Percy Ledbetter v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 41

Docket No. PH-0714-18-0119-I-1

Percy M. Ledbetter,

Appellant,

v.

Department of Veterans Affairs,

Agency.

December 12, 2022

Anthony F. Jeselnik, Esquire, Pittsburgh, Pennsylvania, for the appellant.

Sara Elizabeth Aull, Esquire, Pittsburgh, Pennsylvania, 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 initial decision, which

dismissed his removal appeal as untimely filed. For the reasons discussed below,

we DENY the petition for review and AFFIRM the initial decision as MODIFIED

by this Opinion and Order to clarify the analysis of the Board’s authority to waive

or toll the filing deadline of an appeal filed under 38 U.S.C. § 714, still

dismissing the appeal as untimely filed.

2

BACKGROUND

¶2 Effective November 8, 2017, the agency removed the appellant from his

Housekeeping Aid Supervisor position in its Pittsburgh Healthcare System

under the authority of the Department of Veterans Affairs Accountability

and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.

No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified at 38 U.S.C. § 714).

Initial Appeal File (IAF), Tab 15 at 13, Tab 18 at 11. In its decision letter, the

agency advised the appellant that he could file an appeal with the Board

challenging the removal decision no later than 30 calendar days after the effective

date of the action or 30 calendar days after his receipt of the decision, whichever

was later. 1 IAF, Tab 15 at 15. The appellant acknowledged receipt of the

decision on November 8, 2017, the same day as the effective date of his removal.

IAF, Tab 15 at 17, Tab 18 at 11. The appellant filed the present appeal on

December 22, 2017. IAF, Tab 1.

¶3 After holding the requested hearing on the merits of the removal action, the

administrative judge issued a show cause order, indicating that it appeared that

the appellant did not timely file his appeal. IAF, Tab 21 at 1 , Tab 24, Hearing

Audio. She acknowledged that the agency incorrectly advised the appellant that

he had 30 calendar days—as opposed to the 10 business days set forth in

38 U.S.C. § 714—to file his Board appeal. IAF, Tab 21 at 1-2. She noted,

however, that the appellant filed the appeal 14 days after the incorrect later

deadline set by the agency. Id. at 2. As a result, she afforded the appellant an

opportunity to demonstrate good cause for the delay in filing. Id. at 2-3. The

appellant responded to the show cause order, and the agency submitted a reply to

the appellant’s response. IAF, Tabs 22-23.

1

In the appeal rights section of the decision letter, the agency referred to the adverse

action as a demotion rather than as a removal, which appears to be an oversight. IAF,

Tab 15 at 15.

3

¶4 After consideration of the pleadings, the administrative judge issued an

initial decision, dismissing the appeal as untimely filed. IAF, Tab 25, Initial

Decision (ID). She found that the issue of Board jurisdiction, including the

timeliness of an appeal, is always before the Board and may be raised by either

party, or sua sponte by the Board, at any time. ID at 3. She also found that,

based on the language of the statute, it did not appear that the time limit for filing

an appeal under 38 U.S.C. § 714 could be waived upon a showing of good cause

for the delay. Id. She further found that an agency’s incorrect statement

concerning appeal rights does not confer jurisdiction over an appeal, and that,

even if equitable estoppel could apply to allow the filing within the 30 calendar

days provided by the agency, his appeal was filed 14 days beyond th at incorrect

deadline. Id. She dismissed the appellant’s arguments that the timeliness

requirement should be waived because neither the agency, nor the Board, raised

the timeliness issue until the hearing and because the agency was not prejudiced

by his late filing. ID at 3-4. She found that, other than his pro se status, the

appellant offered no justification for his untimely filing and that, even u sing a

30-day filing period, his 14-day delay was not minimal. ID at 4. Accordingly,

she dismissed the appeal. ID at 5.

¶5 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has responded in opposition. PFR File, Tab 3.

ANALYSIS

The appellant’s appeal was untimely filed.

¶6 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 at the agency, with four exceptions not relevant

here. See 38 U.S.C. § 714(h)(1)(A)-(D). Such individual may appeal to

4

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

§ 714(c)(4)(A). 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).

¶7 Here, the effective date of the appellant’s removal was November 8, 2017.

IAF, Tab 18 at 11. Under 38 U.S.C. § 714(c)(4)(B), his appeal was due on or

before November 24, 2017. 2 The appellant filed his appeal on December 22,

2017, and, thus, his appeal was untimely filed by 28 calendar days. IAF, Tab 1;

see 38 U.S.C. § 714(c)(4)(B). The remaining question, therefore, is whether the

Board may waive or toll this statutory deadline.

There is no basis to waive or toll the filing deadline.

¶8 The Board has enumerated the following three bases for waiving 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. 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. 602, 606 n.4 (1991). The Board also has

recognized that the doctrine of equitable tolling may be available under certain

2

In calculating the deadline, we excluded weekends and the following two holidays that

fell within the filing period: Veterans Day and Thanksgiving Day.

5

circumstances to toll a statutory deadline in an untimely filed appeal. See Wood

v. Department of the Air Force, 54 M.S.P.R. 587, 593 (1992).

¶9 Here, the first and the third bases for waiving the deadline are controlled

by the language of the statute itself. As to the first basis for waiver, under

38 U.S.C. § 714(c)(4)(B), an appeal of a removal, demotion, or suspension of

more than 14 days must be made “not later than 10 business days after” the

effective date of the action. In setting this deadline, Congress made no provision

for the acceptance of late filings. Appeals filed under section 714, therefore, are

unlike petitions for review of initial decisions, in which Congress specifically

provided for an extension of the time limit “for good cause shown.” 5 U.S.C.

§ 7701(e)(1). Thus, we find that the statutory time limit for filing an appeal

under 38 U.S.C. § 714 cannot be waived under the first basis because Congress

did not provide for it. See Wood, 54 M.S.P.R. at 592 (concluding that the time

limit for filing an individual right of action (IRA) appeal cannot be waived for

good cause shown because the Whistleblower Protection Act (WPA) did not

provide for the acceptance of late filings).

¶10 As to the third basis for waiver, 38 U.S.C. § 714 does not require the

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

associated with those elections. Moreover, the Board has not promulgated

regulations governing appeals under the VA Accountability Act and, thus, there is

no regulatory notice requirement. Therefore, because the agency was under no

obligation to provide the appellant with a notice of election rights, the third basis

for waiver is inapplicable here. See Speker, 45 M.S.P.R. at 385-86 (finding that

the Office of Personnel Management’s failure to notify an appellant of her right

to elect an alternative annuity did not form a basis for waiving a filing deadline

when the applicable statute and regulations in effect at the time did not require it

to provide such notice).

¶11 Although the statutory filing deadline prescribed by 38 U.S.C. § 714 cannot

be waived under the first or the third basis, the deadline potentially could be

6

subject to equitable estoppel (the second basis for waiver) or equitable tolling.

See Wood, 54 M.S.P.R. at 592-93. Both doctrines allow a statutory deadline to be

excused based on equitable considerations. See, e.g., id.; Speker, 45 M.S.P.R.

at 385. However, the application of equitable relief to excuse a statutory deadline

may not always be available against the Government. See Kirkendall v.

Department of the Army, 479 F.3d 830, 836-37 (Fed. Cir. 2007) (en banc); Frazer

v. United States, 288 F.3d 1347, 1352-53 (Fed. Cir. 2002); RHI Holdings, Inc. v.

United States, 142 F.3d 1459, 1461 (Fed. Cir. 1998).

¶12 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 the appellant “has

been induced or tricked by his adversary’s misconduct into all owing the deadline

to pass.” Id. at 96; see Heimberger v. Department of Commerce, 121 M.S.P.R.

10, ¶ 10 (2014). The requirements for equitable estoppel are “even more

stringent,” requiring affirmative misconduct by the Government. Frazer,

288 F.3d at 1353-54; see Perez Peraza v. Office of Personnel Management,

114 M.S.P.R. 457, ¶ 9 (2010) (explaining that, to prove a claim of equitable

estoppel, a party must show affirmative misconduct and reasonable reliance on

the misconduct to that party’s detriment). 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.

¶13 The doctrine of equitable tolling does not extend to mere “excusable

neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96). Moreover,

equitable tolling is a rare remedy that is to be applied in unusual circumstances

and generally requires a showing that the appellant has been pursuing his rights

7

diligently and some extraordinary circumstances stood in his way. Heimberger,

121 M.S.P.R. 10, ¶ 10. Here, the appellant cannot meet this burden. On review,

he argues that an equitable exception should apply to excuse the untimely filing

of his appeal because of the significant burden he assumed in pursuing his appeal

through a hearing on the merits of his removal. PFR File, Tab 1 at 5. However,

he has not alleged either that he pursued his rights diligently during the statutory

filing period or that he was induced or tricked by the agency’s misconduct into

allowing the deadline to pass. See Heimberger, 121 M.S.P.R. 10, ¶ 10. Indeed,

he has not set forth any explanation for his untimely filing. We note that,

although the agency provided the appellant an incorrect statement of the deadline

to file a Board appeal—advising him that he had 30 calendar days as opposed to

the 10 business days prescribed by the statute—he filed his appeal 14 days

beyond the incorrect date set by the agency. IAF, Tab 1, Tab 15 at 15, 17, Tab 18

at 11. Under these circumstances, we find that the appellant has not demonstrated

that he acted with due diligence in pursuing his appeal or that any extraordinary

circumstances stood in the way of his timely filing. See Brown v. U.S. Postal

Service, 110 M.S.P.R. 381, ¶ 12 (2009) (finding the application of equitable

tolling unwarranted when the appellant’s failure to file a timely complaint was a

result of his own lack of due diligence in preserving his legal rights). Thus, even

if equitable relief is available under 38 U.S.C. § 714, the appellant would be

ineligible to receive it.

¶14 Regarding the availability of equitable relief to excuse an u ntimely filed

appeal under 38 U.S.C. § 714, we are inclined to believe that equitable tolling is

available under appropriate circumstances given our reviewing court’s analysis in

Kirkendall, 479 F.3d at 836-43, which concluded that appeals filed under the

Veterans Employment Opportunities Act of 1998 are subject to equitable tolling.

However, as set forth above, the appellant here has alleged no facts that would

bring him within the doctrine of equitable tolling. Therefore, we need not, and do

not, decide whether equitable exceptions may be invoked in appropriate

8

circumstances to excuse an untimely filed appeal under 38 U.S.C. § 714. See

5 U.S.C. § 1204(h) (providing that the Board is prohibited from issuing advisory

opinions); see also Wood, 54 M.S.P.R. at 593 (concluding that the Board need not

decide whether the doctrine of equitable tolling could be applied in IRA appeals

brought under the WPA because the appellant did not allege any facts to bring

him within the doctrine).

The administrative judge did not abuse her discretion.

¶15 In his petition for review, the appellant alleges that the administrative judge

abused her discretion when she dismissed the appeal as untimely filed after

holding a hearing on the merits of his removal. PFR File, Tab 1 at 4-5. In

justifying the dismissal, the administrative judge stated that the issue o f whether

the Board has jurisdiction over an appeal, including whether an appeal was timely

filed, is always before the Board and may be raised by either party, or sua sponte

by the Board, at any time during the appeal process. ID at 3. We disagree with

the statement that the timeliness of an appeal is a jurisdictional issue , as we have

held that statutory time prescriptions before the Board are not jurisdictional. 3 See

Heimberger, 121 M.S.P.R. 10, ¶ 13 (citing Kirkendall, 479 F.3d at 842).

Nevertheless, because the deadline for filing an appeal under 38 U.S.C. § 714 is

statutory and the appellant has not shown any basis for waiving or tolling the

3

It is understandable that the administrative judge may have believed that the time

prescription here was jurisdictional given that our reviewing court has held that certain

time prescriptions are jurisdictional, including the 60-day time limit for filing an appeal

of a final Board decision pursuant to 5 U.S.C. § 7703(b)(1)(A). See Fedora v. Merit

Systems Protection Board, 848 F.3d 1013, 1014-17 (Fed. Cir. 2017). In Fedora, the

U.S. Court of Appeals for the Federal Circuit found that, pursuant to the U.S. Supreme

Court’s decision in Bowles v. Russell, 551 U.S. 205, 209, 212-13 (2007), statutory time

periods for filing an appeal to an Article III court are “mandatory and jurisdictional,”

and are not subject to equitable tolling. Fedora, 848 F.3d at 1015. However, the Board

is not an Article III court, and we discern no basis to deviate from precedent and

conclude that the time prescription set forth in 38 U.S.C. § 714(c)(4)(B) is

jurisdictional. See Heimberger, 121 M.S.P.R. 10, ¶ 13 (citing Kirkendall, 479 F.3d

at 842).

9

statutory deadline, the administrative judge did not have the discretion to waive

or toll the filing deadline once she discovered it was untimely filed. See

Heimberger, 121 M.S.P.R. 10, ¶¶ 9, 12 (stating that the appeal must be dismissed

as untimely filed when there is an insufficient basis to waive or toll the statutory

filing deadline). Therefore, although unfortunate that the administrative judge

did not address the apparent untimeliness of the appeal prior to concluding a

hearing on the merits, we find that she did not abuse her discretion in doing so.

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 4

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.

4

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.

10

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:

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

11

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. ____ , 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:

12

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

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. 5 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).

5

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.

13

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.

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:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.