday, the filing period will include the first workday

after that date.” 5 C.F.R. § 1201.23. As such, the appellant’s filing on Monday,

November 23, 2020, is a timely filed appeal under a 30-day filing period.

6

The Board’s records corroborate the appellant’s claim that its e-Appeal system was

down during this time period.

12

ORDER

¶21 Accordingly, we vacate the initial decision, find that equitable tolling

applies to the facts before us, and remand the appeal to the Central Regional

Office for adjudication on the merits.

FOR THE BOARD:

/s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.