What Happens if You Don’t Meet Your Filing Deadline? Find Out When a Deadline can be Extended Through Equitable Tolling
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
A federal employee who failed to meet his filing deadline under 5 U.S.C. § 7703(b)(2) asked the U.S. Court of Appeals for the District of Columbia Circuit to apply equitable tolling and extend his deadline.
The appellant, an employee at the Department of Homeland Security’s Office of the Inspector General, was removed from his position based on poor performance. He appealed his removal pro se to the Merit Systems Protection Board (MSPB) as a “mixed” case, alleging that he had been improperly fired because he had not had sufficient opportunity to demonstrate acceptable performance and because he was discriminated against on the basis of race and sex. An MSPB Administrative Law Judge (ALJ) sustained the agency’s removal action and rejected the discrimination arguments. The ALJ’s decision informed the appellant that he had 30 calendar days after the decision became final to request judicial review of the opinion by a U.S. district court. The decision became final on May 20, 2020, making June 19, 2020 his deadline to file an appeal in district court.
On June 15, 2020, the appellant called the Clerk’s Office and spoke with a court personnel who allegedly told him that filing deadlines were not being strictly enforced due to the COVID-19 pandemic, and that it was more important that he get filed than worry about a deadline. The appellant mailed his complaint on June 15, 2020, and his complaint was not posted to the Court’s docket until June 20, 2020, one day late. The agency filed a motion to dismiss, which the district court granted, holding that the appellant failed to meet his filing deadline and that it did not have authority to equitably toll a jurisdictional deadline.
The appellant appealed the district court’s decision, arguing that the 30-day deadline was not a jurisdictional deadline and that he was entitled to equitable tolling of the deadline.
If a deadline is jurisdictional, a court may not hear a case if a party fails to meet that prescribed deadline. On the other hand, a nonjurisdictional deadline may be subject to equitable tolling, a legal principle which allows a party to file a claim even after a deadline has passed, if certain conditions are met. Because the appellant’s case was a “mixed” case of MSPB and Title VII law, it was governed by 5 U.S.C. § 7703(b)(2). The court pointed to Supreme Court and circuit court case law holding the filing deadlines for causes of action under § 7703(b)(2) were nonjurisdictional. The court also addressed the text of the statute, which it held was not sufficiently strict or clear to be considered a jurisdictional deadline barring equitable tolling. In making this decision, the court overruled its previous decision with a contrary.
Accordingly, the court examined whether the 30-day deadline could be equitably tolled for the appellant. A party seeking equitable tolling must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” The extraordinary circumstances must be out of the appellant’s control, and equitable tolling cannot offer relief for a party who misses a deadline because of simple negligence.
The appellant provided two reasons that he failed to meet his 30-day deadline—the first, logistical complications due to the COVID-19 pandemic and, second, that the court personnel’s misleading advice prevented him from timely filing. The court rejected these reasons. It pointed to a standing order in place during that time, which instructed litigants to file by email or drop boxes at the Courthouse. The appellant, instead, mailed his complaint only four days before the statutory deadline. He provided no explanation for why he did not follow the standing order instructions or how the pandemic affected his choice. The court held, then, that the appellant’s choice to mail his appeal and resulting failure to meet the deadline was a “garden variety claim of excusable neglect” that did not meet the equitable tolling standard, and it affirmed the district court’s dismissal.
Find the full case here: Robinson v. Department of Homeland Security Office of the Inspector General
For over forty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.