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, 

 (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 

(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." 

(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, 

 (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.,

 (1st Cir. 2001) (quoting Beddall v. State St. Bank

& Tr. Co., 

 (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, 

.

                 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., 

 (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, 

.                   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, 

, 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., 

, 942 (1st Cir. 2023) (quoting LaChapelle v. Berkshire Life

Ins. Co., 

 (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."                   

(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.          

;

(a), (b).     And the initial choice typically

governs the forum through which a plaintiff must exhaust his

administrative remedies.    Stoll v. Principi, 

(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").

(e)(2); 

(d)(1)(i); 

(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.   

(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    

(b);      see   also   Martinez       v.

Shimseki, No. 10-cv-1304, 

, 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, 

 (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.            

(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, 

.             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 

(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, 

(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 

(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, 

 (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 (

(b)), and that the current regulations do not show any
significant alteration that would change the outcome. We have not
found 

(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

claim.

            The rule makes sense.   The regulations are designed to

prevent simultaneous processing of discrimination claims before

the MSPB and the agency.    See Stoll, 

 (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, 

 (2017) (quoting Elgin

v. Dep't of Treasury, 

 (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,

 (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.        

(b)(2).          That limitations

period is subject to equitable tolling, which allows courts to

extend filing deadlines in exceptional circumstances.              Nunnally v.

MacCausland, 

 (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., 

 (1st Cir. 2009) (citation

omitted).    It does not apply if the delay was the result of the

plaintiff's own "lack of diligence."            

 (citing Cao v. Puerto

Rico, 

 (1st Cir. 2008)).            That is, courts will

not use it to "rescue a plaintiff" from missed deadlines caused by

                                    - 19 -
neglect or mistake. See 

 "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.,

 (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., 

 (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, 

 (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, 

 (1st Cir. 2011) (quoting

Ramírez-Carlo v. United States, 

 (1st Cir. 2007)).

To demonstrate entitlement to equitable estoppel, a plaintiff must


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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, 

 (citation modified).             Equitable estoppel is to be used

sparingly against the government.               See Nagle v. Acton-Boxborough

Reg'l Sch. Dist., 

 (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.




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