Opinion

Nakisha Barthell v. Department of Veterans Affairs

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Status: Unpublished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

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NAKISHA BARTHELL, DOCKET NUMBER

Appellant, SF-315H-21-0450-I-1

DEPARTMENT OF VETERANS DATE: September 6, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nakisha Barthell , Elk Grove, California, pro se.

Coleen L. Welch , Martinez, California, 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

dismissed her appeal challenging her termination while serving in a trial period

for lack of jurisdiction. For the reasons set forth below, the appellant’s petition

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.

§ 1201.114(e), (g).

BACKGROUND

The agency appointed the appellant to a GS-6 Advanced Medical Support

Assistant position on August 16, 2020, and terminated her from that position

effective June 18, 2021. Initial Appeal File (IAF), Tab 1 at 1, 17-19, Tab 6 at 12,

241. The appellant timely filed a Board appeal challenging her termination on

July 16, 2022, and acknowledged on her appeal form that she was serving in a

probationary or trial period at the time of her termination and identified the

challenged action as a probationary or trial period termination appeal. IAF, Tab 1

at 1, 3. The administrative judge issued a jurisdictional order that informed the

appellant of her burden of proof to establish Board jurisdiction over her appeal

and instructed her to file evidence and argument establishing why the appeal

should not be dismissed for lack of jurisdiction based on her status as a

probationer. IAF, Tab 3.

The agency filed its response to the order and moved to dismiss the appeal

for lack of jurisdiction, arguing that the appellant was terminated during her

probationary period and was not otherwise an “employee” with Board appeal

rights under 5 U.S.C. § 7511(a). IAF, Tab 6 at 4-8. The appellant did not

respond to the jurisdiction order. The administrative judge subsequently issued

an order instructing the appellant to file a response to the agency’s motion to

dismiss and to include the information called for in the jurisdiction order in her

response. IAF, Tab 7. The appellant again failed to respond to the administrative

judge’s order.

Without holding the appellant’s requested hearing, IAF, Tab 1 at 2,

the administrative judge issued an initial decision dismissing the appeal for lack

of jurisdiction, IAF, Tab 8, Initial Decision (ID) at 1, 6. The administrative judge

first noted that although the agency provided the appellant with notice of appeal

rights information for probationary employees in the competitive service,

the appellant’s appointment was in the excepted service. ID at 4.

The administrative judge concluded that as an excepted service employee without

veterans’ preference, the appellant had to establish that she was an “employee”

with Board appeal rights under 5 U.S.C. § 7511(a)(1)(C) and she did not make

such a showing in this case, noting that she was terminated while serving in a

1-year trial period and she had not provided any evidence that she had any prior

Federal service that could be credited toward completion of her trial period.

ID at 4-5. The administrative judge further concluded that the appellant failed to

establish that she had a regulatory right to appeal her termination to the Board

under 5 C.F.R. § 315.806(c). Consequently, he dismissed the appeal for lack of

jurisdiction. ID at 5-6. The initial decision was issued on August 26, 2021,

and noted that the decision would become final on September 30, 2021, unless a

petition for review was filed by that date. ID at 1, 6.

On March 29, 2022, the appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1. The agency submitted a response in opposition to the

petition for review, and the appellant did not submit a reply. PFR File, Tab 4.

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 party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party received the initial decision. Palermo v. Department of

the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will

waive the time limit for filing a petition for review only upon a showing of good

cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4. The party who

submits an untimely petition for review has the burden of establishing good cause

for the untimely filing by showing that she exercised due diligence or ordinary

prudence under the particular circumstances of the case. Id. To determine

whether a party has shown good cause, the Board will consider the length of the

delay, the reasonableness of her excuse and the party’s 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. Id.

As previously noted, the initial decision was issued on August 26, 2021,

and so the petition for review was due by September 30, 2021. ID at 1, 6.

The appellant filed her petition for review through e-Appeal on March 29, 2022.

PFR File, Tab 1. Because the pleading was submitted after the filing deadline,

e-Appeal automatically generated questions concerning timeliness, including a

question instructing the appellant to describe the facts and circumstances related

to the untimely filing, and to provide argument as to why the Board should find

good cause for her untimeliness. Id. at 3-5. In response, the appellant stated that

she “did not have access electronically” and that she never received the

administrative judge’s orders. Id. at 3, 5. She also stated that she reached out to

agency counsel regarding her “lack of access.” Id. at 4.

The Acting Clerk of the Board issued a letter to the appellant

acknowledging her petition for review and stating that it appeared to be untimely

filed because it was not postmarked or received on or before September 30, 2021.

PFR File, Tab 3 at 1. The Acting Clerk afforded the appellant an opportunity to

file a motion to accept the filing as timely and/or to waive the time limit for good

cause, and stated that such a motion must be accompanied by a statement signed

under penalty of perjury or an affidavit, postmarked, if mailed, or sent by

facsimile on or before April 13, 2022. Id. at 1-2 (citing 5 C.F.R. § 1201.114(g)).

The Acting Clerk also enclosed a copy of a form “Motion to Accept Filing as

Timely or to Waive Time Limit” with the acknowledgment letter. Id. at 2, 7-8.

The appellant did not submit a separate sworn statement, affidavit, or offer

further explanation for her untimely petition for review.

Regarding the appellant’s assertion that she did not have electronic access

to the pleadings in this appeal, the appellant filed her initial appeal electronically

and elected to register as an e-filer and did not revoke her designation as

an e-filer at any time during the processing of her appeal. IAF, Tab 1 at 2.

E-filers consent to accept electronic service of pleadings filed by other registered

e-filers and documents issued by the Board. 5 C.F.R. § 1201.14(e)(1) (2021).

When Board documents are issued, an email is sent to an e-filer at their email

address of record, notifying them of the issuance and providing them with a link

to e-Appeal where the documents can be viewed and downloaded. 5 C.F.R.

§ 1201.14(j)(1) (2021). E-filers are responsible for monitoring case activity at

e-Appeal to ensure that they have received all case-related documents. 5 C.F.R.

§ 1201.14(j)(3) (2021). As an e-filer, the appellant is deemed to have received

the jurisdiction order, the order instructing her to respond to the agency’s motion

to dismiss, and the initial decision when they were electronically issued on

July 19, 2021, August 11, 2021, and August 26, 2021, respectively. 5 C.F.R.

§ 1201.14(m)(2) (2021); Palermo, 120 M.S.P.R. 694, ¶ 3; IAF, Tabs 3, 7-8.

Moreover, the appellant has not provided an explanation for her late filing

despite being afforded the opportunity to do so. The appellant’s failure to

address the timeliness of her petition for review and the lack of evidence of

circumstances beyond her control or of unavoidable casualty or misfortune that

prevented her from filing a timely petition for review weigh against finding good

cause. See Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453,

¶¶ 9-10 (2009) (finding no good cause for the pro se appellant’s 10-day delay in

filing a petition for review when he failed to respond to the Clerk’s notice

regarding timeliness); Beckley v. U.S. Postal Service, 43 M.S.P.R. 397, 399

(1990) (noting that in the interest of judicial efficiency and fairness, regardless of

how minimal the delay, the Board will not waive its timeliness requirements in

the absence of good cause shown). Although the appellant is proceeding pro se,

her nearly 6-month filing delay is not minimal. See, e.g., Dean v. U.S. Postal

Service, 100 M.S.P.R. 556, ¶ 5 (2005) (finding a 6-month delay was not

minimal); Floyd v. Office of Personnel Management, 95 M.S.P.R. 260, ¶ 6 (2003)

(finding a 1-month delay was not minimal).

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 dismissal for lack of jurisdiction of the appellant’s appeal

challenging her termination while serving in a trial period. 2

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

As the administrative judge correctly noted, the appellant’s appointment was in the

excepted service. ID at 4-5. As such, the appellant was not entitled to the procedural

protections of 5 C.F.R. § 315.805 and so the administrative judge did not need to

consider whether the appellant had a regulatory right to appeal her termination to the

Board under 5 C.F.R. § 315.806(c). See Mancha v. Department of Homeland Security ,

112 M.S.P.R. 216, ¶ 10 (2009); Barrand v. Department of Veterans Affairs,

112 M.S.P.R. 210, ¶ 13 (2009). Nevertheless, any error in this misstatement was

harmless and did not affect the outcome of the decision. See Panter v. Department of

the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was

not prejudicial to a party’s substantive rights provided no basis for reversal of an initial

decision).

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.

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. 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).

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.

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