No “U‑Turns” After 120 Days: First Circuit Holds MSPB Jurisdiction Controls Mixed‑Case Review and Erroneous Agency FADs Cannot Revive Expired Deadlines

No “U‑Turns” After 120 Days: First Circuit Holds MSPB Jurisdiction Controls Mixed‑Case Review and Erroneous Agency FADs Cannot Revive Expired Deadlines

Introduction

In Irizarry Sierra v. Bisignano, No. 22-1933 (1st Cir. Oct. 27, 2025), the First Circuit affirmed the dismissal of a federal employee’s discrimination and removal challenge as untimely where the employee pursued a mixed case before the Merit Systems Protection Board (MSPB) after 120 days of agency inaction, obtained an MSPB decision, but failed to file a district court action within 30 days of that decision becoming final. The court rejected attempts to revive the case based on an agency’s later-issued Final Agency Decision (FAD) that was acknowledged to be erroneous and subsequently rescinded. It also clarified that an employee’s subjective “intent” to remain in the agency forum does not negate MSPB jurisdiction invoked through the 120-day exception, and that equitable tolling and estoppel were unavailable on the facts presented.

The decision is a careful application—and clarification—of the mixed-case framework that governs federal-sector discrimination claims tied to appealable adverse actions, reinforcing the “no parallel tracks” rule between agency EEO processing and MSPB review. It also underscores the practical importance of the 30-day clock that runs from MSPB finality, not from any later agency action.

Summary of the Opinion

  • The district court properly considered documents from the administrative record (EEO and MSPB filings and decisions) at the Rule 12(b)(6) stage under the First Circuit’s narrow exceptions for documents central to the claims, official records, undisputed in authenticity, or incorporated by reference (Watterson v. Page; Alternative Energy; Beddall).
  • The case was time-barred: under 29 C.F.R. § 1614.310(b) and 5 U.S.C. § 7703(b)(2), Irizarry had 30 days from the MSPB decision becoming final (December 4, 2020) to sue in district court. Filing on March 11, 2021 was untimely.
  • MSPB had jurisdiction under the “120-day 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)) because more than 120 days had elapsed without a judicially reviewable agency action. The employee’s subjective intent to stay in the agency forum was irrelevant; jurisdiction turned on what he did, not what he intended (Stoll v. Principi; Punch v. Bridenstine).
  • Once the employee invoked MSPB review, the agency should have dismissed the mixed-case complaint (29 C.F.R. § 1614.302(c)(1); § 1614.107(a)(4)). The later, erroneous FAD could not restart or extend the statutory deadline and was rightly rescinded.
  • Equitable tolling did not apply: the MSPB’s notice clearly set out the deadline; any “good faith error” in forum selection did not constitute extraordinary circumstances beyond the plaintiff’s control (Nunnally; Abraham; Kale).
  • Equitable estoppel did not apply against the government: no reasonable reliance on an agency misrepresentation caused the missed deadline because the FAD issued only after the 30-day MSPB filing window had closed (Vera; Ortega Candelaria; Nagle).

Case Background and Procedural Posture

Giovanni Irizarry, an Attorney Advisor at the Social Security Administration (SSA) in Ponce, Puerto Rico, was removed for alleged unsatisfactory performance in March 2019. He filed a formal EEO complaint on July 15, 2019 alleging discrimination and retaliation.

  • August 27, 2019: SSA’s Office of Civil Rights and Equal Opportunity (OCREO) accepted the complaint, dismissed one claim as untimely, and split the rest into two tracks:
    • Pre-termination discrimination claim (ordinary EEO processing); and
    • Termination discrimination claim (a “mixed case” because the adverse action is appealable to the MSPB).
  • June 4, 2020: An EEOC Administrative Judge dismissed the termination claim for lack of jurisdiction (mixed-case claims do not get EEOC hearings), remanding for agency issuance of a FAD, and recommended dismissal of the pre-termination claim.
  • June 17, 2020: SSA issued a “Final Order” adopting the AJ’s decision on the pre-termination claim only. The termination claim remained pending for a FAD.
  • July 20, 2020: Irizarry appealed his removal to the MSPB, asserting “Removal” and incorrectly referencing the June 17 “Final Order” as a FAD. SSA’s Narrative Response flagged the mismatch but acknowledged MSPB jurisdiction under the 120-day exception.
  • October 30, 2020: MSPB issued an initial decision upholding removal and notifying that the decision would become final December 4, 2020, with 30 days thereafter to file in district court.
  • February 9, 2021: OCREO issued an erroneous FAD on the termination claim, including standard “Notice of Rights” for MSPB appeal or district court filing.
  • March 11, 2021: Irizarry filed suit in the District of Puerto Rico (within 30 days of the FAD, but not within 30 days of the MSPB’s decision becoming final).
  • May 5, 2021: OCREO rescinded the February FAD upon learning of the MSPB decision, calling the FAD a mistake.
  • District court: Granted SSA’s motion to dismiss as time-barred, rejected equitable tolling and estoppel.
  • First Circuit: Affirmed.

Analysis

Precedents and Authorities Cited and Their Influence

  • Watterson v. Page, 987 F.2d 1 (1st Cir. 1993); Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30 (1st Cir. 2001); Beddall v. State Street Bank & Trust Co., 137 F.3d 12 (1st Cir. 1998): These cases create narrow exceptions to Rule 12(d) allowing courts to consider undisputed, central, or incorporated documents without converting a motion to dismiss into summary judgment. The court leveraged these to examine the administrative exhaustion record, which was central to timeliness.
  • Stoll v. Principi, 449 F.3d 263 (1st Cir. 2006): Recognizes the mutually exclusive tracks of mixed-case processing and the significance of a claimant’s election by filing. The First Circuit built on Stoll to emphasize that the employee’s forum election is assessed by action, not intent, and further that the 120-day exception permits a switch to MSPB notwithstanding the initial agency election.
  • Punch v. Bridenstine, 945 F.3d 322 (5th Cir. 2019): The “no U‑turns” metaphor underscores that once a path is chosen or jurisdiction validly invoked, the complainant cannot double back to another forum, reinforcing the integrated review scheme.
  • Perry v. MSPB, 582 U.S. 420 (2017); Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012): Supreme Court guidance against parallel or fragmented litigation in the federal employment review scheme. The First Circuit used this principle to explain why a later agency FAD cannot co-exist with or undo an MSPB track.
  • Nunnally v. MacCausland, 996 F.2d 1 (1st Cir. 1993); Abraham v. Woods Hole Oceanographic Inst., 553 F.3d 114 (1st Cir. 2009); Cao v. Puerto Rico, 525 F.3d 112 (1st Cir. 2008); Kale v. Combined Ins. Co. of Am., 861 F.2d 746 (1st Cir. 1988): These anchor the demanding standards for equitable tolling, requiring extraordinary circumstances beyond a plaintiff’s control, not mere mistake or lack of diligence. The court found no such circumstances here.
  • Vera v. McHugh, 622 F.3d 17 (1st Cir. 2010); Ortega Candelaria v. Orthobiologics LLC, 661 F.3d 675 (1st Cir. 2011); Ramírez-Carlo v. United States, 496 F.3d 41 (1st Cir. 2007); Nagle v. Acton-Boxborough Reg’l Sch. Dist., 576 F.3d 1 (1st Cir. 2009): These set the bar for equitable estoppel and warn against using the doctrine lightly against the government. The court relied on them to reject estoppel in the absence of timely, causative, affirmative misconduct.
  • Regulatory framework: 29 C.F.R. §§ 1614.302, 1614.310, 1614.107; 5 U.S.C. §§ 7702, 7703; 5 C.F.R. § 1201.154. The decision is deeply grounded in these provisions, especially the 120-day jurisdictional exception (§ 7702(e)(2)) and the district court filing deadline (§ 7703(b)(2); § 1614.310(b)), as well as the command to dismiss the agency complaint once an MSPB appeal is filed (§ 1614.302(c)(1); § 1614.107(a)(4)).

Legal Reasoning

1) Considering Administrative Documents at the Pleadings Stage

The panel affirmed that courts may review administrative exhaustion materials at Rule 12(b)(6) when the plaintiff’s claim (and defenses such as limitations) turn on them, their authenticity is not disputed, and they are official records. Because Irizarry’s complaint alleged exhaustion and the core dispute was timeliness, the EEO and MSPB documents “merged into” the pleadings, enabling the court to evaluate the limitations defense without converting to summary judgment.

2) Mixed-Case Elections, the 120-Day Exception, and MSPB Jurisdiction

Mixed cases (discrimination claims linked to adverse actions appealable to the MSPB) can begin either in the agency EEO process or at the MSPB, but not both in parallel. If the employee starts at the agency, he typically must wait for a FAD before appealing to the MSPB or filing in district court. However, the statutory and regulatory “120-day exception” authorizes an MSPB appeal once 120 days pass without a judicially reviewable agency action, even if the employee first chose the agency forum (5 U.S.C. § 7702(e)(2); 29 C.F.R. § 1614.302(d)(1)(i)).

Here, Irizarry filed his EEO complaint in July 2019 and appealed to MSPB in July 2020—well past 120 days—thus conferring MSPB jurisdiction. The SSA’s Narrative Response highlighted that no FAD existed but acknowledged the MSPB’s jurisdiction under the 120-day rule. The First Circuit held that Irizarry’s subjective intent to continue at the agency could not undo the objective consequence of his filing: the MSPB properly asserted jurisdiction and issued a merits decision. Once on that track, the employee had to meet the 30-day deadline for judicial review following the MSPB decision’s finality; he did not.

3) Later Agency FAD Does Not Reset the Clock

The regulations prohibit concurrent proceedings: when an MSPB mixed-case appeal is filed, the agency must dismiss the mixed-case complaint (29 C.F.R. § 1614.302(c)(1), incorporating § 1614.107(a)(4)). Any subsequent FAD is therefore a nullity, as it undermines the integrated review scheme and invites parallel litigation (see Perry; Elgin). OCREO’s February 2021 FAD was erroneous for this reason and, critically, was issued after the 30-day district court filing period had already expired (January 4, 2021). It could not resurrect the claim.

4) Equitable Tolling and Estoppel

Equitable tolling is reserved for extraordinary circumstances beyond a litigant’s control, not “good faith error” or misapprehension of process. The MSPB’s notice unequivocally explained when its decision would become final and when the 30-day window would run. The court found no external impediment preventing a timely filing, and thus no abuse of discretion in denying tolling (Nunnally; Abraham; Kale).

Equitable estoppel requires definite, deceptive government conduct that causes the plaintiff to miss a deadline. The erroneous February FAD could not have caused Irizarry to forgo timely district court review because it issued 36 days after the MSPB-based deadline had already lapsed. Moreover, the agency’s submissions during the MSPB process repeatedly stated that no FAD existed on the termination claim, undercutting any claim of reasonable reliance on a contrary representation (Vera; Nagle).

Impact and Practical Significance

  • Clarifies in the First Circuit that once an employee invokes MSPB jurisdiction under the 120-day exception and receives a decision, the 30-day filing clock runs from MSPB finality—regardless of any later, erroneous agency FAD. Subjective intent to remain at the agency does not matter; the employee’s actions do.
  • Reinforces the “no parallel tracks” rule: agencies must dismiss mixed-case complaints when the MSPB appeal is filed; claimants cannot hedge between forums. This promotes the “integrated scheme of review” emphasized by the Supreme Court.
  • Tightens the use of equitable doctrines in this context. Clear MSPB notices will generally defeat tolling; estoppel against the government remains exceptional and will fail absent timely, affirmative misconduct causing the missed deadline.
  • For agencies: Implement robust cross-notice protocols so that when an MSPB mixed-case appeal is filed, the EEO office promptly dismisses the mixed-case complaint to avoid issuing errant FADs.
  • For practitioners and employees: Docket the MSPB finality date and the 30-day district court deadline. Do not rely on later agency communications to revive missed MSPB-based deadlines. If you intend to remain in the agency forum, do not file an MSPB appeal after 120 days; if you do, be prepared to meet the MSPB-driven judicial-review clock.

Complex Concepts Simplified

  • Mixed Case: A federal-sector discrimination claim tied to an adverse action that is appealable to the MSPB (e.g., removal, suspension). It can begin at the agency’s EEO process or at the MSPB, but not both.
  • Final Agency Decision (FAD) vs. Final Order: A FAD is the agency’s judicially reviewable merits decision on a discrimination complaint. A “Final Order” implementing an EEOC Administrative Judge’s decision for non-MSPB matters is not a FAD on a mixed-case termination claim unless it says so. Confusing these can have serious consequences.
  • 120-Day Jurisdictional Exception: If the agency has not issued a judicially reviewable action within 120 days of the mixed-case complaint, the employee may appeal to the MSPB even if the employee initially chose the agency route.
  • 30-Day District Court Deadline: After the MSPB’s initial decision becomes final, the employee generally has 30 days to file a civil action in district court for a mixed case (29 C.F.R. § 1614.310(b); 5 U.S.C. § 7703(b)(2)).
  • No Parallel Processing Rule: Once the MSPB appeal is filed on a mixed case, the agency EEO must dismiss the parallel mixed-case complaint (29 C.F.R. § 1614.302(c)(1); § 1614.107(a)(4)).
  • Equitable Tolling vs. Estoppel: Tolling extends a deadline due to extraordinary, external circumstances preventing timely filing; estoppel prevents a party (especially rarely the government) from asserting a defense because its affirmative misconduct caused the other party to miss a deadline.
  • Documents “Merging into the Pleadings”: At the motion to dismiss stage, courts can consider undisputed, central documents referenced in the complaint (such as administrative exhaustion records) without converting the motion to summary judgment.

Key Takeaways

  • If you file an MSPB appeal of a mixed case after 120 days of agency inaction and the MSPB rules on the merits, your 30-day civil action clock runs from the MSPB’s finality date—not from any later agency FAD.
  • Your subjective intent to stay in the agency forum is irrelevant once you actually invoke MSPB jurisdiction; the system evaluates what you did, not what you meant to do.
  • Agencies must dismiss mixed-case complaints when an MSPB mixed-case appeal is filed; later FADs are improper and cannot revive lapsed judicial deadlines.
  • Equitable tolling and estoppel are unlikely to rescue a late filing when the MSPB’s notice was clear and any agency misstep occurred after the deadline passed.
  • District courts may consider administrative records at Rule 12(b)(6) if authenticity is undisputed and the documents are central to exhaustion and timeliness.

Conclusion

The First Circuit’s opinion in Irizarry Sierra v. Bisignano provides a forceful, clarifying application of the mixed-case regime: invoking MSPB jurisdiction via the 120-day exception commits the employee to MSPB-driven deadlines, and the 30-day window to sue in district court runs from MSPB finality. An agency’s later error in issuing a FAD cannot reset or extend that clock, and equitable doctrines will not supply a backstop absent exceptional circumstances or causative government misconduct. The decision fortifies the integrity of the federal employment review scheme by preventing parallel or serial relitigation and by emphasizing the primacy of clear, objective deadlines over subjective intent or administrative missteps.

Case Details

Year: 2025
Court: Court of Appeals for the First Circuit

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