Opinion

Deborah G Strand v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBORAH GUERINGER STRAND, DOCKET NUMBER

Appellant, AT-1221-20-0626-W-1

DEPARTMENT OF VETERANS DATE: August 16, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tricia Myers , Portland, Oregon, for the appellant.

Patrick J. Neil , Esquire, Tampa, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and did not participate in the adjudication of

this appeal.

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal as untimely filed.

Generally, we grant petitions such as this one only in the following

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2

By letter dated July 9, 2019, the Office of Special Counsel (OSC) informed

the appellant that it had closed its file regarding her allegations of reprisal for

whistleblowing activity and notified her of her right to seek corrective action

from the Board within 65 days of the date of the letter. Initial Appeal File (IAF),

Tab 28 at 52; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1) (stating that

an IRA appeal must be filed no later than 65 days after the date that OSC issues

its close-out letter, or, if the letter is received more than 5 days after its issuance,

within 60 days of the date of receipt). The appellant filed the present IRA appeal

on June 25, 2020, 353 days after the date of the close-out letter. IAF, Tab 1.

On review, the appellant does not challenge the administrative judge’s

finding that her IRA appeal was untimely filed by 287 days. Petition for Review

(PFR) File, Tab 1 at 4, Tab 5 at 4-11; IAF, Tab 32, Initial Decision (ID) at 3.

Rather, in her reply to the agency’s response, the appellant alleges for the first

time that equitable tolling should apply to her case. PFR File, Tab 5 at 4-11.

Because the appeal was dismissed on timeliness grounds, the administrative judge

properly did not reach the issue of jurisdiction. See Heimberger v. Department of

Commerce, 121 M.S.P.R. 10, ¶ 13 (2014).

Although the appellant’s arguments are difficult to discern, she primarily seems

to allege that the OSC attorney assigned to her whistleblower complaint and a

prior complaint mishandled her case by giving her conflicting information, not

allowing her sufficient time to respond to OSC’s requests to provide additional

information and evidence, and telling her in April 2019 that OSC could not help

her regarding her termination and hostile work environment claims. Id. at 4-8.

She argues that OSC’s close-out letters were “very vague and misleading” and

asserts that she was not aware that she had to file two separate appeals concerning

her whistleblower complaint and termination and discrimination claims. Id. at 9.

The appellant states that the OSC attorney sent the July 9, 2019 close-out letter

months after telling the her that OSC could not help her, and asserts, “I did not

initially notice, I am sure, because I was in shock and could not get [past the

attorney] telling me that my termination was justified.” Id. at 10. She argues that

she had been “derailed” and “misinformed” by the OSC attorney, who sent the

close-out letter “to cover herself, after already telling” the appellant that OSC

could not help her. Id. at 11. Finally, she asserts that she “did not know that

[she] was out of the timeframe when [she] submitted” her IRA appeal. Id. at 12.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the close of the record below despite the party’s due diligence.

See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board

generally will not consider an new argument raised for the first time on review

absent a showing that it is based on new and material evidence). The appellant

provides no explanation why she did not submit her arguments and evidence in

support of equitable tolling in response to the timeliness order. PFR File, Tab 1

at 4, Tab 5 at 4-11. The administrative judge afforded the appellant numerous

opportunities to gather relevant evidence and respond to the timeliness issue,

including two 30-day suspensions of case processing and granting the appellant’s

request for an additional 30 days to provide evidence and argument in a final

written submission. IAF, Tabs 22, 25, 26. Moreover, the administrative judge

clearly informed the appellant that he would make a determination on timeliness

based on the written record. IAF, Tab 26 at 1. Although the appellant argues on

review that she “did not receive the last order until 2.8.2021,” PFR File, Tab 1

at 4, it is unclear if she refers to the February 3, 2021 initial decision or a

previous order issued by the administrative judge. We note that the appellant

filed five pleadings in response to the order regarding final submissions, none of

which addressed the issue of timeliness. Tabs 27-31. To the extent that any of

the documents that the appellant submitted on review concerning her

communications with OSC and underlying allegations against her employing

agency were not already part of the record, she has provided no explanation why

they were not available before the close of the record. PFR File, Tab 1 at 5-34,

Tab 10 at 5-203, Tab 11 at 4-40.

In any event, the appellant’s arguments and evidence on review provide no

basis for disturbing the administrative judge’s findings that she failed to establish

that her appeal was timely filed or that her delay should be excused on the basis

of equitable tolling. ID at 3-4. The administrative judge correctly found that the

appellant had not identified the date on which she received OSC’s July 9, 2019

letter or alleged that she received it more than 5 days after it was issued, and the

appellant’s vague argument on review that she did “not initially notice” the letter

fails to establish that the filing deadline should have been extended. PFR File,

Tab 5 at 10; see 5 C.F.R. § 1209.5(a)(1). The appellant’s assertion that she did

not receive OSC’s preliminary determination letter dated June 14, 2019 until July

1, 2019, and that she was “completed unaware and blindsided” when the OSC

attorney sent her another email and attached letter on July 9, 2019 after telling

her that OSC “could not help” her, in fact serves as an acknowledgment that she

did receive OSC’s letters. PFR File, Tab 5 at 6.

As set forth in the initial decision, the statutory limit for filing an IRA

appeal cannot be waived for good cause shown. ID at 2; see Heimberger v.

Department of Commerce, 121 M.S.P.R. 10, ¶ 9 (2014). Even considering the

appellant’s arguments on review, we agree with the administrative judge that she

has not alleged any circumstances that would warrant the application of equitable

tolling to excuse her untimely filing. ID at 3-4; see Wood v. Department of the

Air Force, 54 M.S.P.R. 587, 593 (1992) (explaining that the filing period may be

suspended for equitable reasons, such as when the complainant has been induced

or tricked by her adversary’s misconduct into allowing the deadline to pass or

where she filed a defective pleading during the statutory period) (citing Irwin v.

Department of Veterans Affairs, 498 U.S. 89, 96 (1990)); 5 C.F.R. § 1209.5(b).

Although the appellant argues on review that the OSC attorney gave her

“conflicting messaging, making it impossible for [her] to respond in a timely

manner,” the appellant’s extensive statements only concern her submission of

additional information to OSC during the investigation of her complaint prior to

the issuance of the July 9, 2019 close-out letter. PFR File, Tab 5 at 4-7.

Equitable tolling does not extend to mere “excusable neglect.” Wood,

54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96). The appellant’s claim that

she remained confused that she had to file an IRA appeal before the Board within

a certain time frame does not demonstrate that she had been pursuing her rights

diligently and that some extraordinary circumstances prevented her from filing an

initial appeal until almost 1 year after OSC issued the letter. PFF File, Tab 5 at 9,

12; see Heimberger, 121 M.S.P.R. 10, ¶ 10.

Accordingly, we deny the petition for review and affirm the initial

decision.

NOTICE OF APPEAL RIGHTS 3

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. 4 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