Opinion

Arthur Karunakaran v. Office of Personnel Management

Court
Merit Systems Protection Board
Filed
Jul 18, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ARTHUR KARUNAKARAN, DOCKET NUMBER

Appellant, DA-0845-19-0291-I-1

v.

OFFICE OF PERSONNEL DATE: July 18, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Arthur Karunakaran , Garland, Texas, pro se.

Michael Shipley , 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 the appeal of an Office of Personnel Management (OPM)

reconsideration decision for failure to prosecute. For the reasons set forth below,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant’s petition for review is DISMISSED as untimely filed without good

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

BACKGROUND

On April 19, 2019, the appellant filed a Board appeal challenging an OPM

reconsideration decision finding that he had been overpaid in Federal Employees’

Retirement System retirement benefits. Initial Appeal File (IAF), Tab 1 at 3,

Tab 4 at 6-7. On June 12, 2019, the administrative judge issued an initial

decision dismissing the appeal for failure to prosecute. IAF, Tab 7, Initial

Decision (ID) at 2-3. The initial decision informed the appellant that it would

become final on July 17, 2019, unless a petition for review was filed by that date.

ID at 3.

Nearly 9 months later, on April 16, 2020, the appellant filed a petition for

review of the initial decision. Petition for Review (PFR) File, Tab 1. On May 1,

2020, the Office of the Clerk of the Board informed the appellant that his petition

for review was untimely filed because it was not postmarked or received in its

office on or before July 17, 2019. PFR File, Tab 2 at 2. The Clerk’s Office

afforded the appellant 15 days to file a motion to accept the petition as timely or

waive the time limit for good cause, and provided him with a motion form to

complete. Id. The appellant did not respond. The agency moved to dismiss the

petition for review as untimely filed. PFR File, Tab 4 at 4.

DISCUSSION OF ARGUMENTS ON REVIEW

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

of the issuance of the initial decision or, if the party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party received the initial decision. Palermo v. Department of

the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The date of a

filing submitted by mail is determined by the postmark date. 5 C.F.R.

§ 1201.4(l).

3

As previously noted, the initial decision provided the appellant with notice

that July 17, 2019, was the last day on which he could file a petition for review

with the Board. ID at 3. The appellant makes no allegation that he did not

receive the initial decision or that he received it more than 5 days after it was

issued. The appellant’s petition for review was postmarked on April 16, 2020;

thus, that is its filing date. PFR File, Tab 1 at 3; see 5 C.F.R. § 1201.4(l).

Therefore, it was filed approximately 9 months late.

The Board will waive the filing deadline for a petition for review only upon

a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;

5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review

has the burden of establishing good cause for the untimely filing by showing that

he exercised due diligence or ordinary prudence under the particular

circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v.

Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether

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

reasonableness of his excuse and the party’s 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. Palermo, 120 M.S.P.R.

694, ¶ 4; 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).

Notwithstanding the appellant’s pro se status, we find that he has failed to

show good cause for a waiver of the filing deadline. His nearly 9-month delay in

filing his petition for review is significant. See Wright v. U.S. Postal Service,

93 M.S.P.R. 444, ¶ 6 (2003) (finding an 8-month filing delay significant).

Moreover, the appellant did not respond to the Office of the Clerk of the Board’s

order to show cause for his untimely filing. To the extent he is alleging that he

exercised due diligence when he reached out to several unidentified

4

representatives on or around January 19, 2020, and that his petition for review

was delayed by his financial difficulties, we are not persuaded that such

circumstances excuse his untimely filing. PFR File, Tab 1 at 1-2; see Robinson v.

Office of Personnel Management, 85 M.S.P.R. 589, ¶ 5 (2000) (explaining that

the appellant’s difficulty in obtaining information to support his case and his

asserted financial difficulties did not excuse his untimely filing).

The Board will find good cause for waiver of its filing time limits when a

party demonstrates that he suffered from an illness that affected his ability to file

on time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). The

notice from the Clerk’s Office informed the appellant that, to establish that an

untimely filing was the result of an illness, he must: (1) identify the time period

during which he suffered from the illness; (2) submit medical or other evidence

showing that he suffered from the alleged illness during that time period; and

(3) explain how the illness prevented him from timely filing his appeal or his

petition for review. PFR File, Tab 2 at 7 n.1; see Lacy, 78 M.S.P.R. at 437.

Here, the appellant does not attribute the untimeliness of his petition for review to

a medical condition. 2 Even if we were to consider such a claim, the appellant

does not satisfy the Lacy standard.

Because the appellant has not shown that he acted with due diligence or

that there were circumstances beyond his control that affected his ability to

timely file his petition for review, we find that he has failed to establish good

cause for his untimely filing of his petition. Accordingly, we dismiss the petition

for review as untimely filed.

2

The appellant asserts that, because he was out of the country and in poor health, he

was unable to “attend court in Dallas.” PFR File, Tab 1 at 1. Such an assertion, which

appears to address the appellant’s failure to participate in the proceedings before the

administrative judge, is not relevant to the timeliness of the petition for review. See

Wright v. Department of the Treasury, 113 M.S.P.R. 124, ¶ 7 (2010) (finding that the

appellant’s assertions regarding the merits of a case do not establish good cause for an

untimely filed petition for review).

5

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 underlying appeal.

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

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

§ 7703(b)(1)(A).

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.

6

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

7

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

8

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.

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

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.

9

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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