Opinion

Trisha S Huntley v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Oct 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 31.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRISHA SHAYNE HUNTLEY, DOCKET NUMBER

Appellant, NY-844E-21-0105-I-1

OFFICE OF PERSONNEL DATE: October 25, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Trisha Shayne Huntley , Fulton, New York, pro se.

Linnette Scott , Washington, D.C., 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 appeal of the Office of Personnel Management (OPM)

reconsideration decision as untimely filed with no good cause shown. Generally,

we grant petitions such as this one only in the following circumstances: the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

On July 17, 2020, OPM issued a reconsideration decision affirming its

initial decision that the appellant failed to establish eligibility for disability

retirement benefits under the Federal Employees’ Retirement System. Initial

Appeal File (IAF), Tab 5 at 15-19. The appellant signed for and received OPM’s

reconsideration decision sent via certified mail on July 23, 2020. Id. at 20. The

decision specifically informed the appellant that she could file an appeal with the

Board within 30 calendar days after her receipt of the decision. Id. at 19.

The appellant filed a Board appeal challenging OPM’s reconsideration

decision on May 26, 2021. IAF, Tab 1. The administrative judge informed the

appellant that her appeal appeared untimely filed and informed her of how to

establish that she timely filed a Board appeal or show good cause for the delay in

filing. IAF, Tab 3 at 1-4. The appellant did not respond to this order.

The administrative judge subsequently issued an initial decision dismissing

the appeal as untimely filed without good cause shown. IAF, Tab 6, Initial

Decision (ID) at 1-2. Specifically, the administrative judge found that the appeal

was filed roughly 9 months after the filing deadline, and the appellant failed to

explain why her appeal was filed late. ID at 4. The administrative judge

additionally considered the evidence suggesting that the appellant’s attorney may

have neglected to follow up on the matter, but she ultimately found that the

appellant was responsible for her attorney’s failures. Id.

The appellant has filed a petition for review, and the agency has responded.

Petition for Review (PFR) File, Tab 1, Tab 3. The appellant argues that her

attorney was negligent in handling her case and asserts that he was subsequently

suspended from the practice of law for, among other things, neglecting client

matters. PFR File, Tab 1 at 3-4, 8; IAF, Tab 5 at 8, 10-14. She asserts that her

then-attorney did not inform her that an appeal was never filed until after the

deadline to file had passed and claims that the matter was out of her control. PFR

File, Tab 1 at 3-4. She attaches various documents on review purporting to show

that her prior attorney was suspended from practicing law for 1 year beginning

December 23, 2020, and that, in January 2021, she sought new representation to

ascertain the status of her case with OPM after discovering that no appeal was

filed. Id. at 6-9.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge found that the appellant’s Board appeal was

untimely filed by roughly 9 months. ID at 4. The parties do not challenge this

finding on review, and we see no reason to disturb it. See 5 C.F.R. § 1201.22(b)

(1) (setting forth the deadline to file an appeal of an agency’s decision).

The Board may waive its regulatory filing time limit for good cause shown.

Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014); 5 C.F.R.

§ 1201.22(c). To establish good cause for the untimely filing of an appeal, a

party must show that she exercised due diligence or ordinary prudence under the

particular circumstances of the case. Marcantel, 121 M.S.P.R. 330, ¶ 10. 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

appeal. Id. The Board generally holds that, when, as here, an appellant fails to

follow OPM’s instructions, it does not constitute good cause for any ensuing

delay. Maggard v. Office of Personnel Management, 102 M.S.P.R. 75,

¶ 9 (2006).

The appellant argues that her attorney’s negligence led to her untimely

filing and thus the matter was out of her control. 2 PFR File, Tab 1 at 4-5. The

Board has repeatedly held that an appellant is responsible for the action or

inaction of her chosen representative and that delays caused by a representative

will not constitute good cause to excuse a filing delay. Strong v. Department of

the Navy, 86 M.S.P.R. 243, ¶ 7 (2000). The Board has recognized a limited

exception to this rule for cases when an appellant proves that she actively

monitored the progress of her appeal but that her diligent efforts to prosecute her

case were thwarted by the deception and negligence of her representative. Id.;

see Dunbar v. Department of the Navy, 43 M.S.P.R. 640, 643-45 (1990).

However, the Board has found that, even when an appellant’s representative

misleads her as to the status of a filing, the appellant has a personal duty to

In support of her arguments, the appellant attaches new evidence and argument for the

first time on review. PFR File, Tab 1 at 4-9. The Board generally will not consider an

argument raised for the first time in a petition for review absent a showing that it is

based on new and material evidence not previously available despite the party’s due

diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R.

§ 1201.115(d). Indeed, the Board will not consider evidence submitted for the first time

on review when it previously was available but a party elected to not submit it to the

administrative judge. Fox v. U.S. Postal Service, 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The

appellant’s new evidence here predates the filing of her appeal and thus is not new.

PFR File, Tab 1 at 6-9. Nonetheless, even considering the new evidence and argument

on review, the appellant has failed to establish good cause for her untimely appeal.

monitor the progress of her appeal at all times and not leave the matter entirely to

her attorney. Miller v. Department of Homeland Security, 110 M.S.P.R. 258,

¶ 12 (2008).

According to the appellant, she did not learn that her prior attorney failed

to file an appeal of OPM’s reconsideration decision until after the deadline to file

had passed. PFR File, Tab 1 at 3. On or about January 4, 2021, her then-attorney

informed her that he had been suspended from practicing law and thus could no

longer represent her. Id. at 6. Shortly thereafter, the appellant, through a new

attorney, contacted OPM to inquire about the status of her case. IAF, Tab 5 at 8.

Therein, the appellant asserted that her last communication from OPM was the

acknowledgment of receipt of her request for reconsideration and that she was

unaware of any reconsideration decision. Id. However, the appellant personally

signed for receipt of OPM’s reconsideration decision via certified mail on

July 23, 2020. Id. at 20. Even if she did not read the decision and merely

forwarded it to her prior attorney, the record does not reflect that she took any

further steps to monitor the progress of her case for several months following her

receipt of OPM’s reconsideration decision. Compare Strong, 86 M.S.P.R. 243,

¶ 11 (finding no good cause when the appellant only contacted his attorney once

before the filing deadline and did not inquire about the status and progress of his

appeal), with Sullivan v. Office of Personnel Management, 88 M.S.P.R. 499, ¶ 9

(2001) (finding that the appellant established good cause when he repeatedly

contacted his attorney by both facsimile and telephone, and even physically drove

to the attorney’s office, in attempts to inquire about the progress of the appeal).

Moreover, the appellant does not assert that her prior attorney actively misled her

into believing that an appeal had been filed. See Sullivan, 88 M.S.P.R. 499, ¶ 9

(finding that, in addition to the appellant’s diligent efforts to monitor his appeal,

he was misled and erroneously reassured by his attorney that the appeal would be

timely filed); Dunbar, 43 M.S.P.R. at 644 (finding that the appellant’s attorney’s

misleading information thwarted his otherwise diligent efforts to file a timely

appeal). On the contrary, the appellant here took no steps to monitor her appeal

from the July 2020 receipt of OPM’s reconsideration decision to the January 2021

notice that her attorney had been suspended.

Accordingly, we find that the appellant has not made a diligent effort to

monitor the progress of her appeal, and she has not established sufficient grounds

to overcome the rule that she is responsible for the mistakes of her chosen

representative. Strong, 86 M.S.P.R. 243, ¶ 11. Despite her pro se status at the

time of filing her Board appeal, the appellant’s roughly 9-month delay in filing is

significant. See Johnson v. U.S. Postal Service, 98 M.S.P.R. 695, ¶ 8 (2005)

(finding no good cause for an 8-month delay in filing despite the appellant’s pro

se status). Thus, we find that the appellant has failed to establish good cause for

the delay in filing.

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

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.

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).

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:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.