Charles Edwards v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES EDWARDS, DOCKET NUMBER

Appellant, PH-0752-13-0303-I-1

v.

DEPARTMENT OF THE NAVY, DATE: August 27, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles Edwards, Seattle, Washington, pro se.

Scott Egers and Scott W. Flood, Esquire, Portsmouth, New Hampshire, 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

dismissed the appeal as settled. For the reasons set forth below, the appellant’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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petition for review is DISMISSED as untimely filed without good cause

shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

¶2 Effective March 12, 2013, the agency indefinitely suspended the appellant

without pay based on the suspension of his access to classified information.

Initial Appeal File (IAF), Tab 8 at 23-26. Thereafter, the appellant filed a Board

appeal contesting his indefinite suspension. IAF, Tab 1.

¶3 The parties asked to utilize the Board’s Mediation Appeals Program (MAP),

and the administrative judge granted that request. IAF, Tabs 20, 21. On August

16, 2013, the MAP judge issued a notice of termination from MAP, which stated

the case had settled and included an executed settlement agreement as an

attachment. IAF, Tab 24. The settlement agreement provided for withdrawal of

the Board appeal. Id. at 3-7.

¶4 On August 19, 2013, the administrative judge issued an initial decision

dismissing the appeal as settled and accepting the settlement agreement into the

record for enforcement purposes. IAF, Tab 25, Initial Decision (ID). The

administrative judge found that the parties had reached a settlement and had

entered into the settlement freely and voluntarily. ID at 2. He further found that

the appellant expressly represented that he understood the terms of the agreement,

and that he had the opportunity to consult with counsel. ID at 2. The

administrative judge also found that the settlement is lawful on its face. ID at 2.

He found that accepting the settlement agreement into the record is appropriate

because the subject matter of the appeal is within the Board’s adverse action

jurisdiction. ID at 2. The initial decision had a finality date of September 23,

2013. ID at 3.

¶5 The appellant filed a petition for review with the Northeastern Regional

Office, which forwarded the appellant’s petition to the Office of the Clerk of the

Board. Petition for Review (PFR) File, Tab 1 at 1, Tab 2. In his petition for

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review, the appellant seeks, among other things, to modify the settlement

agreement. PFR File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 A petition for review must be filed within 35 days after the issuance of the

initial decision. See 5 C.F.R. § 1201.114(e). The Board will waive this time

limit only upon a showing of good cause for the delay in filing. 5 C.F.R.

§§ 1201.12, 1201.114(g). To establish good cause for the untimely filing of a

petition, an appellant must show that he exercised due diligence or ordinary

prudence under the particular circumstances of his case. Alonzo v. Department of

the Air Force, 4 M.S.P.R. 180, 184 (1980).

¶7 The Board treats a submission mistakenly directed to the regional or field

office as a petition for review filed on the date it was filed with the regional or

field office. Woods v. Department of the Treasury, 87 M.S.P.R. 557, ¶ 4 n.*

(2001). The date of filing by mail is determined by the postmark date. 5 C.F.R.

§ 1201.4(l). Here, the appellant’s petition for review was postmarked

November 5, 2013. PFR File, Tab 1 at 15. Accordingly, the appellant’s petition

for review was filed more than 5 weeks after the initial decision’s September 23,

2013 finality date.

¶8 Because the petition for review was filed weeks after the last date to timely

file a petition for review, the Clerk of the Board informed the appellant that his

petition appeared to be untimely and that an untimely-filed petition for review

must be accompanied by a motion for waiver of the filing time limit and by either

an affidavit or a statement, signed under penalty of perjury, showing good cause

for the untimely filing. PFR File, Tab 2; see 5 C.F.R. § 1201.114(g). The Clerk

attached to the notice a “Motion to Accept Filing as Timely or to Waive Time

Limit” form that specifically provided for the inclusion of supporting

documentation or other evidence. PFR File, Tab 2. The notice informed the

appellant that if he failed to establish that his petition for review was timely filed

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or that good cause existed for the delay, the Board might issue an order

dismissing his petition for review as untimely filed. Id.

¶9 In response to the Clerk of the Board’s notice, the appellant filed a motion

to waive the time limit in which he stated that he needed more time to prepare the

documents which he is now submitting to the Board. PFR File, Tab 5 at 2.

Despite the appellant’s pro se status, his difficulty in securing documentation to

support his appeal does not provide good cause for his filing delay. 2 See

Robinson v. Office of Personnel Management, 85 M.S.P.R. 589, ¶ 5 (2000)

(finding that the appellant’s difficulty in obtaining information from his former

employer did not excuse his filing delay); Criddell v. U.S. Postal

Service, 60 M.S.P.R. 30, 33 (1993) (an appellant’s effort to gather information

that was believed to support his case does not establish good cause for a waiver of

the filing deadline).

¶10 To the extent that the appellant is contending that the documents he submits

on review constitute new and material evidence, the appellant’s assertion fails to

provide a basis for waiving the filing deadline. The discovery of new evidence

may establish good cause for the untimely filing of a petition for review if the

evidence was not readily available before the close of the record below and if it is

of sufficient weight to warrant an outcome different from that of the initial

decision. Alexander v. Department of Veterans Affairs, 90 M.S.P.R. 591, ¶ 8

(2002). Many of the documents the appellant submits on review were available

before of the issuance of the initial decision and thus are not new. See Avansino

v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R. § 1201.115,

the Board will not consider evidence submitted for the first time with the petition

for review absent a showing that it was unavailable before the record was closed

despite the party’s due diligence).

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While the appellant was represented below, on November 5, 2013, his attorneys

submitted a notice advising the Board of their decision to withdraw as the appellant’s

representatives in this case. PFR File, Tab 1 at 14.

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¶11 The appellant has submitted documents that were not available prior to the

issuance of the initial decision, including a November 5, 2013 letter from the

appellant’s medical care provider and November 1, 2013 and December 2, 2013

notices of proposed removal from the agency. PFR File, Tab 1 at 5-6, Tab 5

at 6-7, 10-13. The appellant has failed to explain how this evidence would

warrant a different outcome than that reached by the administrative judge in this

appeal. See McCollum v. Department of the Army, 92 M.S.P.R. 67, ¶ 6 (2002)

(dismissing the petition for review as untimely filed without good cause shown

where the appellant failed to explain how his alleged new evidence would warrant

a different outcome than that reached by the administrative judge).

¶12 To the extent that the appellant is attempting to argue that the untimely

filing was the result of a medical condition, he has failed to adequately support

this argument. To establish that an untimely filing was the result of a medical

condition, the party must identify the time period during which he was

incapacitated, support his allegation with corroborating medical evidence, and

explain how the medical condition prevented him from timely filing his

submission or requesting an extension of time. See, e.g., Lacy v. Department of

the Navy, 78 M.S.P.R. 434, 437 (1998). The medical documentation the appellant

submits on review, including the November 5, 2013 letter noted above, is

insufficient to establish the untimely filing was the result of a medical condition.

PFR File, Tab 1 at 5-12, Tab 5 at 6-9. Although this evidence provides insight

into the appellant’s current and past medical problems, it does not explain how

his medical problems prevented him from timely filing his petition for review or

requesting an extension of time to file his petition. See Coles v. Department of

the Army, 85 M.S.P.R. 571, ¶ 6 (2000).

¶13 Moreover, the appellant’s arguments on the merits of the underlying action

are not relevant to the timeliness issue. See id., ¶ 5; Walls v. Merit Systems

Protection Board, 29 F.3d 1578, 1582 (Fed. Cir. 1994) (the Board should

consider the length of the delay in every good cause determination). Finally, we

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note that the filing delay of over 5 weeks was not minimal. See

Robinson, 85 M.S.P.R. 589, ¶ 6 (finding a filing delay of 30-days to not be

minimal). Based on the evidence and argument submitted, we find that the

appellant has failed to show that he exercised due diligence and ordinary

prudence in filing his petition for review; thus, he has failed to establish good

cause for the untimely filing. See Alonzo, 4 M.S.P.R. at 184.

¶14 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 indefinite suspension.

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

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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

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.