Opinion

Robert Troise v. Department of the Treasury

Court: Merit Systems Protection Board
Filed: Sep 6, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

directing the Board to consider whether an appellant diligently filed with the Board newly discovered evidence related to his claim of fraud, which he alleged the agency wrongfully withheld

How later courts described this case

directing the Board to consider whether an appellant diligently filed with the Board newly discovered evidence related to his claim of fraud, which he alleged the agency wrongfully withheld

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT J. TROISE, DOCKET NUMBER

Appellant, CH-3443-20-0230-I-1

DEPARTMENT OF THE TREASURY, DATE: September 6, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robert J. Troise , Wichita Falls, Texas, pro se.

Aaron J. Bennett , Esquire, and Bridgette M. Gibson , Dallas, Texas, 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 the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

In February 2020, the appellant filed his initial appeal challenging his

nonselection for a position due to alleged suitability concerns. Initial Appeal File

(IAF), Tab 1. On March 20, 2020, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction with a finality date of

April 24, 2020. IAF, Tab 13, Initial Decision (ID) at 1, 6. The appellant filed the

instant petition for review on September 23, 2020. Petition for Review (PFR)

File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board’s regulations provide that a petition for review must be filed

within 35 days of the issuance of the initial decision or, if the appellant shows

that the initial decision was received more than 5 days after the date of issuance,

within 30 days after the date he received the initial decision. 5 C.F.R.

§ 1201.114(e). The Board will waive its filing deadline only upon a showing of

good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good

cause for an untimely filing, the appellant must show that he exercised due

diligence or ordinary prudence under the particular circumstances of the case.

Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). 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 that

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).

The appellant’s petition for review was due on or before April 24, 2020.

ID at 6; see 5 C.F.R. § 1201.114(e). It was filed approximately 5 months late, on

September 23, 2020. PFR File, Tab 1. Applying the factors above, we find that

the appellant has failed to establish good cause for his approximately 5-month

delay in filing his petition for review. Although he is proceeding pro se, a

5-month delay is significant. See, e.g., Mashack v. U.S. Postal Service,

96 M.S.P.R. 174, ¶ 8 (2004) (finding a 3½-month delay significant). The

appellant states that he was unable to access a library computer to file his appeal

due to the COVID-19 pandemic. PFR File, Tab 3 at 1. However, he does not

identify whether the library was closed during the entire period between March 20

and September 23, 2020, and he does not explain why he did not attempt to

submit pleadings by mail or otherwise contact the Board during this 5 -month

period. Id. Additionally, the appellant filed pleadings in another matter on

August 11, 2020, and he does not explain why he was unable to file the instant

petition for review on or about August 11, 2020. Troise v. Department of the

Treasury, MSPB Docket No. CH-3443-20-0230-A-1, Attorney Fees File, Tab 1.

The appellant’s arguments about the merits of the agency’s action are irrelevant

to the issue of the timeliness of his petition for review. PFR File, Tab 1 at 1,

Tab 3 at 1; see, e.g., Abney v. Office of Personnel Management, 89 M.S.P.R. 305,

¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002). In addition, the appellant’s

general assertion that he did not know he could ask for an extension of time does

not excuse his failure to request an extension in advance of the filing date. See

Mashack, 96 M.S.P.R. 174, ¶ 9; 5 C.F.R. § 1201.114(f). The appellant therefore

failed to establish that he exercised ordinary prudence under the circumstances.

To the extent the appellant is contending that the documents he submits on

review constitute new and material evidence that would justify his untimely

filing, he fails to provide a basis for waiving the filing deadline. PFR File,

Tabs 1, 3. One of the documents the appellant submits on review was previously

submitted to the administrative judge and is not new. IAF, Tab 5 at 2; PFR File,

Tab 1 at 2; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).

The appellant submits two documents that are dated after the issuance of the

initial decision, including a June 18, 2020 memo from the Department of the

Army regarding its security investigation of the appellant and a September 29,

2020 letter from the Federal Emergency Management Agency (FEMA),

confirming authorization from FEMA’s security department to move forward with

the appellant’s onboarding. PFR File, Tab 1 at 3, Tab 3 at 3. The appellant did

not act diligently in bringing the June 18 memo to the Board’s attention because

he delayed filing it by more than 3 months. See Jenkins-Nye v. General Services

Administration, 34 M.S.P.R. 382, 384-85 (1987) (finding that a more than

2-month delay between discovery of alleged new evidence and filing it with the

Board did not constitute due diligence). Even if the appellant had diligently

brought the June 18 memo to the Board’s attention, the appellant’s point

regarding the document is duplicative of arguments made before the

administrative judge, i.e., that he had been given a clear background check at the

time of the nonselection, and is not relevant to the issues of timeliness or

jurisdiction. ID at 5; IAF, Tab 1 at 5, Tab 5 at 1; PFR File, Tab 1 at 1; see, e.g.,

Abney, 89 M.S.P.R. 305, ¶ 4 (holding arguments related to the merits are not

relevant to timeliness). Similarly, the September 29 email, which is dated after

the appellant filed his petition for review and concerns another agency’s job offer

to the appellant, relates to the merits of the underlying action and is not relevant

to jurisdiction or timeliness. PFR File, Tab 3 at 3; see, e.g., Abney, 89 M.S.P.R.

305, ¶ 4. Thus, the September 29 email is not new and material evidence. There

is no evidence or argument that the agency possessed these documents during the

pendency of the appeal and wrongfully withheld them from the appellant, and

thus we find no basis to waive the time limit. Cf. Armstrong v. Department of the

Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (directing the Board to consider

whether an appellant diligently filed with the Board newly discovered evidence

related to his claim of fraud, which he alleged the agency wrongfully withheld).

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 its jurisdiction over this 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

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. 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