Opinion

Chanie Robinson v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jul 12, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHANIE L. ROBINSON, DOCKET NUMBER

Appellant, AT-0843-20-0062-I-1

OFFICE OF PERSONNEL DATE: July 12, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chanie L. Robinson , Tampa, Florida, pro se.

Carla Robinson , 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

dismissed her appeal of a reconsideration decision of the Office of Personnel

Management (OPM) as untimely filed without good cause. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

contains erroneous findings of material fact; 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).

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant challenges the initial decision, dismissing her appeal as

untimely without good cause. She argues, for the first time on review, that her

appeal was timely filed on October 22, 2019, because she received the

reconsideration decision of OPM on October 5, 2019. Petition for Review (PFR)

File, Tab 1 at 4. In support of her argument, she submits an envelope bearing an

illegible postmark, which she asserts is October 2, 2019. PFR File, Tab 3 at 2, 4.

In her narrative response, she provides information regarding contacts that she

made with an employee with OPM concerning her reconsideration request and

information regarding the Board that she sought prior to filing her appeal.

Id. at 2.

In the Order on Timeliness issued on October 29, 2019, the administrative

judge specifically informed the appellant that her appeal may be dismissed if she

did not show that it is either timely or that good cause for waiving the filing

requirement existed. Initial Appeal File (IAF), Tab 5 at 1-3. The order also

informed her that she should not wait to submit any argument and evidence on the

timeliness issue at a later time. Id. at 4. The appellant did not respond to the

order. In her petition for review, she does not dispute that she did not respond to

the order or offer an explanation for not responding to the timeliness order.

PFR File, Tabs 1, 3. 2

When, as here, an appellant fails to respond to an administrative judge’s

order, the U.S. Court of Appeals for the Federal Circuit, our reviewing court, has

found that she does so at her peril and that all litigants before the Board are

obligated to respect the Board’s procedures and the orders of the administrative

judges. Mendoza v. Merit Systems Protection Board, 966 F.2d 650, 653

(Fed. Cir. 1992) (en banc). Therefore, the court has affirmed the Board’s

dismissal of appeals based on untimeliness when the appellants fail to respond to

orders on timeliness issued by administrative judges. Aaron v. Merit Systems

Protection Board, 626 F. App’x 283, 285 (Fed. Cir. 2015); 3 Cheguina v. Merit

Systems Protection Board, 69 F.3d 1143, 1146 (Fed. Cir. 1995); Mendoza,

966 F.2d at 654. Furthermore, the Board has generally found that it will not

consider on review an argument regarding the timeliness of an appeal when the

administrative judge dismissed the appeal after an appellant has inexplicably

failed to respond to a timeliness order. See, e.g., Brown v. U.S. Postal Service,

The administrative judge issued the initial decision after the time limit for the

appellant’s response to the timeliness order was due and she had not filed a response,

but before the time had expired for the agency’s response. IAF, Tab 5 at 4. This was

error. However, we discern no prejudice to the appellant’s rights because she was given

her full opportunity to provide evidence and argument on the timeliness issue.

See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that

an adjudicatory error that is not prejudicial to a party’s substantive rights provides no

basis for reversal of an initial decision); see also Gala v. U.S. Postal Service,

38 M.S.P.R. 474, 478 (1988) (affirming the dismissal of an appeal as untimely when the

premature closing of the record by the administrative judge did not denigrate the

appellant’s substantive rights), aff’d, 878 F.2d 1445 (Fed. Cir. 1989) (Table).

The Board may rely on unpublished Federal Circuit decisions if it finds the court’s

reasoning to be persuasive. Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12

(2011).

52 M.S.P.R. 118, 121-22 (1992); Sledge v. Department of Justice, 44 M.S.P.R.

455, 459, aff’d, 923 F.2d 870 (Fed. Cir. 1990) (Table).

Given the circumstances that the administrative judge specifically informed

the appellant that her appeal would be dismissed on the basis of untimeliness if

she did not prove that it was either timely filed or that good cause existed for

waiving the Board’s filing requirement, and that she should not wait to submit

any argument and evidence at another time, and she offers no explanation

regarding why she did not raise the timeliness argument below, she has failed to

show that the Board should consider her argument on review. See Cheguina,

69 F.3d at 1147; Brown, 52 M.S.P.R. at 121-22.

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.

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.

(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:

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.