Opinion

Harold K Gause v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 20, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 21.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HAROLD K. GAUSE, DOCKET NUMBER

Appellant, DC-3330-19-0333-I-1

DEPARTMENT OF VETERANS DATE: June 20, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Rueben Cartwright , Esquire, Humble, Texas, for the appellant.

Christina J. Knott , Esquire, and Damon A. Pace , Esquire, Washington,

D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

denied his request for corrective action under the under the Veterans Employment

Opportunities Act of 1998 (VEOA). For the reasons set forth below, the

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

appellant’s petition for review is DISMISSED as untimely filed without good

cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

The appellant is an Economic Assistant, GS-0119-07, Step 7, with the

Bureau of Labor Statistics in the Department of Labor. Initial Appeal File (IAF),

Tab 1 at 8. The appellant applied for the position of Equal Employment

Opportunity Specialist, GS-0260-13, with the Deputy Assistant Secretary for

Office of Resolution Management in the Department of Veterans Affairs, but on

January 17, 2019, the agency notified the appellant that he was ineligible for the

position because he did not meet the time-in-grade requirement for the position.

IAF, Tab 1 at 9, Tab 13 at 11-25. The appellant requested reconsideration of this

decision, which the agency denied. IAF, Tab 4 at 26-30. On February 20, 2019,

the appellant timely filed a complaint with the Veterans’ Employment and

Training Service in the Department of Labor (VETS) in which he alleged that, in

determining that he did not meet the time-in-grade requirement, the agency failed

to credit all of his education and work experience. IAF, Tab 1 at 10-13. On

February 25, 2019, VETS informed the appellant that it was closing its case and

informed him of his right to file a Board appeal. IAF, Tab 4 at 31-32. On

February 27, 2019, the appellant timely filed the instant Board appeal; he did not

request a hearing. IAF, Tab 1. He again argued that the agency failed to credit

him for all of his work experience when it determined that he did not meet the

time-in-grade requirement. Id. at 6.

Based on the written record, the administrative judge issued an initial

decision denying the appellant’s request for corrective action. IAF, Tab 19,

Initial Decision (ID). She found that the appellant had established the Board’s

jurisdiction over his VEOA claim. ID at 4-5. She then found that the vacancy

announcement’s requirement that, as a Federal employee currently holding a

General Schedule (GS) position, the appellant must have completed a minimum of

52 weeks in a GS-12 position in order to be eligible for advancement to a GS -13

position was consistent with Office of Personnel Management regulations

governing such advancements. ID at 5-9. The administrative judge also found

that there was no evidence that the appellant had the requisite time in grade and

that, as a current Federal employee, the appellant was not entitled to have his

non-Federal experience credited towards the time-in-grade requirement. ID

at 9-12. Finally, the administrative judge determined that there was no evidence

that the vacancy was cancelled due to the appellant’s application, and to the

extent that the appellant alleged that the agency’s actions occurred in retaliation

for his prior equal employment opportunity activity, he did not offer any evidence

that this occurred or obstructed his right to compete. ID at 12-13.

On June 19, 2019, the appellant filed a petition for review of the initial

decision. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board

informed the appellant that his petition for review appeared to be untimely filed

and that the Board’s regulations require an apparently untimely petition to be

accompanied by a motion to accept the petition as timely or to waive the time

limit for good cause and an affidavit or sworn statement to that effect. PFR File,

Tab 2 at 1-2. The appellant did not file such a motion. The agency opposed the

appellant’s petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review must generally be filed within 35 days after the date

of the issuance of the initial decision or, if a party shows that he received the

initial decision more than 5 days after it was issued, within 30 days after his

receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this

time limit only upon a showing of good cause for the delay in filing.

5 C.F.R. §§ 1201.12, 1201.114(g). To establish good cause for the untimely

filing of a petition, a party must show that he exercised due diligence or ordinary

prudence under the particular circumstances of the case. Shannon v. Department

of Veterans Affairs, 110 M.S.P.R. 365, ¶ 6 (2009). To determine whether an

appellant has shown good cause, the Board will consider the length of the delay,

the reasonableness of his excuse and his showing of due diligence, whether he is

proceeding pro se, and whether he has presented evidence of the existence of

circumstances beyond his control that affected his ability to comply with the time

limits or of unavoidable casualty or misfortune which similarly shows a causal

relationship to his inability to timely file his petition. Id.

The appellant’s petition for review of the May 14, 2019 initial decision was

due on June 18, 2019, and the appellant’s petition for review was postmarked on

June 19, 2019, which was 1 day late. ID at 14; PFR File, Tab 1 at 23, 25; see

5 C.F.R. § 1201.4(l) (stating that the date of filing by mail is determined by the

postmark date). Even a delay of 1 day can warrant dismissal of an untimely

petition for review. Cf. Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶¶ 9-10

(2017) (dismissing an initial appeal filed 1 day late). The appellant has offered

no explanation for the untimely filing or any indication that circumstances

beyond his control prevented him from timely filing his petition. He is

represented and possesses a law degree himself. PFR File, Tab 1 at 24. Under

the circumstances, the appellant has not shown good cause to waive the untimely

filing of his petition for review. 2

Accordingly, we dismiss the petition for review as untimely filed. 3 This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petition for review. The initial decision remains the final decision of the

Board regarding the appellant’s request for corrective action.

Moreover, the appellant’s arguments regarding the merits of his appeal do not

establish a basis on which to grant the petition for review. PFR File, Tab 1.

The appellant’s request to join the instant appeal with a second appeal that is before

the Board on petition for review is denied, as joinder would not expedite the processing

of the cases. PFR File, Tab 1 at 2-3; Gause v. Railroad Retirement Board, MSPB

Docket No. CH-3330-19-0233-I-1, Petition for Review File, Tab 1; see 5 C.F.R.

§ 1201.36(b) (providing that joinder is appropriate if it would expedite processing of

the cases and not adversely affect the interests of the parties).

NOTICE OF APPEAL RIGHTS 4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 5 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the