Opinion

Nargis Sultana v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Jul 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NARGIS SULTANA, DOCKET NUMBER

Appellant, DC-0752-20-0104-I-1

DEPARTMENT OF COMMERCE, DATE: July 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nargis Sultana , Cary, North Carolina, pro se.

Jennifer Dieterle , Esquire, and William Horrigan , Esquire, Alexandria,

Virginia, 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 action suspending her for 30 days. For the reasons set forth

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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

BACKGROUND

The agency issued a notice of proposed removal charging the appellant, a

Patient Examiner, with 18 specifications of improper conduct. Initial Appeal File

(IAF), Tab 9 at 97-99. The deciding official sustained all the specifications and

the charge, but he mitigated the penalty to a 30-day suspension. Id. at 28.

The appellant filed a Board appeal of her suspension. IAF, Tab 1. She did

not request a hearing. Id. at 2. In her March 30, 2020 initial decision, the

administrative judge sustained the charge, found that the penalty promoted the

efficiency of the service and was reasonable, and that the appellant failed to

establish her affirmative defense. IAF, Tab 23, Initial Decision (ID) at 6-19.

Accordingly, she affirmed the agency’s action. ID at 19. In the initial decision,

the administrative judge specifically stated that the initial decision would become

final on May 4, 2020, unless a petition for review was filed by that date. Id.

The appellant filed a May 6, 2020 petition for review. Petition for Review

(PFR) File, Tab 1. Among other things, the Clerk of the Board informed the

appellant that her petition for review of the March 30, 2020 initial decision was

untimely filed because it was not received in the Clerk’s office or postmarked on

or before May 4, 2020. PFR File, Tab 2 at 1. The Clerk explained that the

Board’s regulations required the appellant to file a motion to accept the filing as

timely and/or waive the time limit for good cause, on or before May 23, 2020. Id.

at 1-2. In its response to the petition for review, the agency contended that the

appellant’s petition for review should be dismissed as untimely filed without

good cause shown for the delay. PFR File, Tab 3 at 4, 7-10. The appellant filed a

reply to the agency’s response, including the required motion to accept the filing

as timely and/or to waive the time limit, on June 8, 2020. PFR File, Tab 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 initial decision informed the appellant that May 4, 2020 was the last

day on which she could file a petition for review with the Board. ID at 19. The

appellant filed her petition for review 2 days later, on May 6, 2020. PFR File,

Tab 1. The Clerk of the Board subsequently informed the appellant that her

petition for review was untimely filed and instructed her to submit evidence and

argument showing that the petition for review was timely filed or that good cause

existed for the delay in filing. PFR File, Tab 2 at 1-2.

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. §§ 1201.113(d), 1201.114(f). The party who submits an untimely

petition for review has the burden of establishing good cause for the untimely

filing by showing that she exercised due diligence or ordinary prudence under the

particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To

determine whether a party has shown good cause, the Board will consider the

length of the delay, the reasonableness of her excuse and the party’s showing of

due diligence, whether she is proceeding pro se, and whether she has presented

evidence of the existence of circumstances beyond her control that affected her

ability to comply with the time limits or of unavoidable casualty or misfortune

which similarly shows a causal relationship to her inability to timely file her

petition. Id.; 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). To establish that an untimely filing

was the result of an illness, the appellant must: (1) identify the time period during

which she suffered from the illness; (2) submit medical evidence showing that she

suffered from the alleged illness during that time period; and (3) explain how the

illness prevented her from timely filing her appeal or a request for an extension of

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

notice informed the appellant of these requirements. PFR File, Tab 2 at 7 n.1.

The appellant does not allege that she failed to receive the initial decision

or that she received it more than 5 days after it was issued She asserted in her

petition for review that she was unable to timely file her petition for review

because of a family emergency, i.e., her 5- year-old daughter had been sick with

high fever and cold. PFR File, Tab 1 at 4. With her reply to the agency’s

response to her petition for review, the appellant included the Motion to Accept

Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit

that the Clerk of the Board instructed her to file. PFR File, Tab 4 at 12-13. She

reiterates that her daughter had been sick, and had a fever, but she does not

identify when that occurred, or provide any further details concerning her

daughter’s illness. PFR File, Tab 4 at 12. She also claims that her 75-year-old

father had been admitted to the emergency room (ER). Id. She states that she

“was worried about [her] daughter and [her] father and could not concentrate or

focus.” Id. The appellant enclosed a letter from a hospital indicating that her

father was admitted on February 28, 2020, and was, as of the March 10, 2020 date

of the letter, admitted and in critical condition in the hospital’s Cardiac Intensive

Care Unit. Id. at 14. She also enclosed a document indicating that, without any

further detail, her father had a “Hospital Visit” from April 27 to May 9, 2020, but

that he also had a “Home Care Visit” on May 3, 2020. Id. at 16.

Other than the general assertion that she was worried, the appellant has not

described how the illnesses of her family members prevented her from filing her

petition for review, and the evidence she submits does not account for the period

of untimeliness. Thus, the appellant’s assertion does not establish good cause for

the filing delay. See Pine v. Department of the Army, 63 M.S.P.R. 381, 383

(1994) (finding that a general claim of a family member’s illness and general

family difficulties that does not specifically account for the period of

untimeliness does not establish good cause for waiver of the filing deadline); see

also Alford v. Office of Personnel Management, 108 M.S.P.R. 414, ¶¶ 10-11

(2008) (finding that a doctor’s statement that the appellant was under his care did

not establish good cause for her untimely petition for appeal based on illness,

when the statement contained no explanation as to how the medical condition

prevented her from filing a timely appeal).

Although the 2-day delay is arguably minimal, regardless of how minimal

the delay, the Board has long held that it will not waive its timeliness

requirements in the absence of a showing of good cause, even in the case of a pro

se appellant. See Gonzalez v. Department of Veterans Affairs , 111 M.S.P.R. 697,

¶ 11 (2009) (stating that the Board has consistently denied a waiver of the filing

deadline if a good reason for the delay is not shown, even when the delay is

minimal and the appellant is pro se); Stromfeld v. Department of Justice,

25 M.S.P.R. 240, 241 (1984) (dismissing a petition for review as untimely filed

when it was filed 1 day late, but the appellant offered no reasonable explanation

for the delay). Thus, even considering the appellant’s pro se status, and the

length of the delay, we find that the appellant has not presented evidence of due

diligence or the existence of circumstances beyond her control that affected her

ability to file her appeal such that we should waive the filing deadline. Gonzalez,

111 M.S.P.R. 697, ¶ 11.

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 appellant’s 30-day suspension.

NOTICE OF APPEAL RIGHTS 2

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).

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:

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.

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. 3 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