Opinion

William A Burchett v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM ANTHONY BURCHETT, DOCKET NUMBER

Appellant, PH-0752-19-0157-I-1

UNITED STATES POSTAL SERVICE, DATE: July 22, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

William Anthony Burchett , Newton, West Virginia, pro se.

Lori L. Markle , 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.

FINAL ORDER

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

affirmed the agency’s indefinite suspension action. For the reasons set forth

below, the appellant’s petition for review is DISMISSED as untimely filed

without good cause shown. 5 C.F.R. § 1201.114(e), (g).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

On February 26, 2019, the appellant filed a Board appeal challenging the

agency’s proposal to indefinitely suspend him from his position as an Automotive

Technician. Initial Appeal File (IAF), Tab 1 at 3, Tab 4 at 25-28.

Shortly thereafter, effective March 2, 2019, the agency indefinitely suspended the

appellant because it found reasonable cause to believe that he had committed a

crime for which a term of imprisonment could be imposed. IAF, Tab 4 at 15-19.

The appellant requested a hearing on the matter. IAF, Tab 1 at 2. Following the

appellant’s failure to file a prehearing submission and participate in two

prehearing conferences, IAF, Tab 7 at 1, Tab 13 at 1, the administrative judge

issued a September 30, 2019 initial decision on the record affirming the agency’s

action, IAF, Tab 14, Initial Decision (ID) at 1, 7-8. The administrative

judge notified the appellant that the initial decision would become final on

November 4, 2019, unless a petition for review was filed by that date. ID at 8.

On February 18, 2020, the appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1 at 32. In his petition, the appellant avers that he did

not receive “notifications from MSPB.” Id. at 4, 18. He also makes arguments

ostensibly regarding the merits of his appeal, id. at 5-6, 8-11, 13, 15, and provides

additional documentary evidence, id. at 19-31.

The Office of the Clerk of the Board notified the appellant that his petition

for review was untimely and explained that he must file a motion asking the

Board to accept the petition for review as timely and/or to waive the time limit

for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond.

The agency has responded to the appellant’s petition for review, arguing that it is

untimely filed and that he has not shown good cause for his untimeliness.

PFR File, Tab 3 at 4-9.

DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review must be filed within 35 days after the issuance of the

initial decision, or, if the petitioner shows that he received the initial decision

more than 5 days after the date of the issuance, within 30 days after the date he

received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision

was issued on September 30, 2019, and sent to the appellant electronically the

same day. IAF, Tab 15 at 1. The appellant is a registered e-filer, IAF, Tab 1 at 2,

and Board documents served electronically on registered e-filers are deemed to

have been received on the date of electronic submission, 5 C.F.R. § 1201.14(m)

(2) (2019). Thus, the appellant’s petition for review is untimely by more than

3 months. PFR File, Tab 1; see 5 C.F.R. § 1201.114(e).

The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).

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).

In determining whether there is good cause, the Board considers the length of the

delay, the reasonableness of the excuse and showing of due diligence, whether the

appellant 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 file a timely petition. See Wyeroski v.

Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950

(Fed. Cir. 2007).

We find that the appellant has not demonstrated good cause for the

untimely filing of his petition for review. Although the appellant is pro se, his

3-month delay in filing is not minimal and he failed to respond to the notice

affording him the opportunity to file a motion to accept the filing as timely and/or

to waive the time limit for good cause. See Cabarloc v. Department of Veterans

Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se

appellant’s 10-day delay in filing a petition for review when he failed to respond

to the Clerk’s notice regarding timeliness); see also Floyd v. Office of Personnel

Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal).

In his petition for review, the appellant asserts that he received a call from

“a lady representing MSPB” who informed him that his case has been continued

for 30 days, 2 and, thereafter, he did not receive any additional filings from the

Board or “see any notifications from MSPB.” PFR File, Tab 1 at 4, 18.

Insofar as the record reflects that all Board filings, including the initial decision,

were electronically served on the appellant, this assertion does not constitute

good cause. See Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 7

(2009) (finding that the appellant failed to show that he exercised due diligence in

monitoring his case as a registered e-filer); 5 C.F.R. § 1201.14(j)(3) (2019)

(stating that e-filers are responsible for monitoring case activity at the Repository

at e-Appeal Online to ensure that they have received all case-related documents).

The appellant also alleges the following: (1) the agency misrepresented his

employment status to the State of West Virginia; (2) the agency is falsifying

vehicle maintenance records; (3) the agency violated his due process rights;

(4) his suspension did not promote the efficiency of the service; and (5) the initial

decision “was one sided.” PFR File, Tab 1 at 5-6, 8-11, 13, 15. However, these

ostensibly merit-based arguments do not show good cause for his untimeliness.

See Guevara v. Department of the Navy, 112 M.S.P.R. 39, ¶ 7 (2009) (finding that

the appellant failed to establish good cause for his untimely filed petition for

review when he merely argued the merits of his Board appeal).

The appellant provides numerous documents with his petition for review,

including information related to vehicle safety issues and his claim for

unemployment benefits. PFR File, Tab 1 at 19-31. However, he does not allege,

On May 29, 2019, the administrative judge suspended the matter for 30 days because

the underlying criminal matter was ongoing. IAF, Tab 9 at 1. The Order Suspending

Case Processing clearly stated that case processing would resume on June 28, 2019. Id.

and nothing in his petition for review suggests, that the documents constitute new

evidence that was unavailable to him prior to the close of the record. 3

See Agbenyeke v. Department of Justice, 111 M.S.P.R. 140, ¶ 12 (2009)

(explaining that the discovery of new evidence may establish good cause for the

untimely filing of a petition for review if, among other things, the evidence was

not readily available before the close of the record). Indeed, all of the appellant’s

arguments appear to be based on information previously available to him such

that he could have timely filed a petition for review on these bases. See Wilson v.

General Services Administration, 15 M.S.P.R. 45, 47 (1983) (finding that the

appellant had not shown good cause for his untimeliness because, among other

things, he failed to show that the “new” information on which he relied was

unavailable, despite due diligence, before the record closed).

Accordingly, we dismiss the petition for review as untimely filed. 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 merits of the appeal.

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

Indeed, although the appellant provides a letter that postdates the initial decision,

PFR File, Tab 1 at 19-20, the substance of the letter seemingly concerns events that

occurred prior to the issuance of the initial decision, see 5 C.F.R. § 1201.115(d)

(“To constitute new evidence, the information contained in the documents, not just the

documents themselves, must have been unavailable despite due diligence when the

record closed.”).

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.

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:

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).

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.

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