(a) General rule. The appellant must seek corrective action from the Special Counsel before appealing to the Board unless the action being appealed is otherwise appealable directly to the Board and the appellant has elected a direct appeal. (See § 1209.2(d) regarding election of remedies under 5 U.S.C. 7121(g)). Where the appellant has sought corrective action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed:
(1) No later than 65 days after the date of issuance of the Special Counsel's written notification to the appellant that it was terminating its investigation of the appellant's allegations or, if the appellant shows that the Special Counsel's notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel's notification; or,
(2) At any time after the expiration of 120 days, if the Special Counsel has not notified the appellant that it will seek corrective action on the appellant's behalf within 120 days of the date of filing of the request for corrective action.
(b) Equitable tolling; extension of filing deadline. The appellant's deadline for filing an individual right of action appeal with the Board after receiving written notification from the Special Counsel that it is terminating its investigation of his or her allegations is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.
(c) Appeals after a stay request. Where an appellant has filed a request for a stay with the Board without first filing an appeal of the action, the appeal must be filed within 30 days after the date the appellant receives the order ruling on the stay request. Failure to timely file the appeal will result in the termination of any stay that has been granted unless a good reason for the delay is shown.
[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 62 FR 59993, Nov. 6, 1997; 77 FR 62374, Oct. 12, 2012]
Notes of Decisions
Dwyne Chambers v. Dep't of Homeland Sec., 2022 MSPB 8 (MSPB 2022).
“§ 1214 (a)(3)(A); see 5 C.F.R. § 1209.5 (a). ¶6 The administrative judge found that the appellant failed to exhaust his administrative remedies before OSC because OSC terminated its investigation after the appellant failed to respond to its preliminary determination letter.”
Robert Zachariasiewicz, Jr. v. DOJ, 48 F.4th 237 (4th Cir. 2022).
· cites it 3× “11 Neither the district court nor the government questioned the validity of 5 C.F.R. § 1209.5 (b), which permits equitable tolling of § 1214(a)(3)’s filing deadline.”
Frederick Schlottman v. Thomas Perez, 739 F.3d 21 (D.C. Cir. 2014).
· cites it 2× “See 5 C.F.R. § 1209.5 (a)(1). As the timeline on the following page demonstrates, Schlottman’s effort to navigate these Rube Goldberg-like procedures began on January 31, 2009 when he initiated the whistleblower route by filing a complaint with the OSC.”
Charles D. Goines v. Merit Sys. Prot. Bd., 258 F.3d 1289 (Fed. Cir. 2001).
“1992); 5 C.F.R. § 1209.5 (a). To the extent Goines con *1294 tends that the Board has jurisdiction over his whistleblowing claim because it is ancillary to his within-grade claim, the Board’s lack of jurisdiction over the latter also eliminates jurisdiction over the former.”
Payton v. Dep't of Homeland Sec., 300 F. App'x 890 (Fed. Cir. 2008).
“See 5 C.F.R. § 1209.5 (IRA appeal must be filed within sixty days of receiving notice of termination or sixty-five days from the date of the termination letter).”
Gibbs v. Dep't of the Interior, 36 F. Supp. 3d 162 (D.D.C. 2014).
“§ 1214 (a)(3); 5 C.F.R. § 1209.5 (a). If the OSC either terminates its investigation of a claim or fails to notify the claimant whether it intends to seek corrective action, the claimant may then pursue an individual right of action before the MSPB.”
Kurth v. Gonzales, 469 F. Supp. 2d 415 (E.D. Tex. 2006).
“§ 1214 (a)(3); 5 C.F.R. § 1209.5 (a); Ellison v. Merit Systems Protection Board, 7 F.”
Lena Wilson-Jefferson v. Dep't of Vets. Affairs (MSPB 2024).
· cites it 7× “; 5 C.F.R. § 1209.5 (a)(1). This deadline may be extended when the appellant, despite having diligently pursued her rights, was unable to make a timely filing.”
— 5 C.F.R. § 1209.5(a)(1) — 3 cases
Robert Zachariasiewicz, Jr. v. DOJ, 48 F.4th 237 (4th Cir. 2022).
“11 Neither the district court nor the government questioned the validity of 5 C.F.R. § 1209.5 (b), which permits equitable tolling of § 1214(a)(3)’s filing deadline.”
Annotations are extracted automatically from the opinions in the
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