The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY HILTON, DOCKET NUMBER
Appellant, AT-0752-20-0053-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 8, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kharimah R. Dessow , Esquire, Sumter, South Carolina, for the appellant.
Brandon L. Truman , Esquire, and Roderick Eves , Saint Louis, Missouri, 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
dismissed his removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In a decision letter dated August 20, 2019, the agency informed the
appellant that he was being removed from his position as a clerk effective
August 30, 2019, for failure to be regular in attendance and failure to follow
instructions. Initial Appeal File (IAF), Tab 8 at 8-11. The decision letter notified
the appellant of his right to appeal the decision to the Board within 30 days of the
effective date of the decision. Id. at 10. The appellant, through his attorney
representative, appealed his removal to the Board on October 15, 2019, and he
requested a hearing. IAF, Tab 1. Thereafter, the agency filed a motion to dismiss
the matter and to stay the production of the agency file, contending that the
appeal was untimely filed. IAF, Tab 8 at 4-6. With its motion, the agency
provided U.S. Postal Service tracking slips suggesting that the appellant received
the agency’s decision letter on August 23, 2019. Id. at 13-14.
The administrative judge informed the appellant of his burden regarding
timeliness and ordered him to file evidence and argument regarding the same.
IAF, Tab 11 at 1-5. In response, the appellant, through his attorney
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representative, acknowledged that his appeal was untimely; however, he asserted
in general terms that the untimeliness was due to circumstances beyond his
control, i.e., his attorney’s failure to timely file on his behalf. IAF, Tab 12 at 4-5.
Without holding the appellant’s requested hearing, the administrative judge
issued an initial decision dismissing the appeal as untimely filed. IAF, Tab 13,
Initial Decision (ID) at 1, 5. In so doing, the administrative judge found that the
appellant had not disputed that he had received the decision letter on August 23,
2019, and thus his appeal, filed on October 15, 2019, was 14 days late. ID at 2-3.
She further found that the appellant failed to show good cause for the filing delay.
ID at 3-5. To this end, she concluded that the agency’s decision letter clearly
stated that the appellant needed to file with the Board within 30 days of the
effective date of his removal and that the mere assertion that his attorney failed to
timely file his appeal, without more, did not justify waiver of the time limit. ID
at 4.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In his petition for review,
the appellant, through his attorney representative, avers that his diligent efforts to
pursue his appeal were thwarted by his attorney and his attorney’s paralegal. PFR
File, Tab 1 at 4-6.
DISCUSSION OF ARGUMENTS ON REVIEW
An appeal that is not filed within the applicable time limit will be
dismissed as untimely unless the appellant shows good cause for the delay.
5 C.F.R. § 1201.22(c); see Walls v. Merit Systems Protection Board, 29 F.3d
1578, 1581 (Fed. Cir. 1994). To establish good cause for an untimely filing, the
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Alonzo v. Department of the Air Force,
4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good cause,
the Board will consider the length of the delay, the reasonableness of his excuse
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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 that similarly shows a causal relationship to his inability to timely
file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant has not challenged, and we discern no reason to disturb,
the administrative judge’s conclusion that the appellant’s appeal was untimely
filed by 14 days. ID at 2-3; see 5 C.F.R. § 1201.22(b)(1). Instead, he reasserts
that his untimeliness was the result of his attorney’s negligence. PFR File, Tab 1
at 5. We find this contention unavailing. As set forth in the initial decision, the
Board has routinely held that appellants are responsible for the actions and
inactions of their chosen representatives. ID at 4; see, e.g., Sparks v. U.S. Postal
Service, 32 M.S.P.R. 422, 425 (1987). Indeed, an appellant has a personal duty to
monitor the progress of his appeal and not leave the matter entirely to his
attorney. 2 See Miller v. Department of Homeland Security, 110 M.S.P.R. 258,
¶ 12 (2008).
The appellant also asserts, for the first time, that his attorney’s paralegal
neglected to file his appeal as instructed by his attorney. PFR File, Tab 1 at 5.
To this end, he avers that “the deliberate actions of [his] attorney’s paralegal rise
to the level of negligence such that the regulatory filing should be waived.” Id.
at 4. We find these assertions unavailing. The Board generally will not consider
an argument raised for the first time in a petition for review absent a showing that
2
The appellant asserted before the administrative judge that he had started “the process
of applying for medical retirement disability,” IAF, Tab 1 at 6, and he provided
documents regarding his medical conditions and his applications for disability benefits
associated therewith, id. at 7-27. The administrative judge explained that, if illness had
prevented the appellant from timely filing his appeal, then he must provide the Board
with additional information. IAF, Tab 11 at 3-4. The appellant did not provide any
such additional information or argument. Thus, we find that the appellant has failed to
demonstrate good cause for his untimely filing on the basis of illness, or mental or
physical capacity. See Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).
5
it is based on new and material evidence not previously available despite the
party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). Here, following the administrative judge’s order regarding timeliness,
IAF, Tab 11 at 1-5, the appellant indicated only that his attorney had failed to
timely “file a reply,” IAF, Tab 12 at 5. The appellant provided sparse detail
regarding this failure; indeed, he made no mention of his attorney’s paralegal. Id.
at 4-5.
Moreover, even considering the appellant’s arguments regarding his
attorney’s paralegal on review, a different outcome is not warranted. To the
extent the appellant asserts that the paralegal’s failure to timely file his Board
appeal was a clerical error, PFR File, Tab 1 at 5, his assertion is unavailing, see
Moore v. Department of the Treasury, 41 M.S.P.R. 35, 37 (1989) (explaining that
clerical errors by an attorney’s support staff do not constitute good cause for an
untimely filing). To the extent he alleges that his diligent efforts to prosecute his
appeal were thwarted by deception and negligence on part of his attorney and/or
her paralegal, PFR File, Tab 1 at 4-5, his contentions are similarly unavailing.
Although the Board recognizes a limited exception to the well-settled rule that an
appellant should be held responsible for the actions and inactions of his
representative when an appellant has proven that his diligent efforts to prosecute
his appeal were thwarted by his representative’s deception and negligence, Miller,
110 M.S.P.R. 258, ¶ 11, here, there is no indication that either the appellant or his
attorney followed up to ensure that the appeal was actually filed until 14 days
after the time limit, PFR File, Tab 1 at 4-5. The appellant avers only that he “was
reassured that he would be able to meet the filing deadline”; he does not indicate
that he monitored Board filings to ensure that his appeal was actually filed. Id.
Thus, we discern no basis to disturb the administrative judge’s finding that the
appellant has not shown good cause for the filing delay. ID at 3-5; see D’Aquin
v. Office of Personnel Management, 65 M.S.P.R. 499, 505 (1994) (finding that
the appellant failed to show good cause for her delay in filing when she did not
6
inquire into the status of her appeal until after the filing deadline had passed); cf.
Dunbar v. Department of the Navy, 43 M.S.P.R. 640, 643-45 (1990) (finding that
the appellant was not bound by his attorney’s actions when the appellant
diligently monitored the progress of his appeal and was misinformed by his
attorney that his appeal had been filed).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS 3
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
3
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.
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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:
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
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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
9
(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. 4 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
following address:
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.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.