The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH S. HAYES, DOCKET NUMBER
Appellant, SF-1221-21-0377-W-1
v.
DEPARTMENT OF JUSTICE, DATE: March 11, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph S. Hayes , Windsor, California, pro se.
Brooke A. DuBois , Esquire, and Clairanne Wise , Esquire, Springfield,
Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
granted the appellant’s request for corrective action in his individual right of
action (IRA) appeal. For the reasons discussed below, we GRANT the agency’s
petition for review, REVERSE the administrative judge’s findings regarding the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judges 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
timeliness of the appeal, VACATE the initial decision, and DISMISS the appeal
as untimely filed.
BACKGROUND
The appellant was a Criminal Investigator with the U.S. Forest Service
(USFS), a sub-agency of the Department of Agriculture, detailed to a task force
operated by the Drug Enforcement Administration (DEA), a sub -agency of the
agency in this appeal. Hayes v. Department of Agriculture, MSPB Docket
No. SF-1221-21-0377-W-1, Initial Appeal File (IAF), Tab 9 at 49-55. In the
spring of 2020, DEA terminated the appellant’s position on the task force. IAF,
Tab 1 at 22-23, Tab 9 at 16, 19-20. As a result, USFS directed the appellant’s
geographic reassignment. Hayes v. Department of Agriculture, MSPB Docket
No. SF-1221-21-0320-W-1, Initial Appeal File (0320 IAF), Tab 7 at 40-41. The
appellant declined the reassignment, and USFS removed the appellant, effective
January 19, 2021, based on his declination. Id. at 22-26, 28-30.
The appellant filed a complaint with the Office of Special Counsel (OSC),
in which he alleged that he engaged in whistleblower activity while assigned to
the DEA task force, and that, because of that activity, in addition to personnel
actions taken by USFS, DEA eliminated his task force position. IAF, Tab 1
at 36-37; Tab 19 at 4. On March 22, 2021, OSC issued the appellant a close -out
letter and another letter informing him of his right to file an IRA appeal with the
Board within 65 days. IAF, Tab 1 at 36-37. The appellant then timely filed a
Board appeal against USFS. 0320 IAF, Tab 1. During a June 2, 2021 status
conference in that appeal, the appellant indicated that he also wanted to pursue an
IRA appeal against DEA. 0320 IAF, Tab 12 at 2. The administrative judge
docketed the present appeal on that same date. IAF, Tab 2 at 2.
During the pendency of the present appeal, the agency noted that, based on
the appellant’s expression of his desire to file a Board appeal against the agency,
the administrative judge docketed the appeal 72 days after OSC’s March 22, 2021
3
close-out letter. IAF, Tab 17 at 14. The agency thus argued that the appeal was
untimely filed, and also argued that equitable tolling of the statutory deadline was
not warranted under the circumstances. Id. at 14-15. In response, the appellant
argued that equitable tolling was warranted because his IRA appeal against USFS
was a “good faith effort” to file an appeal against both USFS and DEA. IAF,
Tab 19 at 4. The appellant also argued, among other things, that equitable tolling
was appropriate due to “fraudulent concealment” and other agency misconduct,
and that the 7-day filing delay was not significant. Id. at 4-7. The appellant
further requested that his appeal be evaluated under 5 U.S.C. § 1214(a)(3)(B),
which provides that an individual may file an IRA appeal with the Board
120 days after seeking corrective action from OSC if OSC does not notify the
individual that it will seek corrective action on his behalf. IAF, Tab 21 at 4.
In the initial decision, the administrative judge found the appeal had been
timely filed, determining that the timeline under 5 U.S.C. § 1214(a)(3)(B) was
more appropriate to apply to the appeal, but that even if the 60-day deadline
under 5 U.S.C. § 1214(a)(3)(A) were applicable, equitable tolling excused the
delay. 2 IAF, Tab 23, Initial Decision (ID) at 14-17. The administrative judge
then concluded that the appellant made protected disclosures which were a
contributing factor in DEA’s elimination of his task force position, and that the
agency failed to show by clear and convincing evidence that it would have
eliminated the appellant’s task force position absent his disclosures. ID at 17-22.
As relief, the administrative judge ordered that DEA offer the appellant a position
on its task force if an opening remained for a USFS agent. 3 ID at 22.
2
The appellant waived his right to a hearing and the administrative judge thus issued an
initial decision based on the written record. IAF, Tab 12 at 2.
3
In the appellant’s appeal against USFS, the administrative judge found that the
appellant made protected disclosures which were a contributing factor in USFS’s
personnel actions, and that USFS failed to show by clear and convincing evidence that
it would have taken the same actions absent those disclosures. Hayes v. Department of
Agriculture, MSPB Docket No. SF-1221-21-0320-W-1, Initial Decision at 17-27
(Nov. 17, 2021). As corrective action, the administrative judge ordered, among other
things, that the appellant’s removal be reversed. Id. at 28-29. The administrative judge
4
The agency filed a petition for review in which it challenges, among other
things, the administrative judge’s timeliness analysis. Petition for Review (PFR)
File, Tab 1 at 10-18. The appellant did not respond.
ANALYSIS
The appeal was untimely filed.
Under 5 U.S.C. § 1214(a)(3)(A), if OSC notifies an individual seeking
corrective action from OSC “that an investigation concerning such [individual]
has been terminated,” and “no more than 60 days have elapsed since notification
was provided to such [individual] that such investigation was terminated,” he may
file an IRA appeal with the Board. Notwithstanding the implementing provisions
of 5 C.F.R. § 1209.5(a), which adds 5 days to account for mailing, Fisher v.
Department of Defense, 52 M.S.P.R. 470, 475 (1992), the statutory time limit for
filing an IRA appeal cannot be waived for good cause shown because there is no
statutory mechanism for doing so, Heimberger v. Department of Commerce,
121 M.S.P.R. 10, ¶ 9 (2014). On the other hand, an individual may file an IRA
appeal with the Board under 5 U.S.C. § 1214(a)(3)(B) at any time if no action has
been taken by OSC within 120 days of his filing of a complaint. Schaefer v.
Department of Transportation, 87 M.S.P.R. 37, ¶ 12 (2000).
We disagree with the administrative judge’s conclusion that the timeline
under 5 U.S.C. § 1214(a)(3)(B) was appropriate to apply to the appeal. The
administrative judge found that, because OSC’s close-out letter did not address
any investigation into actions by DEA, and it was not clear that OSC investigated
the appellant’s claims against DEA or timely issued a close-out letter for such an
investigation, the 60-day deadline in 5 U.S.C. § 1214(a)(3)(A) did not apply. ID
at 16-17.
also awarded the appellant compensatory damages against USFS in an addendum initial
decision. Hayes v. Department of Agriculture, MSPB Docket No. SF-1221-21-0320-P-
1, Initial Decision (Mar. 22, 2022). Neither party petitioned the Board for review of
those initial decisions, which thus became final decisions of the Board. 5 C.F.R.
§ 1201.113.
5
It is correct that OSC’s March 22, 2021 letter informing the appellant of his
Board appeal rights did not specifically identify DEA as a subject of his
complaint. IAF, Tab 1 at 36. However, based on the record, the appellant filed
only one OSC complaint, and OSC’s letter informed the appellant that its
investigation into the entirety of that complaint had been terminated. 4 Id.
at 34-41. The appellant never asserted that he made a complaint in addition to the
one addressed in OSC’s letter, nor is there any indication that the appellant was
awaiting a separate close-out letter for OSC’s investigation into his allegations
regarding DEA. Finally, the appellant acknowledged that he had alleged
prohibited personnel practices by DEA in his OSC complaint, and OSC’s letter
informed the appellant that he may file an IRA appeal for “any personnel action”
taken against him because of whistleblowing activity “that was the subject of
[his] OSC complaint.” Id. at 36; IAF, Tab 21 at 4.
We thus find that the condition that triggers the 60-day time limit under
5 U.S.C. § 1214(a)(3)(A)—that OSC notify the individual seeking corrective
action that the investigation concerning that individual has been terminated—was
satisfied by OSC’s March 22, 2021 letter. Bauer v. Department of the Army,
88 M.S.P.R. 352, ¶ 7 (2001). Thus, because the 60-day deadline applied to the
appeal, accounting for the additional 5 days in 5 C.F.R. § 1209.5(a), the appeal
was untimely filed on June 2, 2021, by 7 days.
Equitable tolling is not warranted under the circumstances.
As set forth earlier, the statutory time limit for filing an IRA appeal cannot
be waived based on a showing of good cause; this is unlike other types of appeals
to the Board for which there is only a regulatory time limit for filing.
Heimberger, 121 M.S.P.R. 10, ¶ 9. However, the 60-day deadline under 5 U.S.C.
§ 1214(a)(3)(A) may be subject to equitable tolling, under which the filing period
4
Because the appellant did not file his OSC complaint with the Board, we are left to
discern its contents through available evidence. IAF, Tab 1 at 34-41. We assume that
the appellant exhausted his claims in this appeal before OSC.
6
is suspended for equitable reasons. Id., ¶ 10. Equitable tolling is a rare remedy
that is to be applied in unusual circumstances and generally requires a showing
that the litigant has been pursuing his rights diligently and some extraordinary
circumstances stood in his way. Id.; see Wallace v. Kato, 549 U.S. 384, 396
(2007). In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990), the
U.S. Supreme Court explained that it allowed equitable tolling when a claimant
actively pursued his judicial remedies by filing a defective pleading during the
statutory period, or was induced or tricked by his adversary’s misconduct into
allowing a deadline to pass, but has “generally been much less forgiving” when a
claimant failed to exercise due diligence in preserving his legal rights. 5
We disagree with the administrative judge’s finding that the 60-day
deadline in 5 U.S.C. § 1214(a)(3)(A) should be equitably tolled. The
administrative judge reasoned that the appellant diligently pursed his rights by
filing an appeal based on OSC’s instructions, that if OSC had intended its
March 22, 2021 letter to give notice of appeal rights regarding an appeal against
DEA it did not communicate that intent clearly, and that any ambiguity created by
OSC constituted an extraordinary circumstance that stood in the appellant’s way.
ID at 17. The administrative judge further found, applying Irwin, that the
appellant actively pursued his remedies by timely filing a pleading against USFS,
which may have been “defective” against DEA, but that this defect was corrected
promptly. Id.
However, as discussed, the appellant acknowledged that he had alleged
prohibited personnel practices by DEA in his OSC complaint, and the March 22,
2021 letter informed the appellant that its investigation into the entirety of that
complaint had been terminated and that he may file an IRA appeal for “any
personnel action” taken against him because of whistleblowing activity “that was
the subject of [his] OSC complaint.” IAF, Tab 1 at 36, Tab 21 at 4. As
5
In 5 C.F.R. § 1209.5(b), the circumstances under which Irwin found equitable tolling
permissible are stated to apply to IRA appeals.
7
demonstrated by his timely filing of his appeal against USFS, the appellant knew
how to timely file an appeal against DEA, 0320 IAF, Tab 1, and there was no
“extraordinary circumstance” that stood in his way had he desired to do so.
Further, the administrative judge’s finding that the appellant filed a diligent
but “defective” pleading appears to have credited the appellant’s assertion that his
appeal against USFS was a “good faith effort” to file an appeal against both
USFS and DEA. ID at 17; IAF, Tab 19 at 4. However, in statements in his USFS
appeal that preceded the expression of his desire to file the current appeal, the
appellant indicated that he was only seeking redress against USFS. 0320 IAF,
Tab 8 at 6. For example, in response to USFS’s attempt to argue that DEA, and
not USFS, was the appropriate party to the appellant’s appeal against USFS, the
appellant described USFS as “the [a]gency [that] took the action, the [a]gency
[that] is responsible.” Id.; 0320 IAF, Tab 7 at 15. There is also no indication that
the appellant’s USFS appeal was intended to constitute an appeal against both
USFS and DEA or that his failure to timely file an appeal against DEA was a
result of a “defect.” 0320 IAF, Tab 1. Tolling the 60-day statutory deadline is
therefore inappropriate under the circumstances. 6 See Heimberger, 121 M.S.P.R.
10, ¶ 12 (finding equitable tolling inappropriate despite a potentially misleading
letter from OSC when the appellant did not diligently pursue her claim during the
period to be tolled and it did not appear that the potentially misleading language
in the close-out letter was causally related to the appellant’s untimely filing).
Regarding the appellant’s argument that the 7-day filing delay was not
significant, equitable tolling has been held to not excuse a filing delay of even a
single day. Taylor v. Secretary of the Department of Health and Human Services ,
6
Even if the appellant was somehow confused by OSC’s March 22, 2021 letter
regarding his right to file an IRA appeal against DEA, he could easily have contacted
OSC for clarification. His neglect in doing so would also make this appeal
inappropriate for equitable tolling. See Reutershan v. Merit Systems Protection Board,
43 F.3d 1486, *4 (Fed. Cir. 1994) (Table) (finding that whether or not an OSC close-out
letter was confusing about the applicable time limit for filing a Board appeal, the ease
with which the petitioner could have contacted OSC for clarification makes his case one
of mere neglect inappropriate for equitable tolling).
8
91 F.3d 172, *1 (Fed. Cir. 1996) (Table) (finding equitable tolling unavailable for
garden variety excusable neglect leading to a 1-day filing delay). 7 Finally, the
appellant’s various allegations of DEA’s malfeasance and “fraudulent
concealment,” IAF, Tab 19 at 5-7, do not warrant extending equitable tolling to
this appeal, as they do not establish an explanation for his untimeliness or are
otherwise irrelevant to the issue. Accordingly, the appellant’s appeal was
untimely filed, equitable estoppel does not excuse the appellant’s delay, and the
appeal is dismissed.
NOTICE OF APPEAL RIGHTS 8
This Final Order constitutes the Board’s final decision in this matter.
5 C.F.R. § 1201.113. 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
7
The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department
of the Navy, 123 M.S.P.R. 662, ¶ 13 n.9 (2016).
8
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.
9
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
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
10
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. 420 (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.
11
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
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. 9 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).
9
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.
12
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.