                          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.
