The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 39
Docket No. SF-0752-12-0788-I-1
Darla Gaetos,
Appellant,
v.
Department of Veterans Affairs,
Agency.
June 2, 2014
Michael J. Sanchez, Daly City, California, for the appellant.
Mark Win, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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).
BACKGROUND
¶2 The appellant filed a petition for appeal of the agency’s decision to remove
her effective August 17, 2012, from the position of Medical Support Assistant.
Initial Appeal File (IAF), Tab 1, Tab 4, Subtab 4a. On June 7, 2013, the
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administrative judge issued an initial decision affirming the agency’s removal
action. IAF, Tab 47, Initial Decision (ID). The initial decision had a finality date
of July 12, 2013. ID at 60.
¶3 The appellant electronically filed a petition for review on July 13, 2013.
Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued a show
cause order notifying the appellant that her petition for review appeared to be
untimely filed and providing her with her burden of proof on timeliness. PFR
File, Tab 4. The Clerk of the Board advised the appellant that, if she wished to
file a submission in response to the order, it needed to be postmarked if mailed or
sent by facsimile within 10 calendar days of the date of the order. PFR File, Tab
4 at 3. The appellant has not responded to the show cause order.
ANALYSIS
¶4 To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or, if the decision was received more than 5 days
after the date of issuance, within 30 days after receipt. 5 C.F.R. § 1201.114 (d).
Here, the appellant has not alleged that the initial decision was received more
than 5 days after the date of issuance. Accordingly, the appellant had until July
12, 2013, the 35th day following the issuance of the June 7, 2013 initial decision,
to file a petition for review. The appellant’s July 13, 2013 petition for review
was time-stamped 06:38:51 Eastern Standard Time. PFR File, Tab 1. Because
the appellant’s petition for review was submitted from California, it was untimely
filed by approximately 3½ hours. See 5 C.F.R. § 1201.14 (m)(1) (all pleadings
filed via the Board’s e-Appeal Online system are stamped with Eastern Standard
Time, but the timeliness of a pleading is assessed based on the time zone from
which the pleading is being filed).
¶5 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114(f). To establish good
cause for an untimely filing, a party must show that she exercised due diligence
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or ordinary prudence under the particular circumstances of the 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 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 petition. Moorman
v. Department of the Army, 68 M.S.P.R. 60 , 62-63 (1995), aff'd sub nom.
Moorman v. Merit Systems Protection Board, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6 We find that the appellant has failed to show good cause for a waiver of the
filing deadline. Despite the Clerk of the Board’s show cause order providing the
appellant with her burden of proof on timeliness and an opportunity to explain
her filing delay, neither the appellant nor her representative has submitted a
response to the order. PFR File, Tab 4. The appellant has not otherwise
submitted any evidence or argument regarding the timeliness of the petition for
review except to request in her petition for review that the “few hours of
untimeliness be waived by the Board.” PFR File, Tab 1 at 3. Although the delay
in filing in this case was only 3½ hours, the Board has consistently denied a
waiver of its filing deadline in cases where the delay is minimal and a good
reason for the delay is not shown. See Noble v. U.S. Postal Service, 73 M.S.P.R.
59 , 62-63 (1997) (minimal 2-day delay in filing petition for review and the fact
that the appellant was not represented by an attorney were outweighed by
appellant’s failure to exercise due diligence and ordinary prudence under the
circumstances); Dade v. Office of Personnel Management, 45 M.S.P.R. 12 , 14-15
(1-day delay was not waived where appellant provided no credible basis for
finding that petition for review was actually deposited in the mail 2 days earlier
than postmark indicated), aff'd, 923 F.2d 870 (Fed. Cir. 1990) (Table); Dotson v.
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U.S. Postal Service, 41 M.S.P.R. 412 , 414 (1989) (1-day filing delay not waived
where contention that the appeal was timely filed on October 11, 1988, was
insufficient to overcome stamped postmark showing date of October 12, 1988),
aff'd, 895 F.2d 1420 (Fed. Cir. 1990) (Table). Moreover, this is especially true
here because the appellant in this case was not acting pro se, and she is
responsible for the errors of her chosen representative. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667 , 670 (1981). Under the circumstances in this case, we
therefore find that the minimal filing delay does not outweigh the appellant’s
failure to show that she acted with due diligence in filing her petition for review.
ORDER
¶7 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 the removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination claims by
the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) ( 5 U.S.C. § 7702 (b)(1)). If you submit
your request 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 your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703 (b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5 (f) and
29 U.S.C. § 794a .
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.