Opinion

Harold A Ross v. Department of the Army

Court: Merit Systems Protection Board
Filed: Aug 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HAROLD A. ROSS, DOCKET NUMBER

Appellant, NY-0752-18-0175-I-1

DEPARTMENT OF THE ARMY, DATE: August 9, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Harold A. Ross , West Orange, New Jersey, pro se.

Eric Teegarden , Fort McCoy, Wisconsin, 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

sustained his removal under 5 U.S.C. chapter 75. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 was a GS-11 Budget Analyst for the agency. Initial Appeal

File (IAF), Tab 23 at 6. Effective July 7, 2018, the agency removed the appellant

for conduct and attendance reasons. Id. at 6-13, 19-22. He filed a Board appeal,

and on April 22, 2019, the administrative judge issued an initial decision

affirming the removal. IAF, Tab 38, Initial Decision (ID). The initial decision

informed the appellant that the deadline for filing a petition for review was

May 27, 2019. ID at 8.

On May 30, 2019, the appellant filed a petition for review by electronic

submission. Petition for Review (PFR) File, Tab 1. The Clerk of the Board

issued an order notifying the appellant of the applicable timeliness standards and

directing him to file evidence and argument showing that the petition for review

was untimely filed or that there was good cause for any delay. PFR File, Tab 2.

The appellant filed a motion to waive the filing deadline. PFR File, Tab 5. The

agency has filed a response to the petition for review, opposing it on both

timeliness and substantive grounds, and the appellant has filed a reply to the

agency’s response. PFR File, Tabs 6-7.

ANALYSIS

A petition for review must be filed within 35 days after the initial decision

is issued, or, if the appellant shows that he received the initial decision more

than 5 days after it was issued, within 30 days after the date of receipt.

Williams v. Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008);

5 C.F.R. § 1201.114(e). The Board will waive the filing deadline for a petition

for review only upon a showing of good cause for the filing delay. Lawson v.

Department of Homeland Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R.

§§ 1201.12, 1201.114(g). To establish good cause for an untimely filing, a party

must show that he exercised due diligence or ordinary prudence under the

particular circumstances of his case. 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. 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).

In this case, it appears to be undisputed that the petition for review was

untimely filed. The appellant is a registered e-filer, and the initial decision was

served on him electronically on April 22, 2019—the date it was issued. IAF,

Tab 1 at 2, Tab 39; PFR File, Tab 5 at 4; see 5 C.F.R. § 1201.4(i)-(n). The initial

decision set forth the deadline for filing a petition for review as May 27, 2019.

See 5 C.F.R. § 1201.114(e) (setting forth a 35-day deadline for filing a petition

for review). Because May 27, 2019, was a Federal holiday, the appellant’s

deadline to file a petition for review was May 28, 2019. See 5 C.F.R. § 1201.23

(“If the date that ordinarily would be the last day for filing falls on a Saturday,

Sunday, or Federal holiday, the filing period will include the first workday after

that date.”). As indicated by the time stamp, the appellant filed his petition for

review on May 30, 2019. PFR File, Tab 1; see 5 C.F.R. § 1201.4(l) (“The date of

filing by e-filing is the date of electronic submission.”). We find that the petition

was 2 days untimely.

The record shows that the appellant attempted to file his petition for review

electronically on May 27, 2019 at 11:46 p.m. PFR File, Tab 5 at 10. However,

he ran into technical difficulties and was unable to complete the submission. Id.

at 4, 10. The appellant sought assistance from the Board’s technical support

team, which replied the following morning at 10:04 a.m., informing him that he

was unable to upload his petition because it contained password-protected files.

Id. at 10. The technical support team gave the appellant instructions on how to

complete his submission, and the appellant completed it on May 30, 2019.

PFR File, Tab 1, Tab 5 at 10.

On review, the appellant attributes the untimeliness of his petition to these

technical difficulties and to his displacement from his home, which resulted from

a “toxic exposure event” in his residence that left him without a fixed place to

reside “[d]uring the time before and after” he received the initial decision.

PFR File, Tab 1 at 3. Regarding the technical difficulties, the Board has found

that a party has not shown the due diligence necessary for a finding of good cause

when he waits until the last minute to file his petition and encounters unexpected

problems. Defreitas v. Defense Mapping Agency, 45 M.S.P.R. 55, 57-58 (1990).

Moreover, the appellant has not explained why, after receiving assistance

from technical support, he waited 2 additional days to file his petition. See Blair

v. Office of Personnel Management, 89 M.S.P.R. 113, ¶ 12 (2001) (finding that

the appellant failed to show good cause for his untimely filing because his

explanation did not cover the entire period of the delay), aff'd, 31 F. App’x 646

(Fed. Cir. 2002). Nor has he explained why he did not file his petition

by alternate means even though he was informed when he elected to e-file that

he could still make non-electronic submissions. IAF, Tab 1 at 2; see

C.F.R. § 1201.14(f) (2019).

Regarding the appellant’s living situation, the record shows that the

appellant originally vacated his home on February 27, 2019, and continued

without a stable living situation until at least May 1, 2019. IAF, Tab 33 at 4; PFR

File, Tab 5 at 4, 9. However, the record is silent on whether the appellant’s

displacement continued throughout the petition for review filing period and if so,

what his current living situation is. See Blair, 89 M.S.P.R. 113, ¶ 12. Moreover,

the appellant has not explained how these circumstances prevented him from

making a timely filing. See Vitale v. Department of Justice, 33 M.S.P.R. 97, 99 ,

aff’d, 833 F.2d 1023 (Fed. Cir. 1987). Finally, the appellant states that he failed

to request an extension because he presumed that this was not a possibility. PFR

File, Tab 5 at 5. However, it is well settled that an appellant’s inexperience with

legal matters and unfamiliarity with Board procedures does not warrant waiver of

the Board’s deadlines. Scott v. Social Security Administration, 110 M.S.P.R. 92,

¶ 9 (2008).

Although the filing delay in this case was brief and the appellant was

proceeding pro se, these factors, without more, do not demonstrate good cause for

an untimely filing. See Simon v. Department of Veterans Affairs, 65 M.S.P.R.

176, 181 (1994). In the interests of judicial efficiency and fairness, the

Board will not waive its timeliness requirements absent good cause shown.

Bond v. Department of the Army, 51 M.S.P.R. 322, 324 (1991). Accordingly, we

dismiss the petition for review as untimely filed. 5 C.F.R. § 1201.114(g). 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 removal.

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.

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.

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. 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:

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.