MSPB Denied These Cases, Now Federal Unions Want Review

Dec 1, 2017


The National Treasury Employees Union announced they have filed friend-of-the-court briefs on behalf of 3 federal employees asking the Supreme Court to review their appeals of Merit Systems Protection Board Cases.

In each of the 3 cases, The U.S. Court of Appeals for the Federal Circuit dismissed the employee’s appeal because the employee missed a filing deadline. However, NTEU National President Tony Reardon said those dismissals were improper because the employees made every effort to comply with deadlines.

In both the Vocke v. MSPB and Fedora v. MSPB cases, the employees “followed guidance issued by the court in its own Guide for Pro se Petitioners,” NTEU said in its amicus brief. But the employees received denials based on the erroneous instruction by the court. The American Federal of Government Employees also filed a brief in both cases.

The Cases

On May 2, 2016, MSPB dismissed a whistleblower retaliation complaint by Commerce Department employee Robert Vocke. He received his decision 9 days later and although he submitted his appeal within 60 days of receiving his decision. In accordance with U.S. Court of Appeals instructions, the court ruled that he missed the deadline because the court received it 66 days after the decision was first issued.

Likewise, U.S. Postal Service employee Lawrence Fedora, who appealed his dismissal as a mail handler, was ruled to have missed the deadline to file his own appeal of an MSPB decision because he filed within 60 days of receiving the board’s decision, instead of within 60 days of when it was first issued.

At the time of those decisions, the courts’ instructions for MSPB appeals stated: “you may file a petition for review in this court within 60 days of receipt of the board’s decision.” The passage was revised as of Dec. 1, 2016, to read “you may file a petition for review in this court within 60 days after the date on which the Board issued a notice of that decision.”

Jeffery Musselman, a 20-year veteran and civilian Army employee, alleged he received a demotion for whistleblower disclosures to management. He sent his appeal of the MSPB decision 13 days ahead of the filing deadline, but it didn’t arrive at the court for 16 days.

Union Reactions

In both the NTEU and AFGE briefs, they argued these cases should be subject to a legal concept called “equitable tolling”, in which a deadline for filing a claim or appeal should not bar individuals from being heard, provided they can show that they exercised due diligence in attempting to file the appeal on-time.

“These cases are about protecting all federal employees—including whistleblowers—from retaliation or otherwise illegal personnel actions,” Reardon said. “The law says they have the right to federal court review of these actions. When their paperwork is late because of someone else’s mistake, the court can and should excuse the tardiness.”

The deadline for filings in the Vocke and Fedora cases is Dec. 13, and the deadline in Musselman v. Department of Army is Dec. 15.

These cases illustrate how important it is to not only file before these deadlines but to KNOW when they are.

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