United States Court of Appeals For the First Circuit
No. 22-1933
GIOVANNI IRIZARRY SIERRA,
Plaintiff, Appellant,
v.
FRANK J. BISIGNANO, Commissioner of Social Security,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Gelpí, Lipez, and Rikelman, Circuit Judges.
Bamily López-Ortiz, with whom Lizabel M. Negrón-Vargas was on brief, for appellant.
Jeniffer Vélez Pérez, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Commissioner Frank J. Bisignano is automatically substituted for former Acting Commissioner Kilolo Kijakazi as Appellee. October 27, 2025 GELPÍ, Circuit Judge. This case arises out of the Social
Security Administration's (SSA or "Agency") alleged discriminatory
termination of Plaintiff-Appellant Giovanni Irizarry Sierra
("Irizarry"). The Merit System Protection Board (MSPB) reviewed
Irizarry's allegations of discrimination and issued a final
decision in favor of the Agency. After the time for judicial
review of the MSPB decision had elapsed, the SSA's Office of Civil
Rights and Equal Opportunity (OCREO) sent Irizarry a Final Agency
Decision (FAD) resolving the same allegations of discriminatory
termination in favor of the Agency and indicating that he could
seek judicial review. Based on that FAD, Irizarry commenced this
action in federal district court. The SSA moved to dismiss,
arguing it sent the FAD in error and that Irizarry's complaint was
untimely because his appeal rights ended with the MSPB process.
The district court granted the SSA's motion. Irizarry now
challenges that ruling on appeal. For the reasons stated below,
we affirm.
I. BACKGROUND
We briefly rehearse the relevant facts of the case.
Because this appeal follows the district court's grant of a motion
to dismiss, "we draw those facts from [Irizarry's] complaint and
other materials in the record that may be considered at the
motion-to-dismiss stage." O'Brien v. United States, 56 F.4th 139,
141 (1st Cir. 2022); see Fed. R. Civ. P. 12(b)(6).
- 3 - A. Irizarry's Termination
Irizarry worked as an Attorney Advisor for the SSA Office
of Hearing Operations in Ponce, Puerto Rico. The SSA terminated
his employment in March 2019, citing his unsatisfactory
performance. A few months after his termination, on July 15,
2019,1 Irizarry filed a complaint with the SSA's OCREO, alleging
that discriminatory and retaliatory conduct had led to his firing.
B. Agency Proceedings
On August 27, 2019, the OCREO mailed Irizarry a Letter
of Acceptance informing him that it reorganized his allegations
into three claims. The OCREO explained that it would dismiss the
first claim as untimely and would accept and bifurcate the
remaining claims into a pre-termination discrimination claim and
a termination discrimination claim. The termination claim, at
issue here, was separated and assigned a new claim number because
it was identified as a "mixed case" claim.
OCREO explained the difference between the claims. A
regular Equal Employment Opportunity (EEO) claim adduces
discrimination and proceeds through the Agency's EEO process with
appeal rights to the U.S. Equal Employment Opportunity Commission
(EEOC). A mixed case claim, by contrast, combines a discrimination
1The parties use two dates -- July 15, 2019, and July 25, 2019 -- when referencing the filing of the formal EEO complaint. The complaint is postmarked July 15, 2019.
- 4 - allegation with an adverse personnel action -- such as
termination -- that is appealable to the MSPB rather than the EEOC.
Following the Agency's acceptance of the claims, the
OCREO issued a report of investigation ("ROI").2 Upon receiving
the ROI, Irizarry requested a hearing before an EEOC Administrative
Judge ("AJ") as to both claims. On June 4, 2020, the EEOC AJ
issued a decision. The AJ dismissed the termination claim for
lack of jurisdiction, explaining that because it was a mixed case
complaint, Irizarry had no right to a hearing before an EEOC AJ.
Instead, he found that "mixed case processing should be followed"
and remanded the termination claim for a FAD. As to the
pre-termination claim, the AJ recommended that it be dismissed
because Irizarry had elected to raise those matters through the
Agency's negotiated grievance process, thus divesting the EEOC of
jurisdiction. The AJ then ordered the Agency to issue a Final
Order notifying Irizarry "whether . . . [it would] fully
implement" the AJ's decision.
In response to the EEOC AJ's order, the SSA issued a
Final Order ("Final Order") adopting the EEOC AJ's decision as to
the pre-termination claim on June 17, 2020. This Final Order was
identified by the pre-termination claim's unique case number.
2Irizarry pled that he received the ROI on December 12, 2019. The SSA counters that the ROI was mailed on November 25, 2019, and delivered to Irizarry’s home on November 29, 2019.
- 5 - Irizarry's termination claim remained pending before the Agency's
OCREO.
Still, on July 20, 2020,3 Irizarry sought review of the
termination claim to the MSPB. Irizarry checked "Removal" as the
personnel action he wished to appeal, but attached the Final Order,
which did not address his termination claim, and instead addressed
the pre-termination claim. Irizarry asserted jurisdiction by
claiming that a "FAD [had been] issued on 6/18/20." The SSA
submitted a Narrative Response on August 30, 2020, highlighting
the discrepancy in Irizarry's documents to the MSPB. But the SSA
acknowledged that, while no FAD had been issued for the termination
claim, more than 120 days had passed since Irizarry filed his
original EEOC complaint. Thus, the relevant statutes and
regulations did grant the MSPB jurisdiction over Irizarry's
termination claim at that time.
On October 30, 2020, the MSPB issued an initial decision
for the SSA, sustaining Irizarry's removal. In the letter
announcing its decision, the MSPB notified Irizarry that its
"initial decision [would] become final on December 4, 2020." The
notice emphasized that "[t]he date on which the initial decision
becomes final also controls when you can file a petition for
3 The MSPB's Initial Decision incorrectly states that appellant initiated his appeal on July 2, 2020. The MSPB Appeal Form was signed on July 20, 2020.
- 6 - review" and emphasized the importance of filing a petition "within
the proper time period." In the "Notice of Appeal Rights" section,
the MSPB's decision explained that Irizarry "may obtain judicial
review of this decision . . . by filing a civil action with an
appropriate U.S. district court . . . within 30 calendar days
after this decision becomes final." Irizarry did not file a civil
action in federal district court within those thirty days, or by
January 4, 2021.
On February 9, 2021, the OCREO issued a FAD on Irizarry's
termination claim ("February FAD"). The FAD included the Agency's
typical "Notice of Rights" section explaining that, if Irizarry
was dissatisfied with the decision, he could appeal to the MSPB or
file a civil action within thirty days of receiving the FAD.
C. District Court Proceedings
Irizarry filed a civil action with the U.S. District
Court for the District of Puerto Rico against the SSA on March 11,
2021, contesting his removal from federal service and seeking,
among other things, review of the MSPB's decision under 5 U.S.C.
§ 7703(b)(2).4 In his complaint, Irizarry claimed to have
"exhausted all administrative remedies" before filing suit.
Before the SSA responded, on May 5, 2021, the OCREO
rescinded the February FAD. The OCREO explained that the February
4 "Cases of discrimination subject to the provisions of section 7702 of this title . . . must be filed within 30 days after - 7 - FAD had been issued erroneously because it had not been notified
of the MSPB appeal and corresponding decision until May 4, 2021.
The letter then stated that the February FAD "should be
disregarded, as the decision [was] not appropriate at [that] time."
After the OCREO rescinded the February FAD, the SSA moved
to dismiss, asserting that all claims were time-barred. It also
contended that Irizarry could not rely on the February FAD to seek
judicial review because the SSA had issued it in error after
Irizarry's time to appeal the MSPB's decision had expired. To
support its motion, the SSA attached additional documents related
to the administrative proceedings,5 contending that the court
the date the individual filing the case received notice of the judicially reviewable action under such section 7702." 5 U.S.C. § 7703(b)(2). 5The SSA sought to "supplement[] Irizarry's administrative timeline" by attaching the following documents from the EEO and MSPB processes: (1) Irizarry's Formal EEO Complaint of Discrimination; (2) The EEO's Letter of Acceptance dated August 27, 2019, dismissing the performance evaluation claim and bifurcating the pre-termination claim and the mixed case complaint; (3) The Notice of Receipt of Hearing Request before the Commission dated December 30, 2019; (4) The Commission AJ's Order on the Agency's Motion to Dismiss, Order Entering Judgment and Notice to the Parties, dated June 4, 2020; (5) The SSA's Final Order adopting the Commission AJ's decision in full, dated June 17, 2020; (6) Irizarry's [A]ppeal to the [MSPB] dated July 20, 2020; (7) The [MSPB's] Initial Decision dated October 30, 2020; (8) The erroneously issued FAD dated February 9, 2021; and (9) The FAD Recission [sic] Letter dated May 5, 2021, rescinding the February 9, 2021 FAD.
- 8 - should consider them because (1) Irizarry did not dispute the
documents' authenticity; (2) the documents were part of an official
public record; and (3) the documents were sufficiently referenced
in the complaint.
Irizarry opposed the SSA's motion. He argued that
documents attached to the SSA's motion were "extraneous to the
complaint" and so the district court could not consider them
without converting the motion to dismiss into a motion for summary
judgment. In his sur-reply, Irizarry further asserted that, even
if time-barred, equitable considerations save his termination
claim. Specifically, he asserted that equitable tolling should
apply because he made a "good faith error" in seeking review of
his claim at the MSPB before the OCREO had issued a FAD. And that
equitable estoppel should apply because he relied on the February
FAD in believing that he timely filed his civil action in district
court.
The district court agreed with the SSA and granted its
motion to dismiss. As an initial matter, the district court
determined that it could consider the documents attached to the
SSA's motion because they were "relied upon or incorporated by
reference in the Complaint, as well as contained in [Irizarry's]
official record with the Agency." The district court then
considered the timeliness of Irizarry's claims, finding that they
were time-barred because he was properly notified of applicable
- 9 - filing deadlines but failed to meet them. The district court
rejected equitable tolling, reasoning that Irizarry "could not
have been misled [] into foregoing his right to commence timely
litigation following the MSPB's decision" because the erroneous
February FAD was issued 36 days after the deadline to appeal the
MSPB's decision.
Irizarry timely appealed the district court's decision.
II. DISCUSSION
Irizarry advances several arguments on appeal. First,
he contends that the district court improperly relied on documents
extraneous to the complaint and, in so doing, converted the motion
to dismiss into one for summary judgment without proper notice.
Second, Irizarry argues that the MSPB lacked jurisdiction over the
termination claim because, as far as we can glean, he prematurely
sought review of the termination claim to the MSPB only because he
mistook the OCREO's Final Order issued on June 17, 2020, to
encompass the termination claim. He argues his intention to
proceed through the Agency was controlling, and that his appeal
rights are governed by the Agency's FAD. Third, Irizarry asserts
that equitable tolling should be applied to extend the statutory
deadline because he made a "good faith error" in filing prematurely
with the MSPB. And lastly, he claims that equity estops
consideration of the SSA's argument that the February FAD was
issued in error because the Agency deliberately misled him into
- 10 - believing that the Final Order was a FAD on his termination claim.
We address each argument seriatim.
A. Extraneous Documents
We begin with Irizarry's contention that the district
court improperly relied on documents extraneous to the complaint
in dismissing his case. Specifically, he challenges the documents
the SSA submitted from the administrative record to support its
argument that his claim is time-barred and thus should be
dismissed.
Generally, if the district court considers "matters
outside the pleadings" on a motion to dismiss under Rule 12(b)(6),
"the motion must be treated as one for summary judgment under Rule
56." Fed. R. Civ. P. 12(d). But we "have made narrow exceptions
for documents the authenticity of which are not disputed by the
parties; for official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred to in
the complaint." Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
"When the complaint relies upon a document, whose authenticity is
not challenged, such a document 'merges into the pleadings' and
the court may properly consider it under a Rule 12(b)(6) motion to
dismiss." Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co.,
267 F.3d 30, 33 (1st Cir. 2001) (quoting Beddall v. State St. Bank
& Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998)). Without these
exceptions, the district court's inquiry into the feasibility of
- 11 - a complaint would be "hamstrung" by allowing plaintiffs to "thwart
the consideration of a critical document merely by omitting it
from the complaint." Beddall, 137 F.3d at 17.
The documents the SSA submitted fit within this narrow
exception. The exhaustion of administrative remedies is a
prerequisite to filing an employment discrimination suit in
federal district court. See García-Gesualdo v. Honeywell
Aerospace of P.R., 135 F.4th 10, 16 (1st Cir. 2025). In his
complaint, Irizarry asserts that he "exhausted all administrative
remedies" before filing in the district court. To assess that
claim, the district court needed to review the administrative
record attached to the SSA's motion to dismiss. Because Irizarry
does not dispute the authenticity of any of the documents
submitted, and they are central to his claim, the district court
could consider them without converting the motion to dismiss into
a motion for summary judgment.6
B. Dismissal for untimeliness
We now evaluate the appropriateness of the district
court's dismissal on limitations grounds. "We review the district
court's dismissal based on untimeliness de novo."
García-Gesualdo, 135 F.4th at 16. The district court's grant of
6 Because we may affirm on any ground evident in the record, we need not consider the other independent reasons cited by the district court for considering the documents submitted by the SSA. See Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021).
- 12 - a motion to dismiss "based on a limitations defense is entirely
appropriate when the pleader's allegations leave no doubt that an
asserted claim is time-barred." Martin v. Somerset Cnty., 86 F.4th
938, 942 (1st Cir. 2023) (quoting LaChapelle v. Berkshire Life
Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998)).
A complainant must file a civil action in federal
district court "[w]ithin 30 days of receipt of notice of the final
decision or action taken by the MSPB if the individual does not
file a petition for consideration with the EEOC." 29 C.F.R.
§ 1614.310(b). The MSPB issued its decision on Irizarry's
termination claim on October 30, 2020. Irizarry was notified that
the MSPB's decision would become final on December 4, 2020. At
that point, Irizarry had thirty days, or until January 4, 2021, to
file a civil action in federal district court. But Irizarry did
not file the complaint until March 11, 2021. Because he did not
file within the limitations period, his complaint is time barred.
Irizarry presses that his case should proceed because
the MSPB lacked jurisdiction over his appeal. He maintains that
he appealed to the MSPB only because he mistakenly believed that
the Agency had issued a FAD with respect to the termination claim
and that he never invoked the 120-day jurisdictional exception.
According to him, his "intention" to proceed at the Agency is the
"controlling factor." On that basis, he maintains the February
- 13 - FAD -- not the MSPB decision -- governs his appeal rights. We
disagree.
It is true that an employee pursuing a mixed case may
begin the process either at the agency itself or by bringing the
case directly to the MSPB, but not both. 5 U.S.C. § 7702;
29 C.F.R. § 1614.302(a), (b). And the initial choice typically
governs the forum through which a plaintiff must exhaust his
administrative remedies. Stoll v. Principi, 449 F.3d 263, 265-66
(1st Cir. 2006). For an employee who initiates a complaint at the
agency level, that means he must typically wait for a FAD. And
only when that FAD is issued, he can (1) appeal to the MSPB or (2)
sue in district court. 29 C.F.R. 1614.302(d)(3); 29 C.F.R.
1614.310. But this scheme has an exception: a claimant who
initially chooses to file a mixed case complaint at the agency
may, after 120 days have passed without a judicially reviewable
action by the agency, appeal the matter to the MSPB, regardless of
his initial choice of forum ("120-day jurisdictional exception").
5 U.S.C. § 7702(e)(2); 29 C.F.R. § 1614.302(d)(1)(i); 5 C.F.R.
§ 1201.154(b)(2). At this point, a claimant's initial election is
not dispositive of where his claim may lie. The MSPB gains
jurisdiction and must decide the claim. 5 U.S.C. § 7702(a)(1)(B).
This is so, even though it is generally true that
"whichever [of the mixed case agency complaint or MSPB appeal] is
filed first shall be considered an election to proceed in that
- 14 - forum." See 29 C.F.R. § 1614.302(b); see also Martinez v.
Shimseki, No. 10-cv-1304, 2012 WL 359382, at *4 (D.P.R. Feb. 2,
2012). Generally, "[t]here are no U-turns" and the complainant's
first forum election controls. Punch v. Bridenstine, 945 F.3d
322, 329 (5th Cir. 2019). However, the regulations explicitly
allow "a complainant [who] elects to proceed initially under" the
Agency to appeal to the MSPB when 120 days have passed without
judicially reviewable agency action. 29 C.F.R.
§ 1614.302(d)(1)(i). That is what happened here.
Irizarry contends that he did not intend to bypass the
Agency by filing the MSPB appeal; he sought only to argue that the
Agency's Final Order was defective and did not mean to appeal to
the MSPB on the merits. (Irizarry does not explain why, if he was
concerned only about the form of the order rather than its merits,
he did not raise that issue directly with the Agency.) He further
argues that his intent was legally relevant to whether the MSPB
had jurisdiction over his termination claim, that he never
"intended" to elect to proceed at the MSPB or to invoke its
jurisdiction under the 120-day rule, and that the district court
could not evaluate his intent at the motion to dismiss stage.
Irizarry's position, however, is not consistent with the
regulations or precedent, both of which provide that a complainant
may elect a process by their actions of filing in a forum. See
Stoll, 449 F.3d at 265-66. Further, Irizarry points to no legal
- 15 - authority, and we are not aware of any, holding that a
complainant's subjective intent is relevant to whether MSPB
jurisdiction exists.
Here, Irizarry filed his original EEOC complaint in July
2019. He then sought review of his termination claim with the
MSPB on July 20, 2020, well over the 120 days required for
jurisdiction. See 5 U.S.C. § 7702(e)(2). Thus, the MSPB had
jurisdiction to issue its decision on Irizarry's termination
claim.
It is worth noting that the Agency's Narrative Response
clearly stated three separate times that a FAD had not been issued
as to the termination claim.7 Although the Narrative Response was
filed after Irizarry had already sought review at the MSPB, this
document put him on notice that the alleged FAD could not be the
basis of jurisdiction over his appeal to the MSPB. Yet Irizarry
continued to press his claim before the MSPB and never contested
that it had jurisdiction based on the 120-day exception. Based on
these facts, we find that Irizarry cannot now imply that his choice
7 In its Narrative Response, the SSA stated that: "it appear[ed] that Appellant ha[d] incorrectly appealed an agency Final Order related to a non-[MSPB]-appealable Equal Employment Opportunity [EEO] complainant." And twice later, it stated that while "the agency issued a Final Order, fully implementing the EEOC AJ's decision on [the pretermination claim] . . . [t]he agency is processing the matter and has not yet issued a FAD related to [the termination claim]."
- 16 - of forum was taken away from him and that the MSPB lacked
jurisdiction to issue its decision.
While Irizarry clings to the fact that his lawsuit was
timely filed thirty days after the February FAD, the February FAD
cannot render his time-barred claims timely. The regulations for
mixed case complaints specify that "[a]n agency may dismiss a mixed
case complaint for the reasons contained in, and under the
conditions prescribed in, § 1614.107." 29 C.F.R § 1614.302(c)(1).
In turn, 29 C.F.R. § 1614.107(a)(4) provides that the agency "shall
dismiss an entire complaint . . . [w]here the complainant has
raised the matter . . . in an appeal to the [MSPB]."8 Thus, the
Agency should have dismissed Irizarry's complaint once he began
the MSPB process and never issued the February FAD. See 29 C.F.R.
§ 1614.302(c)(1). In fact, the MSPB requires a complainant who
files a mixed case appeal at the MSPB to certify that he or she
gave notice to the Agency, which allows them to timely dismiss the
complaint. The record is unclear about whether Irizarry provided
The SSA also cites McAdams v. Reno, 64 F.3d 1137, 1142 (8th 8
Cir. 1995), to suggest that "EEOC regulations provide for the cancellation of a mixed case complaint if such an appeal is timely filed" after 120 days have passed without a judicially reviewable action by the agency. The SSA explains that McAdams cites a regulation in place before the 1992 amendments (29 C.F.R. § 405(b)), and that the current regulations do not show any significant alteration that would change the outcome. We have not found 29 C.F.R. § 405(b) in its historic form to corroborate this claim. And we have not found another judicial opinion that refers to this regulation without cross-referencing McAdams.
- 17 - the required notice.9 But, regardless, it is clear the FAD should
have never gone out and that the Agency should have dismissed the
The rule makes sense. The regulations are designed to
prevent simultaneous processing of discrimination claims before
the MSPB and the agency. See Stoll, 449 F.3d at 266 (quoting 29
C.F.R. § .107(a)) ("[EEOC]'s regulations highlight the mutually
exclusive nature of the two fora."). "'The CSRA's objective of
creating an integrated scheme of review . . . would be seriously
undermined' by 'parallel litigation regarding the same agency
action.'" Perry v. MSPB, 582 U.S. 420, 436 (2017) (quoting Elgin
v. Dep't of Treasury, 567 U.S. 1, 14 (2012)) (cleaned up).
So, to sum up, a claimant who pursues an appeal with the
MSPB after 120 days of agency inaction -- especially one who
receives a decision on the merits from the MSPB -- forfeits the
proceedings at the agency level and must pursue any subsequent
appeal in district court within thirty days of the MSPB decision.
That is what happened here: regardless of his subjective intent,
Irizarry elected to appeal his termination claim to the MSPB. The
MSPB had jurisdiction, decided the claim, and notified Irizarry of
9 The SSA argues it was not provided proper notice and suggests this was the reason they failed to dismiss the complaint and erroneously issued the FAD in the first place. Irizarry does not assert that he gave notice and could not confirm notice was given at oral argument.
- 18 - his right to sue in district court. Irizarry failed to sue within
the required timeframe, rendering this action untimely.
C. Equitable Considerations
Even if untimely, Irizarry insists that equitable
tolling and equitable estoppel save his termination claim. We
find his arguments unconvincing.
1. Equitable Tolling
We review a district court's ruling to grant or reject
equitable tolling for abuse of discretion. Farris v. Shinseki,
660 F.3d 557, 562 (1st Cir. 2011). We see no reason to disturb
the district court's finding that the doctrine did not apply.
As discussed previously, the governing statute provides
that a party has thirty days from the MSPB's final decision to
seek formal review. 5 U.S.C. § 7703(b)(2). That limitations
period is subject to equitable tolling, which allows courts to
extend filing deadlines in exceptional circumstances. Nunnally v.
MacCausland, 996 F.2d 1, 4 (1st Cir. 1993). Equitable tolling is
appropriate when a plaintiff shows that "circumstances beyond his
or her control precluded a timely filing." Abraham v. Woods Hole
Oceanographic Inst., 553 F.3d 114, 119 (1st Cir. 2009) (citation
omitted). It does not apply if the delay was the result of the
plaintiff's own "lack of diligence." Id. (citing Cao v. Puerto
Rico, 525 F.3d 112, 115 (1st Cir. 2008)). That is, courts will
not use it to "rescue a plaintiff" from missed deadlines caused by
- 19 - neglect or mistake. See id. "If the court finds that the plaintiff
knew, actually or constructively," of his rights, then, "there
could be no equitable tolling." Kale v. Combined Ins. Co. of Am.,
861 F.2d 746, 753 (1st Cir. 1988).
Here, the record evinces that the MSPB informed Irizarry
that its decision "w[ould] become final on December 4, 2020." The
MSPB's decision also explained that "[t]he date on which the
initial decision becomes final . . . controls when you can file a
petition for review with one of the authorities discussed in the
'Notice of Appeal Rights' section." In that section, the MSPB
properly notified Irizarry that he "may obtain judicial review of
this decision . . . by filing a civil action with an appropriate
U.S. district court . . . within 30 calendar days after this
decision becomes final." Given the clarity of the notice, we see
no reason in the record to support that it was out of Irizarry's
control to file a civil action with the district court within the
required timeframe.
Irizarry insists that he made a "good faith error" in
appealing to the MSPB prematurely. But he cites no authority from
our circuit recognizing "good faith error" as a reason to equitably
toll a statute of limitations. Instead, he cites a Seventh Circuit
case that permits equitable tolling when the plaintiff mistakenly
files in the wrong forum. See Threadgill v. Moore USA, Inc., 269
F.3d 848, 850 (7th Cir. 2001). But even if such a rule were
- 20 - recognized in this Circuit, it would not toll the limitations
period to revive an appeal in the intended forum after a litigant
pursued his claim in the wrong forum, a final decision was
rendered, and the time to appeal expired.
What is more, the record does not credit Irizarry's "good
faith" mistake. As the SSA points out:
If . . . Irizarry . . . was under the mistaken belief that the SSA’s June 17, 2020, final order was a FAD that concluded his EEO process, then he knew that failure to timely seek review of the [MSPB's] decision meant any pursuit of his termination claim would be over. If Irizarry was truly mistaken about the FAD having been issued, then he could have no expectation of ever receiving one, [sic] that would allow him to file suit.
We thus cannot conclude that the district court abused its
discretion in denying tolling of the statute.
2. Equitable Estoppel
Irizarry invokes equitable estoppel in a last attempt to
save his case. As with equitable tolling, we review the district
court's decision rejecting equitable estoppel for abuse of
discretion. See Vera v. McHugh, 622 F.3d 17, 30 (1st Cir. 2010).
Equitable estoppel "applies when a plaintiff who knows
of his cause of action reasonably relies on the defendant's conduct
or statements in failing to bring suit." Ortega Candelaria v.
Orthobiologics LLC, 661 F.3d 675, 679 (1st Cir. 2011) (quoting
Ramírez-Carlo v. United States, 496 F.3d 41, 48 (1st Cir. 2007)).
To demonstrate entitlement to equitable estoppel, a plaintiff must
- 21 - show evidence of the defendant's "improper purpose or his
constructive knowledge of the deceptive nature of his
conduct . . . . in the form of some definite, unequivocal
behavior . . . fairly calculated to mask the truth or to lull an
unsuspecting person into a false sense of security." Vera, 622
F.3d at 30 (citation modified). Equitable estoppel is to be used
sparingly against the government. See Nagle v. Acton-Boxborough
Reg'l Sch. Dist., 576 F.3d 1, 3-4 (1st Cir. 2009).
We understand Irizarry to make two arguments. First,
that the Agency exploited his mistaken filing -- allegedly caused
by the Agency's concealment that the Final Decision was not a
FAD -- to force a shift away from his original forum. Second,
that the Agency's issuance of the February FAD amounted to an
"affirmative misrepresentation," on which he "relied to file
his . . . [c]omplaint." We are unpersuaded by both.
As to his first argument, Irizarry claims "it was
impossible" not to "consider the Final Decision on the EEOC AJ's
decision as a FAD." And that "the Agency . . . ignored the
mistaken references to a FAD in the MSPB appeal" so that it could
"accommodate its jurisdictional claim." But, as we have explained,
the Agency was clear that the Final Order related only to the
pre-termination claim and that the termination claim was remanded
for a FAD. Then, throughout the MSPB appeal process, the Agency
made clear that a FAD had not been issued as to the termination
- 22 - claim and that the only basis for jurisdiction could be the 120-day
jurisdictional exception. Thus, Irizarry did not "fil[e]
prematurely" at the MSPB because of any Agency misrepresentation.
Nor did the Agency "use[]" his mistake "to its advantage." His
mistake resulted from his own confusion about the nature of the
Final Decision.
Irizarry's second argument is similarly unconvincing.
The February FAD cannot be the basis of an equitable estoppel claim
because it was issued after the expiration of the thirty-day period
where Irizarry could appeal the MSPB's decision. So we agree with
the district court's reasoning that Irizarry could not have relied
on the FAD when he forewent "his right to commence timely
litigation following the MSPB's decision." Because we find that
Irizarry did not rely on the February FAD when foregoing his
appeal, we do not consider Irizarry's arguments that the Agency
had the requisite improper purpose or knowledge of the allegedly
deceptive nature of its conduct when it issued the February FAD.
III. CONCLUSION
For the reasons explained, we affirm the district
court's dismissal of Irizarry's termination claim.
- 23 -