Opinion

Denise Andrews v. Department of Defense

Court: Merit Systems Protection Board
Filed: Aug 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENISE ANDREWS, DOCKET NUMBER

Appellant, DC-0752-20-0880-I-1

DEPARTMENT OF DEFENSE, DATE: August 7, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Denise Andrews , Woodbridge, Virginia, pro se.

Brittany Dozier , Fort Gregg-Adams, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

dismissed her involuntary resignation appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant resigned effective August 28, 2020, during her probationary

period from her position as a Sales Store Checker due to concerns related to

COVID-19. Initial Appeal File (IAF), Tab 5. She subsequently filed a Board

appeal alleging that she believed the agency could have offered her a telework

position or office work. IAF, Tab 1 at 3. The appellant elected to be an e-filer.

Id. at 2. After informing the appellant of the applicable legal standard for

establishing jurisdiction over a claimed involuntary resignation, and affording her

the opportunity to file evidence and/or argument demonstrating that the Board

had jurisdiction over her appeal, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction, finding that the appellant

failed to make a nonfrivolous allegation that her claim of involuntary resignation

was within the Board’s jurisdiction. IAF, Tab 3, Tab 7, Initial Decision (ID) at 5.

The initial decision specifically stated that the deadline to file a petition for

review was November 19, 2020. ID at 6.

The appellant filed her petition for review on April 14, 2021, stating that

she did not receive “a notice,” explaining that she had encountered “stress and

financial hardship,” that she had learned new facts including that it was now

mandatory for all patrons to wear masks and that the former store manager was no

longer employed there, and that she was subjected to race and age discrimination.

Petition for Review (PFR) File, Tab 1 at 3-4. The appellant also claimed that she

was “left in the dark” regarding her case, that the agency assigned her a

representative that never contacted her and she does not know what was presented

or considered in the decision, and that she only learned that the case was closed

after she emailed the Board regarding the status of her case. Id. at 3-5. The

agency did not file a response to the petition for review.

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). 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 she 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 her excuse and her 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. 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 deadline for filing a petition for review in this appeal was

November 19, 2020. ID at 6. The appellant filed her petition for review nearly

5 months later, on April 14, 2021. PFR File, Tab 1. Such a filing delay is

significant. Kroeger v. U.S. Postal Service, 112 M.S.P.R. 488, ¶ 7 (2009)

(finding that a 5-month delay in filing a petition for review is significant);

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

of over 5 months significant); Waldo v. Department of the Air Force, 91 M.S.P.R.

326, ¶ 5 (2002) (same). We recognize that the appellant is pro se, but the

assertions in her petition for review do not offer a persuasive excuse, show that

she acted with diligence, or set forth circumstances beyond the appellant’s control

that affected her ability to comply with the filing limit. 2 PFR File, Tab 1. While

the appellant claims that she was not provided “a notice” regarding her case, she

does not provide any evidence demonstrating that she did not receive the initial

decision. 3 PFR File, Tab 1 at 3-5. Nevertheless, the appellant registered as an

e-filer and the initial decision was served electronically on the appellant. IAF,

Tab 1 at 2, Tab 8. Our e-filer regulations provide that, as a registered e-filer, the

appellant agreed to accept documents through electronic service and, further, that

she is required to monitor her case activity at the Repository at e-Appeal Online

to ensure that she received all case related documents. Rivera, 111 M.S.P.R. 581,

¶ 5 (2009); 5 C.F.R. § 1201.14(e)(1), (j)(3) (2020). Moreover, our regulations

provide that pleadings and Board documents served electronically on registered

e-filers are deemed received on the date of electronic submissions. Rivera,

111 M.S.P.R. 581, ¶ 5; 5 C.F.R. § 1201.14(m)(2) (2020). When a statute or

regulations “deems” something to have been done, the event is considered to have

occurred whether or not it actually did. Rivera, 111 M.S.P.R. 581, ¶ 5. Thus, we

deem the appellant to have received the initial decision on October 15, 2020, and

therefore, her petition for review was filed approximately 5 months late. IAF,

Tab 8; PFR File, Tab 1.

Furthermore, the appellant has presented no circumstances beyond her

control that would have prevented her from filing the petition for review in a

The appellant makes several arguments on review which address the merits of her

case, such as claiming that she was subjected to discrimination on the basis of race and

age. PFR File, Tab 1 at 4. These arguments are not relevant to the issue of timeliness,

and thus, we need not address them. Abney v. Office of Personnel Management,

89 M.S.P.R. 305, ¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).

The appellant seems to believe that the agency assigned a representative to her to

represent her throughout the appeal process. PFR File, Tab 1 at 3-5. This is incorrect

—the agency designated a representative to represent the agency, not the appellant.

IAF, Tab 4. Thus to the extent that the appellant argues that she was the victim of her

representative’s error, because she did not have a representative, we need not address

this claim.

timely fashion. On the contrary, her explanation demonstrates that she failed to

act with ordinary prudence or due diligence. The appellant was responsible for

monitoring the progress of her appeal and monitoring case activity on e-Appeal

Online to ensure that she received all case related documents. 5 C.F.R.

§ 1201.14(j)(3) (2020); see Jones v. Office of Personnel Management,

93 M.S.P.R. 50, ¶ 5 (2002) (stating that the appellant had an obligation to

diligently monitor the progress of her appeal at all times and failure to do so

indicated a lack of due diligence). Not only did she fail to properly monitor her

case, but she also waited for several months before following up with the Board

to determine the status of her case. 4 PFR File, Tab 1 at 3-5. Therefore, we do not

find that the appellant established good cause for her filing delay.

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 involuntary resignation appeal.

NOTICE OF APPEAL RIGHTS 5

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

Although the appellant claims that she emailed the Board for a case update, she does

not provide a copy of the email. PFR File, Tab 1 at 3-4. We therefore assume that she

checked on the status of her case around the time that she filed her petition for review.

Even if she emailed the Board earlier, we still do not find that she acted with due

diligence, as she either waited several months to check on the status of her case, or she

waited for several months to file a petition for review despite knowing her case was

closed. Either set of facts does not demonstrate that the appellant acted with the level

of ordinary prudence necessary to establish good cause.

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. 6 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

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,

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