The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDALL E. WILSON, DOCKET NUMBER
Appellant, CH-0714-19-0113-I-1
v.
DEPARTMENT OF VETERANS DATE: July 18, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Randall E. Wilson , Decatur, Illinois, pro se.
Erin E. Milligan , Esquire, St. 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.
REMAND ORDER
The appellant has filed an untimely petition for review of the initial
decision, which dismissed his removal appeal as untimely filed with no showing
of good cause for the delay. For the reasons discussed below, we DISMISS the
petition for review as untimely filed, but REOPEN the appeal on our own motion
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
pursuant to 5 C.F.R. § 1201.118, VACATE the initial decision, and REMAND the
case to the regional office for further adjudication in accordance with this
Remand Order.
BACKGROUND
Effective September 24, 2018, the agency removed the appellant pursuant
to the authority set forth in the Department of Veterans Affairs Accountability
and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L.
No. 115-41, § 202(a), 131 Stat. 862, 869-73 (2017) (codified as amended at
38 U.S.C. § 714), from his Housekeeping Aid position with the agency’s
Environmental Management Service. Initial Appeal File (IAF), Tab 1 at 7, 11. In
its decision letter, the agency informed the appellant of his options in seeking
review of the action, including filing a Board appeal, seeking corrective action
from the Office of Special Counsel, filing a grievance, or filing a discrimination
complaint with the agency’s Office of Resolution Management (ORM). Id.
at 7-9. The decision letter notified the appellant of the 10-business-day deadline
for filing a Board appeal, as well as the 45-calendar-day deadline for contacting
ORM, and stated that “[w]hichever is filed first . . . shall be considered an
election by you to proceed under that appeal process.” Id. at 8-9.
On October 10, 2018, the appellant filed a formal equal employment
opportunity (EEO) complaint with ORM alleging that his removal was based on
race and sex discrimination. Id. at 16. Thereafter, he filed a December 3, 2018
Board appeal also challenging his removal and referencing his EEO complaint.
Id. at 2, 20, 22.
The administrative judge ordered the agency to submit, within 20 days of
the date of the order, a statement regarding whether the appellant had filed a
formal complaint of discrimination on the action being appealed, as well as the
current status of the complaint if one had been filed. IAF, Tab 2 at 6, 8. In
addition, the administrative judge informed the appellant that there was a
3
question as to whether he had filed his appeal within the 10-business-day time
limit required by 38 U.S.C. § 714(c)(4)(B) and ordered him to show that he had
timely filed his appeal or there was a basis to accept his late-filed appeal. IAF,
Tab 4 at 1-4. The administrative judge also ordered the agency to file any
evidence and argument it had on the timeliness issue. Id. at 4.
After both the appellant and the agency did not respond to the orders, the
administrative judge dismissed the appeal as untimely filed with no showing of
good cause for the delay. IAF, Tab 6, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant did not file his appeal within the
10-business-day time limit set forth at 38 U.S.C. § 714(c)(4)(B). ID at 3. He
further found that the appellant offered no excuse for the delay and made no
showing of due diligence, noting that any inexperience with legal matters or
unfamiliarity with Board procedures did not warrant a waiver of the time limit.
ID at 3. The appellant has filed an untimely petition for review, to which the
agency has not responded. Petition for Review (PFR) File, Tab 1. The Office of
the Clerk of the Board advised the appellant that his petition for review was
untimely and provided him with an opportunity to request that his petition be
accepted as timely or show good cause for his delay. PFR File, Tab 2 at 2.
Neither party responded to the Clerk’s Office.
ANALYSIS
We dismiss the petition for review as untimely filed with no showing of good
cause for the delay.
Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that he received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
administrative judge informed the appellant that the initial decision would
become final on April 4, 2019, unless a petition for review was filed by that date.
ID at 4. The appellant filed his petition for review on September 18, 2019, over
4
5 months late. 2 Petition for Review (PFR) File, Tab 1 at 10. Although the Acting
Clerk of the Board afforded the appellant an opportunity to show that his petition
for review was timely filed or that good cause existed for the late filing, PFR
File, Tab 2, the appellant did not respond to the Acting Clerk’s notice.
The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the untimely filing. 5 C.F.R. § 1201.114(g). To
establish good cause, the appellant must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Palermo v.
Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014). 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
limit or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Id.
The appellant’s arguments on review regarding the merits of his removal,
PFR File, Tab 1 at 3, are not relevant to the timeliness of his petition for review,
see Marasco v. U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995). Moreover, his
claim that his attorney “quit the case,” PFR File, Tab 1 at 3, does not establish
good cause for the filing delay, see Lawson v. Department of Homeland Security ,
102 M.S.P.R. 185, ¶ 6 (2006); Huskins v. U.S. Postal Service, 100 M.S.P.R. 664,
¶ 6 (2006). Although the appellant asserts that his “mail” was sent to the wrong
address, PFR File, Tab 1 at 3, it is not clear whether he is referring to the
2
On September 18, 2019, the appellant mailed his petition for review to the Board’s
Central Regional Office, which then forwarded it to the Office of the Clerk of the
Board. Petition for Review File, Tab 1 at 1, 10. A pleading submitted by mail
generally is considered to be filed on the postmark date, 5 C.F.R. § 1201.4(l), even
when it is submitted to the wrong Board office, Branch v. Department of the Army,
110 M.S.P.R. 663, ¶¶ 6-7 (2009). Thus, we find that September 18, 2019, is the filing
date of the appellant’s petition for review.
5
agency’s decision notice or the Board’s initial decision. 3 In any event, the
certificate of service attached to the initial decision, IAF, Tab 7, shows that it was
sent by mail to his address of record, IAF, Tab 1 at 1, which is also the same
return address identified in his petition for review, PFR File, Tab 1 at 2, 10.
Although the appellant’s pro se status weighs in favor of finding good
cause, this factor is outweighed by the remaining factors. See Allen v. Office of
Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004). Moreover, the length
of the appellant’s 5-month filing delay is significant. See Summerset v.
Department of the Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing
delay significant). In addition, the appellant has not presented any evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from timely filing a petition for review. Therefore, under the
circumstances of this appeal, including the appellant’s failure to respond to the
Office of the Clerk of the Board’s notice, we find that the appellant has failed to
demonstrate due diligence or ordinary prudence that would establish good cause
for his untimely filing. See Cabarloc v. Department of Veterans Affairs,
112 M.S.P.R. 453, ¶¶ 9-11 (2009) (dismissing the pro se appellant’s petition for
review as untimely filed with no good cause shown for the 10-day delay when he
failed to respond to the Clerk’s notice regarding timeliness).
We reopen the appeal on our own motion, vacate the initial decision, and remand
the appeal for further adjudication consistent with this Remand Order.
Parties who appear before the Board are expected to adhere to filing
deadlines, and ordinarily, the Board will not reopen an appeal to cure the
untimeliness of a petition for review. Gordon-Cureton v. U.S. Postal Service,
107 M.S.P.R. 79, ¶ 11 (2007). Still, the Board will not turn a blind eye to clear
and material errors that have prejudiced a party’s rights. Id. Notwithstanding the
untimeliness of a petition for review, the Board has the discretion to reopen an
3
The appellant has not alleged on review that he received the initial decision more than
5 calendar days after the February 28, 2019 date of its issuance. See ID at 1. Thus, he
has not alleged or shown that he filed a timely petition for review.
6
appeal under 5 C.F.R. § 1201.118 to prevent a manifest injustice when an error
implicates a party’s basic procedural rights. Id. Moreover, the Board recognizes
that reopening and reconsideration may be appropriate when there is clear and
material legal error, such as a conflict between the holding of the decision and a
controlling precedent, either because of oversight or a change in the controlling
law. McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1372-73 (Fed.
Cir. 2016); Beck v. General Services Administration, 86 M.S.P.R. 489, 494
(2000). Here, as discussed below, the administrative judge did not have the
benefit of the Board’s decision in Wilson v. Department of Veterans Affairs,
2022 MSPB 7, which clarified the application of the 10-business-day time limit
set forth at 38 U.S.C. § 714(c)(4)(B). ID at 3. Under Wilson, the appeal was not
untimely filed. We therefore find it appropriate to reopen this appeal. See
Gordon-Cureton, 107 M.S.P.R. 79, ¶ 11.
As set forth above, the agency took the instant action under the VA
Accountability Act, which permits an employee to appeal a removal to the Board
“not later than 10 business days after the date of” the action. 38 U.S.C.
§ 714(c)(4)(B). Because the agency effected the removal on September 24, 2018,
an appeal under section 714(c)(4)(B) would have been due on or about October 9,
2018. 4 Thus, the appellant’s December 3, 2018 Board appeal would be nearly
2 months untimely filed under the time limit set forth at section 714(c)(4)(B).
Nevertheless, section 714 is silent as to the procedures and filing times for
a Board appeal in which, as here, an appellant seeks review of a matter within the
Board’s appellate jurisdiction and also raises a claim of discrimination or
retaliation in violation of EEO statutes, known as a mixed case. Wilson v.
Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 12, 17. An appellant has two
options when filing a mixed case: (1) he may initially file a mixed-case EEO
complaint with his employing agency followed by an appeal to the Board; or
4
In calculating this deadline, we note that October 8, 2018, the second Monday in
October, was designated a legal public holiday. 5 U.S.C. § 6103(a).
7
(2) he may file a mixed-case appeal with the Board and raise his discrimination
claims in connection with that appeal. Id., ¶ 13. An employee may file either a
mixed-case complaint or a mixed-case appeal, but not both, and whichever is
filed first is deemed an election to proceed in that forum. Id.
Under 5 U.S.C. § 7702(a)(2), an employee may file an EEO complaint in a
mixed case, which an agency “shall resolve . . . within 120 days.” If the agency
fails to issue a final decision within 120 days, the employee’s right to file a Board
appeal vests and he may appeal to the Board “at any time” thereafter. 5 U.S.C.
§ 7702(a)(2), (e)(2); Wilson, 2022 MSPB 7, ¶ 13; 5 C.F.R. §§ 1201.151(a)(1),
1201.154(b)(2); 29 C.F.R. § 1614.302(d)(1)(i). In Wilson, 2022 MSPB 7, ¶ 19,
which was issued after the initial decision in this case, the Board held that if an
appealable action is taken under 38 U.S.C. § 714 against a “covered individual,”
like the appellant, and such individual has first filed a formal discrimination
complaint with the agency from such action, the time limit at 5 U.S.C.
§ 7702(e)(2) applies to any Board appeal if the agency has not issued a decision
within 120 days.
Here, the appellant filed a formal discrimination complaint with the agency
on October 10, 2018, before he filed his December 3, 2018 Board appeal. IAF,
Tab 1 at 16, 22. Thus, he elected to first proceed through the EEO complaint
process before exercising his right to file a Board appeal, and the procedures and
time limits of 5 U.S.C. § 7702(e)(2) and 5 C.F.R. § 1201.154(a)-(b) apply in this
case. See Wilson, 2022 MSPB 7, ¶ 25; see also Lang v. Merit Systems Protection
Board, 219 F.3d 1345, 1347 (Fed. Cir. 2000); Augustine v. Department of Justice,
100 M.S.P.R. 156, ¶ 7 (2005).
Under 5 C.F.R. § 1201.154(b)(2), if an appellant has timely filed a formal
complaint of discrimination with his agency, and the agency has not resolved the
matter or issued a final decision on the formal complaint with 120 days, he may
appeal the matter directly to the Board at any time after the expiration of
120 calendar days. An appeal that would initially be considered prematurely filed
8
before the 120-day mark may later be found by the Board to be timely filed upon
the expiration of the 120 days. Augustine, 100 M.S.P.R. 156, ¶¶ 9, 11; see
5 C.F.R. § 1201.154(c); see also Wooten v. Department of Veterans Affairs,
96 M.S.P.R. 671, ¶ 9 (2004) (“The Board’s practice is to adjudicate an appeal that
was premature when filed but becomes timely while pending before the Board.”).
There is no indication that the agency dismissed the appellant’s complaint
of discrimination as untimely filed. Rather, the agency accepted it for
investigation. IAF, Tab 1 at 16. In any event, it appears that the appellant timely
filed his formal complaint of discrimination within 15 days of receiving notice of
his right to do so. See 29 C.F.R. § 1614.106(b); IAF, Tab 1 at 16. Thus, there is
no basis for finding that the time limit set forth at 5 C.F.R. § 1201.154(b) does
not apply because of an untimely filed discrimination complaint. See McCoy v.
U.S. Postal Service, 108 M.S.P.R. 160, ¶ 11 (2008); Green v. Department of the
Interior, 72 M.S.P.R. 667, 671 (1996); see also Moore v. U.S. Postal Service,
91 M.S.P.R. 277, ¶ 8 (2002) (holding that the Board may not dismiss an appeal as
untimely filed under section 1201.154 based on the untimeliness of a formal EEO
complaint absent evidence of either a final agency decision dismissing the EEO
complaint as untimely that was not appealed to the Equal Employment
Opportunity Commission (EEOC), or a decision by the EEOC dismissing the
complaint as untimely).
Having found that the appellant timely filed a formal discrimination
complaint with the agency, his Board appeal, in turn, was filed before 120 days
elapsed from the date he filed his discrimination complaint. 5 Under these
circumstances, the appeal should have been dismissed without prejudice as
prematurely filed. See Williams v. Department of the Army, 59 M.S.P.R. 477,
479-80 (1993). Because the 120-day period has now elapsed, however, and there
is no indication that the agency has issued a final decision on the appellant’s
5
As set forth above, although the administrative judge ordered the agency to submit
information regarding the status of any formal discrimination complaint filed by the
appellant and any evidence regarding the timeliness issue, it did not do so.
9
formal discrimination complaint, we find that the appeal is currently ripe for
adjudication and that remand is appropriate. See Williams, 59 M.S.P.R. at 480;
see also Kozak v. Department of Health and Human Services, 90 M.S.P.R. 398,
¶ 7 (2001); Johnson v. U.S. Postal Service, 76 M.S.P.R. 289, 292 (1997);
Shalwala v. Small Business Administration, 70 M.S.P.R. 168, 171 (1996). On
remand, therefore, the administrative judge shall adjudicate the merits of the
appeal.
After the agency removed the appellant, the Board and the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit) issued decisions interpreting the
VA Accountability Act. For example, the court determined that although the
Board reviews the agency’s action to determine if it is supported by substantial
evidence pursuant to 5 U.S.C. § 714(d), the deciding official must determine
whether the agency proved the misconduct underlying its action by preponderant
evidence. Rodgriguez v. Department of Veterans Affairs, 8 F.4th 1290,
1296-1301 (Fed. Cir. 2021). The Board reviews an agency’s improper application
of the substantial evidence standard to determine if the error was harmful.
Semenov v. Department of Veterans Affairs, 2023 MSPB 16, ¶¶ 21-24.
As another example, the court and the Board have both held that although
the Board cannot mitigate the penalty pursuant to 38 U.S.C. § 714(d), it still
reviews the penalty to determine whether the agency proved by substantial
evidence that the deciding official properly considered the relevant factors under
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and whether
the agency’s penalty was reasonable, Rodriguez, 8 F.4th at 1301-03; Semenov,
2023 MSPB 16, ¶¶ 45-50. If not, the Board will remand the appellant’s removal
to the agency for a new decision. Semenov, 2023 MSPB 16, ¶ 50.
This case law applies to this appeal. See id., ¶ 22 (finding that the holding
in Rodriguez applies to all pending cases, regardless of when the events at issue
took place). However, it was issued after the February 28, 2019 initial decision.
Further, the focus of the case below was on the timeliness issue. IAF, Tab 3.
10
Therefore, on remand the administrative judge should provide the parties with an
opportunity to conduct discovery regarding the merits of the appeal, including
any potential harmful error or penalty issues, before holding the appellant’s
requested hearing. IAF, Tab 1 at 1.
ORDER
For the above reasons, we vacate the initial decision and remand this case
to the regional office for further adjudication in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.