MSPB Solidifies Longer Filing Deadline for DVA Employees in Mixed Cases

Federal employees who want to appeal an adverse personnel action to the MSPB face a short deadline – 30 calendar days from the effective date – to do so. Thanks to Congress, employees of the Department of Veterans Affairs (DVA) have an even shorter deadline: 10 business days. 38 U.S.C. § 714. A pair of recent Board decisions, however, have expanded that 10-day deadline in certain instances.

Willie Davis, a DVA employee, was removed from his position effective January 31, 2020. On March 2, 2020, he appealed his removal to the MSPB, alleging, among other things, that his removal was the result of race discrimination and EEO reprisal. The Board’s Administrative Judge (AJ) observed that the appeal appeared to be untimely and ordered Davis to show why the 10-business-day deadline should be waived. Davis argued that his appeal was subject to the 30-calendar-day limit for mixed cases (cases that include an allegation of discrimination in connection with an appealable personnel action). The AJ held, however, that the 10-day limit controlled, and she dismissed Davis’s appeal as untimely. Davis sought review of the AJ’s decision.

Earlier this year, the Board addressed the case of a VA employee who appealed to the Board after she filed a formal EEO complaint with her agency challenging her removal. Wilson v. Department of Veterans Affairs, 2022 MSPB 7. Clearly, Wilson’s appeal was filed long after the 10-day deadline had passed, and the AJ dismissed the appeal as untimely. The Board held, however, that Congress allowed federal employees who file an EEO complaint in connection with a personnel action that can be appealed to the Board can then file a mixed case appeal after 120 days. 5 U.S.C. § 7702. The Board held that, because the VA Accountability Act (VAAA) said nothing about mixed cases, those cases are governed by Section 7702, and not the VAAA. The Board reversed the dismissal of Wilson’s appeal, holding that her mixed case appeal was timely filed after her EEO complaint, as allowed by Section 7702.

The issue in Davis’s appeal was somewhat different because unlike Wilson, who first filed an EEO complaint and then filed her appeal to the Board, Davis filed his appeal directly with the Board and raised his discrimination claim in the appeal, without first filing an EEO complaint. The Board held in Davis v. MSPB, that Wilson controlled Davis’s appeal. A federal employee can file a “mixed case” whether they file an EEO complaint and then go to the Board, or they file the appeal directly with the Board and raise their discrimination claim for the first time in the appeal. Under either scenario, Section 7702 controls the time limits, and not the VAAA.

In sum, a VA employee who wishes to appeal to the MSPB is subject to the 30-day deadline – and not the 10-business-day deadline in the VAAA – if and only if their appeal includes an allegation of discrimination and/or EEO reprisal.

George Chuzi is an attorney at Kalijarvi, Chuzi, Newman & Fitch.

This article also appeared in Federal News Network on February 6, 2023.