The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY SMITH, DOCKET NUMBER
Appellant, AT-0432-13-0183-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 12, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Gary L. Printy, Esquire, Tallahassee, Florida, for the appellant.
Major Daniel J. Watson, Eglin Air Force Base, Florida, 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 with prejudice pursuant to the appellant’s request. 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).
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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¶2 The appellant filed an initial appeal challenging his performance-based
removal. Initial Appeal File (IAF), Tab 1. Other than a designation of
representative form, IAF, Tab 7, the appellant filed nothing else before requesting
that the appeal be dismissed without prejudice, IAF, Tab 13. The agency
objected, asserting that such a dismissal would unduly prejudice its ability to
defend itself against the appellant’s claims, citing the appellant’s failure to
respond to its discovery requests, the potential unavailability of witnesses, and its
potential back pay liability. IAF, Tab 14. The agency subsequently filed a timely
motion to compel discovery. IAF, Tab 15; see 5 C.F.R. § 1201.72(d)(3). The
administrative judge then issued an order in which he noted the appellant’s failure
to file a prehearing submission, participate in the scheduled prehearing
conference, and respond to the agency’s discovery. IAF, Tab 17. The
administrative judge ordered the appellant to correct his deficiencies and to show
cause why he should not be sanctioned for his failure to comply with the Board’s
orders. Id. Also, citing both the agency’s objection and the appellant’s failure to
state the basis for his request, the administrative judge denied the appellant’s
motion to dismiss the appeal without prejudice. Id. The appellant did not
respond and instead filed a pleading titled notice of voluntary dismissal with
prejudice. IAF, Tab 18. Once again, the appellant did not state the basis for his
request. Id. Nevertheless, the administrative judge granted the appellant’s
request and dismissed the appeal with prejudice. IAF, Tab 19, Initial Decision
(ID).
¶3 The Board’s regulations require that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if a party
shows that he received the initial decision more than 5 days after it was issued,
within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e);
Via v. Office of Personnel Management, 114 M.S.P.R. 632, ¶ 4 (2010). The
record shows that the appellant and his representative both registered as e-filers.
IAF, Tabs 1, 7. Registration as an e-filer constitutes consent to accept electronic
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service of documents issued by the Board and the Board’s regulations further
provide that Board documents served on registered e-filers are deemed received
on the date of electronic submission. 5 C.F.R. § 1201.14(e), (m)(2). The record
reflects that the initial decision in this matter was transmitted to the appellant and
his representative by electronic mail on February 28, 2013. ID at 7. The initial
decision became the Board’s final decision on April 4, 2013. ID at 2; 5 C.F.R.
§ 1201.113.
¶4 The appellant filed his petition for review on April 18, 2014. Petition for
Review (PFR) File, Tab 1. Therefore, the appellant’s petition for review was
over 1 year late. 5 C.F.R. § 1201.114(e). The Board’s regulations require that a
late-filed petition for review be accompanied by a motion that shows good cause
for the untimely filing along with a sworn affidavit which includes, among other
things, a specific and detailed description of the circumstances causing the late
filing. 5 C.F.R. § 1201.114(g). Because the appellant e-filed his petition for
review, the online interview informed him that the finality date for his decision
had passed and explained his burden to demonstrate good cause for his untimely
filing. PFR File, Tab 1 at 3. The appellant therein discussed the procedural
history of his removal and subsequent appeal, and he also described in detail why
he wanted the Board to reopen his appeal and dismiss it without prejudice, but he
failed to address the lateness of his petition for review, much less provide good
cause for its untimely filing. Id. at 3-10.
¶5 Generally, the withdrawal of an appeal is an act of finality that has the
effect of removing the appeal from the Board’s jurisdiction, and, absent unusual
circumstances such as misinformation or new and material evidence, neither of
which the appellant raises herein, the Board will not reopen or reinstate an appeal
once it has been withdrawn. Pradier v. U.S. Postal Service, 113 M.S.P.R. 495,
¶ 7 (2010). Where an appellant withdrew his appeal and then filed a timely
petition for review of the initial decision dismissing the appeal as withdrawn, the
Board will examine whether the withdrawal is voluntary. Id., ¶ 9 n.1 (citing
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Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010)). In this
circumstance, however, the Board treats the appellant’s untimely petition for
review as a request to reopen his appeal. See Lincoln, 113 M.S.P.R. 486, ¶¶ 10,
13. The Board may reopen a case in the interests of justice but will only do so if
the appellant has exercised due diligence in seeking reopening. Page v.
Department of Transportation, 110 M.S.P.R. 492, ¶ 7 (2009). 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). Importantly, the
Board’s authority to reopen a case is limited by the requirement that such
authority be exercised within a reasonably short period of time, which is usually
measured in weeks, not months or years. Arenal v. Office of Personnel
Management, 106 M.S.P.R. 272, ¶ 10 (2007), aff’d, 264 F. App’x 891 (Fed. Cir.
2008). As noted above, the appellant’s request to reopen his case is over 1 year
old and his failure to address that delay, much less establish good cause for it,
does not exhibit the requisite diligence and effectively precludes the relief he
seeks.
¶6 Lastly, we note that the initial decision did not inform the appellant of his
mixed case appeal rights even though the appellant was affected by an action that
is appealable to the Board and he alleged prohibited discrimination. See
Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 14 (2013). We
have therefore included proper notice of the appellant’s further review rights
here. See Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 24
(2010).
¶7 Accordingly, we DISMISS the petition for review as untimely filed without
good cause shown. This is the final decision of the Board regarding the
timeliness of the petition for review. The initial decision remains the final
decision of the Board regarding the appellant’s appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. 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:
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
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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
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.