A hearing officer initially rejected the employee’s request for a waiver, saying it required misconduct by the agency and that the VA had made only an “inadvertent mistake.” Image: Brian A Jackson/Shutterstock.com
By: FEDweek StaffThe MSPB has sided with a federal employee who asked for a waiver of a deadline for filing an appeal of a personnel action, saying that it will allow such a waiver where the agency “induced or tricked” the employee into missing the deadline.
That is true even if there is no evidence that the agency acted maliciously, said MSPB in Case No. 2022 MSPB 46. It is the latest in a recent series interpreting special provisions applying to VA employees but the case set a precedent for waiving filing deadlines under the doctrine of “equitable tolling.”
In its notice of right to appeal to the MSPB, the VA said the employee had the standard 30 days, rather than the only 10 days applying at that department under the 2017 law. The employee met the former but not the latter deadline.
An MSPB hearing officer rejected the employee’s request for a waiver, saying that a waiver under the doctrine of equitable tolling requires misconduct by the agency and that the VA had made only an “inadvertent mistake.”
On appeal, the board noted that in a recent case involving that same law, it had rejected a request for a waiver on grounds that the law does not require the agency to notify its employees of their election rights or any filing deadlines associated with those elections. However, it agreed with the employee that he reasonably relied on the information the agency given to him and that he could not have been expected to know that it was incorrect.
It said that no prior cases from itself or its reviewing court “suggest that an opposing party’s misconduct or misleading language must be committed or provided with maliciousness or ill intent in order to trigger equitable tolling. Rather, they simply suggest that when a party takes an action or provides language that misleads an adversary, that party may not benefit from that action.
“Here, it cannot be reasonably disputed that the agency’s language informing the appellant that he had 30 calendar days from the effective date of his removal or 30 calendar days from his receipt of the removal notice, whichever was later, to appeal his removal to the Board misled him into believing that a 30-day filing period was permitted. The agency’s inclusion of a reference to the Board’s website, which included accurate information on the filing period, or the appellant’s reliance on counsel does not change this analysis,” it said.
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See also,
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The Process of Retiring: Check Your Agency’s Work
