In Paine v. Merit Systems Protection Board, Fed. Cir. No. 06-3165; MSPB Docket No. DE-0752-05-0378-I-1 (November 7, 2006), the U.S. Court of Appeals for the Federal Circuit affirmed the final decision of the Merit System Protection Board to dismiss an employee’s appeal of his removal by the Department of Energy on the basis that the appeal was untimely filed.

Typically, the MSPB adjudicates complaints simply alleging an improperly taken adverse action while complaints alleging discriminatory treatment, resulting in an adverse change in work conditions, are reserved for the Equal Employment Opportunity Commission (EEOC). However, the MSPB has jurisdiction over so-called “mixed cases,” which arise when an employee alleges that an adverse action was based, in whole or in part, on prohibited discrimination. In other words, when an employee has received a personnel action that is directly appealable to the MSPB and is raising a related allegation of discrimination, then that employee must decide how and where to appeal the personnel action. The employee may pursue the appeal either through the EEOC or the MSPB. If an employee elects to pursue the appeal through the EEOC, then the employee still must eventually file an appeal with the MSPB. The time deadlines for appealing to the MSPB are set forth in 5 CFR § 1201.154(b).

On October 25, 2004, the appellant received notice that the department was terminating his employment due to his inability to possess a commercial driver’s license (CDL), which was necessary to perform his duties as Lineman. On December 9, 2004, the appellant filed a formal discrimination complaint with the agency alleging his removal was motivated by unlawful discrimination. On April 7, 2005, 119 calendar days after the appellant’s filing, the agency issued by mail a final decision on the discrimination complaint. On April 12, 2005, the appellant’s legal representative received the final decision. On June 13, 2005, 67 calendar days after the receipt of the final decision by the appellant’s legal representative, the appellant filed an appeal with the Board contesting the agency’s decision to remove him.

In Paine, the Federal Circuit did not disturb the Board’s interpretation of 5 CFR § 1201.154(b). Regarding this regulatory provision, the Board made two important determinations: (1) an appellant is always required to appeal within 30 calendar days of receipt of a final decision; and (2) an appellant is not vested with the right to appeal a final decision until either the agency issues a final decision on the discrimination complaint or after 120 calendar days have expired since the date the discrimination complaint was filed.

The Board’s interpretation has several implications. If the agency fails to issue a final decision within 120 calendar days of the date of the discrimination complaint being filed, then the appellant “may appeal the matter directly to the Board at any time after the expiration of 120 calendar days.” However, if at any point in time the agency issues a final decision subsequent to missing the 120-day deadline, then the appellant must appeal within 30 calendar days of receipt of the final decision. Presumably, the need to file an appeal within 30 calendar days would be obviated if an appellant filed an appeal after 120 calendar days had expired but before the agency issued a final decision. In Paine, the agency issued the decision within 120 calendar days after Mr. Paine filed his formal discrimination complaint. Therefore, in order to be timely, Mr. Paine had to file his appeal with the Board within 30 days of receiving the final decision. Mr. Paine failed to meet this deadline, and consequently, the Board dismissed his case.

In short, an employee appealing a “mixed case” must be aware of when he or she receives a final decision and when the agency issues a final decision. Barring some exception, failing to meet time deadlines in “mixed cases” will result in a swift dismissal.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide.

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