Opinion

Andrew Bell v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Aug 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANDREW BELL, DOCKET NUMBER

Appellant, AT-0353-14-0525-C-3

DEPARTMENT OF DATE: August 5, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Bell , Atlanta, Georgia, pro se.

Daniel P. Kohlmeyer , Esquire, Jamaica, New York, 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 compliance initial

decision, denying his third petition for enforcement. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The administrative judge issued a compliance initial decision on

September 4, 2019, finding the agency in compliance with the parties’ August 21,

2014 settlement agreement. Compliance File (CF), Tab 6, Compliance Initial

Decision (CID). The compliance initial decision advised the appellant that the

deadline to file a petition for review was October 9, 2019, and provided

information as to how to file a petition for review. CID at 5-9. The compliance

initial decision was sent to the appellant’s address of record, via U.S. Mail, on

September 4, 2019. CF, Tab 7.

On November 19, 2019, the appellant hand-delivered a petition for review

to the regional office, arguing, among other things, that the agency had not

corrected his service computation date, and asserting that the agency engaged in

bad acts, both before and after the signing of the settlement agreement, including

interfering with his claim for Office of Workers’ Compensation Programs

benefits. Compliance Petition for Review (CPFR) File, Tab 1 at 1-3. That filing

was forwarded to Board headquarters. CPFR File, Tab 2. The Acting Clerk of

the Board issued a letter to the appellant asking him to clarify the purpose of his

filing, id., and the appellant stated that his filing should be considered a petition

for review of the compliance initial decision in MSPB Docket No. AT-0353-14-

0525-C-3, as well as the initial decision issued in the joined appeals of MSPB

Docket Nos. AT-0343-14-0525-B-1, AT-0353-14-0524-B-1, and AT-3443-14-

0184-B-2. 2 CPFR File, Tab 4 at 4.

The Acting Clerk of the Board then issued the appellant an

acknowledgment letter, advising him that his petition for review of the

compliance initial decision was filed after the October 9, 2019 deadline, and that

he should file a motion with the Board to accept the filing as timely, or to waive

the time limit for good cause. CPFR File, Tab 5 at 2. The appellant filed a

The Board has issued a separate decision addressing the appellant’s petition for review

in MSPB Docket Nos. AT-0343-14-0525-B-1, AT-0353-14-0524-B-1, and AT -3443-14-

0184-B-2.

motion to accept his petition for review as timely filed, or to waive the time limit

for good cause, explaining that he was out of town and unaware of the compliance

initial decision until “on or after September 25, 2019.” CPFR File, Tab 7 at 5.

He also stated that he had reaggravated a wrist injury and that he filed the petition

for review once his wrist healed and he could retrieve documents from his post

office box. 3 Id. The agency responded in opposition to the appellant’s petition

for review. CPFR File, Tab 8.

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 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). It is the appellant’s burden of proof, by a preponderance of the

evidence, to establish the timeliness of his petition for review. 5 C.F.R.

§ 1201.56(b)(2)(B); McPherson v. Department of the Treasury, 104 M.S.P.R.

547, ¶ 4 (2007) (stating that the appellant bears the burden of proof with regards

to timeliness, which he must establish by preponderant evidence).

A petition for review of the compliance initial decision was due no later

than October 9, 2019. CID at 5. The appellant did not file his petition for review

until November 19, 2019, i.e., approximately 6 weeks later. CPFR File, Tab 1.

The certificate of service confirms that the compliance initial decision was sent to

the appellant’s post office box, via U.S. Mail. CF, Tab 7. The appellant has not

claimed that the address was incorrect, or that he did not receive the compliance

initial decision. In fact, the appellant confirms that he received the initial

The appellant filed a second motion regarding the existence of good cause for his

untimely filing on January 15, 2020, which repeated some of the arguments raised in his

earlier filing. CPFR File, Tab 9 at 4-5. Although filed after the deadline set in the

Acting Clerk’s acknowledgment order, we have considered the appellant’s pleading.

decision as of September 25, 2019. CPFR File, Tab 7 at 5. Therefore, the

appellant has not established that his appeal was timely filed. 4

As the appellant filed his petition for review late, the issue is whether he

established good cause to waive the time limit. The Board will waive a petition

for review 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 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 his inability to timely file his petition. Rivera, 111 M.S.P.R. 581,

¶ 4 (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)).

The appellant has not established good cause for his delay in filing.

Although we recognize that the appellant is acting in a pro se capacity, a near

6-week filing delay is significant. See, e.g., Dow v. Department of Homeland

Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding that a filing delay of more than

1 month was significant, despite an appellant’s pro se status); Crook v. U.S.

The Board’s decisions and regulations address various circumstances in which an

individual failed to promptly retrieve a decision from a post office box or other location

and then filed with the Board in an untimely fashion. See, e.g., Little v. U.S. Postal

Service, 124 M.S.P.R. 183, ¶¶ 8-9 (2017); Marcantel v. Department of Energy,

121 M.S.P.R. 330, ¶¶ 7-9 (2014); 5 C.F.R. § 1201.22(b)(3) & Examples 1. Regardless,

even if we were to assume that the appellant did not receive the initial decision until

September 25, 2019, per 5 C.F.R. § 1201.114(e), the appellant had until October 30,

2019, i.e., 30 days from the date of receipt, to file a petition for review. Thus, the

appellant’s petition for review would still be 20 days late.

Postal Service, 108 M.S.P.R. 553, ¶ 6 (finding that a 1-month filing delay was

significant), aff’d, 301 F. App’x 982 (Fed. Cir. 2008). The appellant has not

offered a persuasive excuse, showed that he acted with diligence, or set forth

circumstances beyond his control that affected his ability to comply with the

filing deadline. In fact, the appellant admits he knew of the compliance initial

decision as of September 25, 2019, i.e., 2 weeks prior to the filing deadline, but

made no effort to file a timely petition for review, or request an extension of the

filing deadline. CPFR File, Tab 7 at 5. Furthermore, although the appellant

attached a medical note confirming that he injured his wrist, the note does not

establish that the appellant was hospitalized or was otherwise medically

incapacitated, such that he was unable to file a timely petition for review or

request an extension. 5 Id. at 5, 19. Instead, we find that the appellant’s actions

demonstrate a lack of ordinary prudence or due diligence. Therefore, we find no

basis to waive the time limit for the appellant’s petition for review.

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 compliance initial decision remains the final

decision of the Board regarding the appellant’s petition for enforcement. 6

NOTICE OF APPEAL RIGHTS 7

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

The Acting Clerk of the Board notified the appellant of the elements necessary to

establish that an untimely filing was the result of an illness or injury. PFR File, Tab 5

at 7, n.1.

The Office of the Clerk of the Board has advised that a few of the pleadings submitted

by the parties into the administrative record of the appellant’s initial appeals during

2013 and 2014 could not be located. This administrative record issue has no impact on

the disposition of this matter, and thus, it has not prejudiced the appellant.

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.

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:

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. 8 The court of appeals must receive your petition for

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

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