NOVA Legal Beat: I Got Demoted, Now What?

Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My federal agency demoted me. How much time do I have to decide whether I want to file an appeal with the Merit Systems Protection Board? Are there any legitimate excuses for missing this deadline?

A. Under Section 1201.22 of the Code of Federal Regulations (CFR), the deadline for filing an appeal with the Merit Systems Protection Board is either 30 calendar days after the effective date of the adverse action or 30 calendar days after the appellant receives the agency’s decision. In cases where the aggrieved employee and agency mutually agree to attempt to resolve the problem through mediation, the filing deadline can be extended to 60 calendar days. If an MSPB administrative judge delivers an unfavorable decision, the appellant generally has 35 calendar days after that decision is issued to file a petition for review (PFR) to the full MSPB under 5 CFR § 1201.114.

“To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case,” the Board said in John A. Stolarczyk v. Department of Homeland Security (2012). Factors that the Board said it will consider in a good-cause-for-an-untimely-filing analysis include: 1. the delay’s length; 2. the excuse’s reasonableness and evidence of due diligence; 3. pro se representation (i.e., legal representation on one’s own behalf); and 4. “the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition.”

In Stolarczyk the Board noted that attorney filing mistakes, whether due to miscommunications or confusion over or a misunderstanding about deadlines, do not qualify as good causes for late filings. And the fact that an appellant is not being represented by a lawyer does not mean the Board will automatically cut him or her a break. “We have consistently denied a waiver of our filing deadline if a good reason for the delay is not shown, even where the delay is brief and the appellant is pro se,” the Board said in Gary L. Jack v. Department of the Air Force (2012). However, good cause can be established if, for example, the appellant can show “he was unable to file his petition on time due to illness, or mental or physical incapacity,” the Board said in Grimaldi M. Gonzalez v. Department of Veterans Affairs (2009).

To avoid late MSPB filings, federal employees should always contact an experienced federal employment law attorney immediately after receiving notice of an adverse action. An attorney can ensure all filing deadlines are met.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.