The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MCCARTHY BARNES, JR., DOCKET NUMBER
Appellant, DC-0752-13-0357-I-1
v.
DEPARTMENT OF DEFENSE, DATE: September 3, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Frederic W. Schwartz, Jr., Esquire, Washington, D.C., for the appellant.
Lundi McCarthy Shafiei, Esquire, and Steven J. Weiss, Esquire,
Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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 appealed the agency’s action removing him from employment
as a Police Officer, AD-0083-07, with the Pentagon Force Protection Agency,
Department of Defense. Initial Appeal File (IAF), Tab 1, Tab 4 at 23. After a
hearing, the administrative judge affirmed the agency’s action. IAF, Tab 36,
Initial Decision (ID) at 1, 24; see IAF, Tab 35. The initial decision was issued on
February 21, 2014. ID at 1. The appellant filed a petition for review on March
31, 2014. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
initial decision was issued on February 21, 2014. ID at 1. The administrative
judge informed the appellant that the initial decision would become the Board’s
final decision on March 28, 2014, in the absence of a petition for review or a
Board decision to reopen the case on its own motion. ID at 24. The appellant
hand-delivered the petition for review to the Board on March 31, 2014. PFR File,
Tab 1. He has not alleged that he received the initial decision more than 5 days
after the date of issuance. See PFR File, Tab 2. The finality date of March 28,
2014, would thus apply. See 5 C.F.R. § 1201.114(e). The petition for review was
filed late by 3 days.
¶4 The Board will waive its time limit only upon a showing of good cause for
the delay in filing. 5 C.F.R. § 1201.114(g). A late-filed petition for review must
be accompanied by a motion that shows good cause for the untimely filing unless
the Board has specifically granted an extension of time or a motion for an
3
extension is pending. Id. The motion must be accompanied by an affidavit or
statement signed under penalty of perjury, which includes the reasons for failing
to request an extension before the filing deadline and a specific and detailed
description of the circumstances causing the late filing, accompanied by
supporting documentation or other evidence. Id.
¶5 With his petition for review, the appellant’s attorney filed a document
entitled “Non-Consent Motion for Leave to File Appellant’s Petition One
Business Day Late, Petition Having Been Lodged.” PFR File, Tab 2. Therein,
counsel asserted that on Friday, March 28, he finished the petition for review and
attempted to file it using the Board’s e-Appeal system. 2 He explained that the
petition was within the Board’s page limit, but the word count exceeded the
Board’s 7,500-word limitation by almost 5,000 words. 3 Id. at 1. Counsel
asserted that the Board’s page limitation methodology “is different from those of
the Federal appellate courts, and appears to be different from the last time [he]
appeared before the Board.” Id. at 2. Because he believed that it was too late to
submit a motion to exceed the word limit, he explained, counsel started editing
the petition for review but did not complete the task by midnight. Id. He alleged
that he sought to file the petition on Saturday, March 29, but was unable to log
into the e-Appeal system. Id. at 1, 3-4. He again sought to file the petition on
Monday, March 31, and was unable to log in. Id. at 2, 5-7. Instead, he
hand-delivered the petition to the Board that day. PFR File, Tab 1. Counsel
argues that the agency was not prejudiced by his untimely submission of the
petition for review and that agency counsel was “unavailable for consent” to his
2
Although the appellant hand-delivered his petition for review and motion, see PFR
File, Tabs 1-2, he was a registered e-filer, see, e.g., IAF, Tab 6.
3
“A petition for review, a cross petition for review, or a response to a petition for
review, whether computer generated, typed, or handwritten, is limited to 30 pages or
7500 words, whichever is less.” 5 C.F.R. § 1201.114(h).
4
late filing. PFR File, Tab 2 at 1-2. The motion does not include any affidavit or
statement signed under penalty of perjury. Id. at 3-7.
¶6 To establish good cause for an untimely filing, a party must show that he
exercised due diligence 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 a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of the party’s 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
which 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). An appellant who files an untimely
pleading bears the burden of proof on the issue of timeliness by showing that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. See Sanders v. Department of the Treasury, 88 M.S.P.R. 370, ¶ 5
(2001).
¶7 A delay of 3 days is relatively brief. See Melendez v. Department of
Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009). Additionally, the Clerk of the
Board’s acknowledgment letter did not address the timeliness issue, see PFR File,
Tab 3, and normal processing of the petition continued, possibly suggesting that
the appellant had shown good cause for the untimely submission. 4 Conversely,
4
In another context, however, our reviewing court has explained that a communication
from the Clerk of the Board does not constitute a final decision of the Board. See
McCormack v. Merit Systems Protection Board, No. 91-3547, 1994 WL 746298, at *2
(Fed. Cir. June 3,1994); see also Vaughn v. Department of the Treasury, 119 M.S.P.R.
605, ¶ 8 (2013) (although the Clerk of the Board customarily issues a letter to the
parties acknowledging the receipt of the petition for review, this letter is not required
by law, rule, or regulation; it is issued as a courtesy to the parties and to facilitate an
orderly adjudication on review).
5
the Clerk did not issue an order granting the appellant’s motion. Cf. PFR File,
Tab 8.
¶8 The brevity of the delay notwithstanding, the appellant has not shown good
cause for his failure to meet the filing deadline. He is represented by an attorney
who purports to have practiced before the Board, see PFR File, Tab 2 at 2, and
would thus be on notice of the Board’s practices and procedures. By filing the
“non-consent motion,” counsel acknowledged that he knew that the Board
requires parties to show good cause for the delay before it will accept an untimely
pleading. Counsel also affirmatively stated that the delay was entirely his fault.
See id. Nevertheless, the Board has long held that an appellant is responsible for
the errors of his chosen representative. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981).
¶9 Further, counsel’s error was avoidable. Although he asserts that he
discovered at the eleventh hour that the petition was too long, it is difficult to
believe that the word count was unexpected. A 5,000-word overage would be
noticeable when a document is limited to 7,500 words. The Board has not made
changes to the e-Appeal software affecting the system’s word count methodology.
Counsel also failed to submit a motion for an extension of time in which to file.
Such a motion would have been timely filed on March 28, 2014. 5 See 5 C.F.R.
§ 1201.114(f) (“Motions for extensions must be filed with the Clerk of the Board
5
The appellant’s attorney made similar mistakes when he attempted to file the
appellant’s reply to the agency’s response to the petition for review. Counsel requested
and received an extension of time in which to file. See PFR File, Tabs 5-6. After the
deadline passed, he moved for leave to file his pleading after the deadline and to exceed
the Board’s word limit. PFR File, Tab 7. The Clerk denied the motion. PFR File, Tab
8. Counsel later filed the reply, accompanied by a “non-consent motion” asking the
Board to accept the pleading. PFR File, Tab 9. The agency objected, stating that
counsel failed to explain any efforts he might have made to contact agency
representatives. PFR File, Tab 10. In response, counsel explained that he “neglected
through inadvertence to correct the contact representation.” PFR File, Tab 11.
6
on or before the date on which the petition or other pleading is due.” (emphasis
added)).
¶10 Considering all of the circumstances, we dismiss the petition for review as
untimely filed without good cause shown for the delay in filing. 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 review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court’s “Guide for Pro Se Petitioners and
7
Appellants,” which is contained within the court’s Rules of Practice, and Forms
5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.