                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BENJAMIN T. POST,                               DOCKET NUMBER
                   Appellant,                        CH-1221-15-0699-W-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: May 12, 2016
                 Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

           Ellen L. Harrison, Esquire, Springfield, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his individual right of action (IRA) appeal as untimely filed.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an
     erroneous interpretation of statute or regulation or the erroneous application of

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review. Therefore, we DENY the petition for review. Except as
     modified in paragraph 8 to clarify that time prescriptions are not jurisdictional,
     we AFFIRM the initial decision, which is now the Board’s final decision.
     5 C.F.R. § 1201.113(b).

                                       BACKGROUND
¶2         The appellant, a GS-13 Criminal Investigator, filed a complaint with the
     Office of Special Counsel (OSC) in December 2014 alleging that agency officials
     had lowered his performance rating in retaliation for his protected disclosures.
     Initial Appeal File (IAF), Tab 1 at 1, 9. In a close-out letter dated June 26, 2015,
     OSC notified the appellant that it was closing its inquiry into his allegations and
     informed him of his right to file a request for corrective action with the Board
     within 65 days after the date of the letter. Id. at 8.
¶3         On September 22, 2015—88 days after the date of the close-out letter—the
     appellant, through his attorney, mailed an IRA appeal to the Board. See id. at 32.
     The administrative judge issued an order on timeliness notifying the appellant
     that his IRA appeal appeared to be untimely filed by 23 days and ordering him to
     submit evidence and argument showing that the appeal was timely filed or that
     equitable tolling should apply. IAF, Tab 4 at 1-3. In response, the appellant’s
     attorney submitted a sworn declaration acknowledging that the appeal was
     untimely filed, but asking that the filing deadline be waived on the basis of
                                                                                            3

     equitable tolling because he, the attorney, was solely responsible for the late
     filing and the appellant was adjusting to a new duty station in Puerto Rico during
     the filing period, which “kept [him] from repeatedly contacting his legal counsel
     regarding the progression of his Whistleblower case.” IAF, Tab 7 at 3, 6, 9. The
     attorney explained that he miscalculated the filing deadline because he was very
     busy with other casework and his eyesight had become worse than he realized,
     which caused him to misread the date on the OSC close-out letter as “July 26,
     2015,” rather than “June 26, 2015.” Id. at 3-10. In an initial decision based on
     the written record, the administrative judge dismissed the appeal as untimely
     filed, finding that the appellant filed the appeal approximately 3 weeks late and
     that he failed to establish grounds for equitable tolling of the time limit. IAF,
     Tab 13, Initial Decision (ID) at 3-5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶4         The appellant, through his attorney, has filed a petition for review of the
     initial decision, arguing that the administrative judge erred by dismissing the IRA
     appeal as untimely filed because the Board has the authority to invoke equitable
     tolling in this case on the basis of the factual circumstances described in the
     attorney’s declaration below. 2 Petition for Review (PFR) File, Tab 1; see IAF,
     Tab 7. Specifically, the appellant argues that his attorney’s degraded physical
     condition, of which the appellant was unaware, impacted the attorney’s ability to


     2
       The appellant also asserts on review that the issue of whether equitable tolling may be
     applied in appeals arising under 5 U.S.C. § 1221 “has never been squarely addressed by
     the Board and we are seeking to have the question answered[.]” PFR File, Tab 1 at 3.
     Because, as discussed below, we agree with the administrative judge that the appellant
     has alleged no facts that would bring him within the doctrine of equitable tolling, we
     need not, and do not, decide whether the doctrine of equitable tolling may be invoked in
     appropriate circumstances to excuse an untimely filed IRA appeal. See 5 U.S.C.
     § 1204(h) (the Board is prohibited from issuing advisory opinions); see also Wood v.
     Department of the Air Force, 54 M.S.P.R. 587, 591-93 (1992) (finding no
     circumstances to suggest that equitable tolling, even if it could be applied, warranted a
     waiver of the filing deadline).
                                                                                        4

     timely file this IRA appeal and that the appellant, who had recently relocated to
     Puerto Rico, acted reasonably in relying upon his experienced counsel to comply
     with the statutory deadlines. PFR File, Tab 1 at 4.
¶5        Under 5 U.S.C. § 1214(a)(3)(A), once OSC closes its investigation into a
     complaint, an appellant may file an IRA appeal with the Board within 60 days.
     Under the Board’s regulations implementing that statutory time limit, an IRA
     appeal must be filed no later than 65 days after the date that OSC issues its
     close-out letter, or, if the letter is received more than 5 days after its issuance,
     within 60 days of the date of receipt.      5 C.F.R. § 1209.5(a)(1).    Here, it is
     undisputed that the appellant, through his attorney, filed the IRA appeal nearly
     3 weeks past the filing deadline. PFR File, Tab 1 at 2; see IAF, Tab 1 at 8, 32.
¶6        Notwithstanding the implementing provisions of 5 C.F.R. § 1209.5(a), the
     filing period for an IRA appeal is statutory—not regulatory.               5 U.S.C.
     § 1214(a)(3)(A); Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 9
     (2014).   Unlike the Board’s regulatory time limits for appeals filed under
     5 U.S.C. § 7701, 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, 121 M.S.P.R. 10, ¶ 9. However, the filing deadline might be
     subject to equitable tolling, under which the filing period is suspended for
     equitable reasons, such as when the complainant has been induced or tricked by
     his adversary’s misconduct into allowing the deadline to pass or where he filed a
     defective pleading during the statutory period. Wood, 54 M.S.P.R. at 593 (citing
     Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)).         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. Heimberger,
     121 M.S.P.R. 10, ¶ 10.    Equitable tolling does not extend to mere “excusable
     neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96).
                                                                                      5

¶7         Here, as noted above, the appellant, through his attorney, urges the Board to
     apply equitable tolling to excuse his untimely filing because his attorney
     miscalculated the filing deadline and misread the date of the OSC close-out letter
     due to deteriorating vision, and the appellant reasonably relied on his experienced
     attorney to timely file the appeal. PFR File, Tab 1 at 3-4; see IAF, Tab 7 at 2-9.
     These circumstances, while unfortunate, do not constitute the type of
     extraordinary circumstances that warrant tolling a statutory deadline. See Irwin,
     498 U.S. at 96; Heimberger, 121 M.S.P.R. 10, ¶¶ 10-12; Pacilli v. Department of
     Veterans Affairs, 113 M.S.P.R. 526, ¶¶ 10-11, aff’d, 404 F. App’x 466 (Fed. Cir.
     2010). Therefore, we agree with the administrative judge that the appellant’s IRA
     appeal was untimely filed and that he has not alleged any circumstances that
     would warrant the application of equitable tolling to excuse his untimeliness. ID
     at 3-5.
¶8         Although we generally agree with the administrative judge’s analysis of this
     case, we wish to clarify the legal basis for the dismissal. The initial decision
     states at one point that the appeal is dismissed because the Board lacks
     jurisdiction over the appeal.      ID at 2.   However, time prescriptions are not
     jurisdictional. Heimberger, 121 M.S.P.R. 10, ¶ 13. The correct disposition for
     this case is dismissal as untimely filed and, because the appeal is dismissed on
     timeliness grounds, we do not reach the jurisdictional issue. See id.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
               You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit.
               The court must receive your request for review no later than 60 calendar
     days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
     27, 2012). If you choose to file, be very careful to file on time. The court has
     held that normally it does not have the authority to waive this statutory deadline
                                                                                    6

and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you want to request review of the Board’s decision concerning your
claims   of    prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about other
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.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                  7

http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
