Before Mayer, Chief Judge, Newman and Lourie, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Leonard P. Machulas seeks review of the December 5, 1997, decision of the Merit Systems Protection Board, Docket No. PH1221970357-W-1, dismissing his independent right of action ("IRA") appeal for lack of jurisdiction. The initial decision became final on October 8, 1998. We affirm.
We must affirm the board's decision unless it is "(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence." 5 U.S.C. § 7703(c) (1994).
A petition for an IRA must be filed within sixty-five days after the Office of Special Counsel ("OSC") notifies the petitioner that it is terminating the investigation of his allegations. See 5 C.F.R. § 1209.5(a) (1998); see also 5 U.S.C. § 1214(a)(3) (1994). The parties agree that Machulas did not file his IRA appeal within this time period. Machulas argues, however, that the board should have excused his tardiness because the OSC failed to notify him of his appeal rights. See Shiflett v. United States Postal Serv., 839 F.2d 669, 674 (Fed. Cir. 1988) (holding that the agency's failure "to give notice to petitioner of her appeal rights constituted good cause for the late filing").
In certain types of cases, the board may waive appeal time limits when the petitioner shows good cause for the delay. See 5 C.F.R. § 1201.22(c) (1998). Section 1201.22(c) applies to all appeals governed by 5 C.F.R. pt. 1209. See id. § 1209.3. Although part 1209 includes IRA appeals, the board held that section 1201.22(c) does not apply to Machulas' appeal because the Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16 (codified in scattered sections of 5 U.S.C.) ("WPA"), "not only created the right to file an IRA appeal, but also set a statutory deadline for the filing of such an appeal, without making any provision for the acceptance of late filings."
We agree that the WPA precludes waiving the filing deadline for good cause. The statute states that an IRA appeal may be filed if "no more than 60 days have elapsed since notification was provided to [the] employee . . . that [OSC's] investigation was terminated." 5 U.S.C. § 1214(a)(3). This language unambiguously does not allow for extensions of the filing deadline for good cause. Cf. id. § 7701(e)(1) (allowing extensions to a 30-day filing deadline for good cause). Interpreting sections 1201.22(c) and 1209.3 to authorize a good cause waiver for tardy IRA appeals would create a conflict between these regulations and the statute. Because this type of conflict must be avoided, see Bendure v. United States, 695 F.2d 1383, 1386-87 (Fed. Cir. 1982), the board correctly held that a good cause waiver was unavailable to Machulas. Although the statute uses a sixty day period and the regulation uses a sixty-five day period, we need not address at this time whether the regulation impermissibly modifies the statute by extending the filing deadline by five days because Machulas met neither deadline. According to the board, the phrase "notification was provided" in 5 U.S.C. § 1214(a)(3) "could be subject to more than one interpretation. It could refer to the date OSC issued its termination notice, the date it mailed this notice to the employee, or to the date the employee received the notice." Wood v. Department of Air Force, 54 M.S.P.R. 587, 591 (1992). The implementing regulation was meant "to clarify that the time for filing an individual right of action appeal . . . begins to run from the date of issuance of the Special Counsel's written notification to the appellant and to increase the time limit for filing from 60 to 65 days to allow for mailing time." Practices and Procedures for Appeals and Stay Requests of Personnel Actions Allegedly Based on Whistleblowing, 55 Fed. Reg. 28,591, 28,592 (1990).
The board also found that Machulas failed to allege any facts that would bring him within the doctrine of equitable tolling, even assuming it applies in this context. This finding is not clearly erroneous and because we uphold the board's decision to dismiss the IRA appeal ...