The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HERBERT J. BROWN, DOCKET NUMBER
Appellant, AT-0714-20-0391-I-1
v.
DEPARTMENT OF VETERANS DATE: July 29, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Raymond Mitchell , Columbia, South Carolina, for the appellant.
Mary Bea Sellers , Esquire, Montgomery, Alabama, 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
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal pursuant to 38 U.S.C. § 714. 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).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant filed an appeal of his removal, and the administrative judge
held a hearing. Initial Appeal File (IAF), Tabs 1, 16. The administrative judge
issued a July 21, 2020 initial decision affirming the agency’s action. IAF,
Tab 20, Initial Decision (ID). The initial decision specifically stated that the
deadline to file a petition for review was August 25, 2020, and provided
information on how to file a petition for review. ID at 12-13. The appellant filed
a petition for review, which the Board received on December 18, 2020. Petition
for Review (PFR) File, Tab 1 at 1. The petition for review is dated December 9,
2020, and the envelope in which it was mailed bears a December 11, 2020
postmark. Id. at 1, 4.
¶3 The Acting Clerk of the Board notified the appellant that, because he filed
his petition after August 25, 2020, i.e., over 35 days following the issuance of the
July 21, 2020 initial decision, it was untimely filed. PFR File, Tab 2 at 1. The
letter explained to the appellant that the Board’s regulations require a petition for
review that appears untimely be accompanied by a motion to accept the filing as
timely and/or to waive the time limit for good cause. Id. at 2. The letter set a
deadline of January 2, 2021 for the appellant to submit the motion. Id. The
appellant did not file the required motion concerning the timeliness of his petition
for review. The agency has filed a response to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive this time limit only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for
the untimely filing of a petition, a party must show that he exercised due
3
diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980)). 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 limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to her inability to timely file his petition.
Id. (citing 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)).
¶5 Here, as noted above, the deadline for filing a petition for review was
August 25, 2020, and the envelope containing the petition for review bears a
December 11, 2020 postmark, making it 108 days late. ID at 12; PFR File, Tab 1
at 4. Although the Clerk afforded the appellant the opportunity to prove that his
petition for review was timely filed or show good cause for the untimely filing,
the appellant has not responded. PFR File, Tab 2 at 2.
¶6 The appellant’s representative wrote in the unsworn petition for review that
the appellant did not receive the July 21, 2020 initial decision until November
2020, after he requested a copy of the decision from the Board. PFR File, Tab 1
at 1. The certificate of service for the initial decision indicates that on July 21,
2020, the regional office served the initial decision on the appellant at his address
of record by the U.S. Mail. IAF, Tab 21; IAF, Tab 1 at 5. Although the
appellant’s representative claims that the appellant did not receive the mailed
copy of the initial decision served on him, PFR File, Tab 1 at 1, there is nothing
in the record from the appellant himself regarding when he received the initial
decision, and his representative lacks first-hand knowledge of when the appellant
received the initial decision. Moreover, the statement of the appellant’s
representative, as noted above, is not sworn, and therefore does not constitute
4
evidence of when the appellant received the initial decision. PFR File, Tab 1
at 1; Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995)
(observing that the statements of a party’s representative in a pleading do not
constitute evidence). Additionally, there is nothing in the record to indicate that
the copy of the initial decision served on the appellant was returned to the Board
as undelivered.
¶7 Furthermore, the certificate of service for the initial decision indicates that
the regional office served the initial decision on the appellant’s representative by
electronic mail, IAF, Tab 21, and the representative does not assert that he failed
to receive that copy of the initial decision. S ervice on a party’s designated
representative under these circumstances will be imputed to the party. See, e.g.,
Laboy v. U.S. Postal Service, 103 M.S.P.R. 570, ¶ 6 (2006) (observing that
electronic service on an appellant’s representative will be imputed to the party);
Lima v. Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006) (“[s]ervice on
a party’s designated representative will be imputed to the party”). Therefore, the
appellant is imputed to have received the decision through his representative.
¶8 An appellant whose petition for review is filed late, but does not file the
required motion concerning the timeliness of his petition for review has failed to
show the due diligence and ordinary prudence necessary for the Board to find
good cause for his delay in filing. Galleno v. Office of Personnel Management,
63 M.S.P.R. 440, 442 (1994) (finding that an appellant who filed her petition for
review 4 months late, and failed to file the required motion on timeliness, failed
to show good cause for waiver of the filing deadline), aff’d, 48 F.3d 1236 (Fed.
Cir. 1995) (Table); see Goldberg v. Department of Defense, 39 M.S.P.R. 515, 518
(1989) (stating that in the absence of good cause shown, the Board will not waive
its timeliness requirements even if the delay is minimal); Mejia v. Office of
Personnel Management, 38 M.S.P.R. 472, 473 (1988) (finding that, where the
appellant failed to respond to the Clerk’s notice concerning the timeliness of his
petition for review and his untimely filing did not include a motion for waiver of
5
the time limit or an affidavit or statement to establish good cause, the appellant
has not demonstrated good cause for the untimely filing). As explained above,
the appellant filed his petition for review 108 days late. ID at 12; PFR File,
Tab 1 at 1, 4; 5 C.F.R. § 1201.114(e). Because the appellant failed to file the
required motion, as was explained in the Acting Clerk’s December 18, 2020 letter
acknowledging his petition for review, we find that he has failed to establish good
cause for the waiver of the time limit. PFR File, Tab 2 at 1-2; Galleno,
63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia, 38 M.S.P.R. at 473.
¶9 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 removal appeal.
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
2
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
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
7
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
8
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
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3
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
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.
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.