Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—1st Cir.: Erroneously issued decision did not revive attorney advisor’s untimely challenge to discharge, (Oct 28, 2025)

By Jason Albright, J.D.

A mixed case claim, as here, combines a discrimination allegation, which is appealable to the EEOC, with an adverse personnel action allegation, which is appealable to the MSPB.

A former attorney advisor for the Social Security Administration, fired in March 2019 for allegedly unsatisfactory performance, brought suit too late to challenge his removal, despite his invocation of an erroneously issued final agency decision that the SSA’s Office of Civil Rights and Equal Opportunity sent him in February 2021, after his time to appeal its initial denial of his discriminatory termination claim had elapsed. An October 2020 MSPB decision sustaining his removal notified him of a deadline to appeal, which he did not meet, and the February 2021 decision—which “should never have gone out”—could not retroactively render his time-barred claims timely (Sierra v. Bisignano, No. 22-1933 (1st Cir. Oct. 27, 2025)).

Fired attorney advisor. The plaintiff worked as an attorney advisor for the Social Security Administration (SSA) Office of Hearing Operations in Ponce, Puerto Rico. The SSA fired him in March 2019, citing his unsatisfactory performance, and a few months after his termination, on July 15, 2019, he filed a complaint with the SSA's Office of Civil Rights and Equal Opportunity (OCREO), alleging that discriminatory and retaliatory conduct had led to his firing.

Reorganization of allegations. In August 2019, OCREO informed him that it had reorganized his allegations, bifurcating his pre-termination discrimination and termination discrimination claims. The termination claim, at issue here, was separated and assigned a new claim number because it was identified as a “mixed case” claim, which combines a bare discrimination allegation that is appealable to the EEOC, with an adverse personnel action allegation—such as termination—that is appealable to the MSPB.

June 2020 AJ decision. The agency investigated and issued a report of investigation (ROI), after which the plaintiff requested a hearing before an EEOC administrative judge (AJ) as to both claims, and in June 2020, the AJ dismissed the termination claim for lack of jurisdiction, remanding the termination claim for a final agency decision (FAD). The AJ recommended that the pre-termination claim be dismissed because the former attorney advisor had elected to raise those matters through the SSA's negotiated grievance process, thus divesting the EEOC of jurisdiction.

The SSA, in turn, issued a final order adopting the EEOC AJ's decision as to the pre-termination claim on June 17, 2020.

Review of termination claim before MSPB. Although his termination claim remained pending before OCREO, the attorney nonetheless sought review of the termination claim before the MSPB. Though he checked “Removal” as the personnel action he wished to appeal, he attached the SSA’s June 2020 final order, which addressed only the pre-termination claim.

The SSA, in response, noted the discrepancy but acknowledged that, while no FAD had been issued for the termination claim, more than 120 days had passed since the attorney filed his original EEOC complaint. Thus, the relevant statutes and regulations did grant the MSPB jurisdiction over the attorney’s termination claim at that time.

October 2020 MSPB decision. On October 30, 2020, the MSPB issued an initial decision for the SSA, sustaining the attorney’s removal. The letter notified the attorney that its “initial decision [would] become final on December 4, 2020,” after which he had 30 calendar days—until January 4, 2021—to file a civil action in federal district court challenging the decision.

February 2021 OCREO decision. Then, on February 9, 2021, OCREO issued a FAD concerning the attorney’s termination claim. This FAD included the agency's typical “Notice of Rights” section explaining that, if the attorney was dissatisfied with the decision, he could appeal to the MSPB or file a civil action within 30 days of receiving the FAD.

His civil action. On the heels of the second FAD, the attorney filed a civil action in federal district court 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).

February 2021 FAD rescinded. But before the SSA responded, on May 5, 2021, OCREO rescinded the February 2021 FAD, explaining that it had been issued erroneously because OCREO had not been notified of the MSPB appeal and corresponding decision until May 4, 2021. According to OCREO, the February FAD “should be disregarded, as the decision [was] not appropriate at [that] time.”

SSA’s motion to dismiss. Moving to dismiss, the SSA asserted that all claims were time-barred. It also contended that the attorney could not rely on the February FAD to seek judicial review because the SSA had issued it in error after the attorney’s time to appeal the MSPB's decision had expired. To support its motion, the SSA attached additional documents related to the administrative proceedings, and it argued that the court should consider them because: (1) the attorney did not dispute their authenticity; (2) the documents were part of an official public record; and (3) the documents were sufficiently referenced in the complaint.

Procedural dispute. Opposing the SSA's motion, the attorney argued that the documents 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.

Dismissed. The district court agreed with the SSA and granted its motion to dismiss. 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 [[the attorney’s]] official record with the Agency.” The district court then considered the timeliness of his claims, finding that they were time-barred because he was properly notified of applicable filing deadlines but failed to meet them.

The district court rejected the attorney’s equitable tolling argument, reasoning that he “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. The former attorney advisor timely appealed the district court's decision to the First Circuit.

Extraneous documents. Affirming, the appeals court first rejected the plaintiff’s challenge to the documents the SSA submitted in support of its assertion that his claim was time-barred. Although a motion to dismiss must be treated as a motion for summary judgment if the district court considers “matters outside the pleadings,” there are “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.” And the documents the SSA submitted fit within this narrow exception.

In his complaint, the attorney asserted that he “exhausted all administrative remedies” before filing in the district court, and to assess that claim, the district court needed to review the administrative record attached to the SSA's motion to dismiss. Because the attorney did not dispute the authenticity of any of the documents submitted, and they were central to his claim, the district court could consider them without converting the motion to dismiss into a motion for summary judgment.

Untimely. The attorney argued that he appealed to the MSPB only because he mistakenly believed that the SSA had issued a FAD with respect to the termination claim and that he never invoked the 120-day jurisdictional exception, under which 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. He thus maintained that the February FAD, rather than the October 2020 MSPB decision, governed his appeal rights. The First Circuit was unpersuaded.

Here, the former attorney advisor 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 appeals court found, the MSPB had jurisdiction to issue its decision on his termination claim. “[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,” the First Circuit summarized. That was what happened here.

Regardless of the attorney’s subjective intent, he elected to appeal his termination claim to the MSPB. The MSPB, in turn, having jurisdiction, decided the claim, and notified him of his right to sue in district court. The attorney then failed to sue within the required timeframe, rendering this action untimely.

What about the February FAD? The former attorney advisor also argued that the that the agency's issuance of the February FAD amounted to an “affirmative misrepresentation,” on which he “relied to file his... [c]omplaint.” Again, the court was unpersuaded.

The February FAD could not form the basis of an equitable estoppel claim because it was issued after the expiration of the 30-day period during which the attorney could have appealed the MSPB's decision. He thus could not have relied on it when he—previously—forewent “his right to commence timely litigation following the MSPB's decision.”

The judgment of the district court was affirmed.

The case is No. 22-1933.

Judge: Gelpí, G.

Attorneys: Bamily Lopez-Ortiz (Lopez Toro) for Giovanni Irizarry Sierra. Mariana E. Bauza Almonte, U.S. Attorney's Office, for Frank J. Bisignano.

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