The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAMELA S. SHAUT, DOCKET NUMBER
Appellant, NY-0752-12-0151-I-2
v.
DEPARTMENT OF VETERANS DATE: January 15, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Robert C. Laity, Tonawanda, New York, for the appellant.
Sheila Q. Weimer, Esquire, Buffalo, New York, 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 for lack of jurisdiction. For the reasons set forth below, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
¶2 After affording the appellant her requested hearing, the administrative judge
issued an initial decision that dismissed for lack of jurisdiction the appellant’s
appeal of her allegedly involuntary disability retirement. The administrative
judge informed the appellant that the deadline for filing a petition for review was
November 1, 2013, and she afforded the appellant correct and complete notice of
her right to seek review of the initial decision before the Board or the United
States Court of Appeals for the Federal Circuit. Initial Decision (ID) at 19-23.
¶3 On June 26, 2014, the appellant submitted to the Clerk of the Board a copy
of a pleading in a request for reconsideration she had filed before the Equal
Employment Opportunity Commission (EEOC). Petition for Review (PFR) File,
Tab 1. The Clerk’s Office interpreted this filing as an attempt to file a belated
petition for review and informed the appellant that her petition appeared to be
untimely filed and of her right to file a motion to accept the petition as timely
filed and/or to waive the time limit for good cause. PFR File, Tab 2. In response,
the appellant asserts that her appeal is a mixed-case appeal and she properly
sought review of the initial decision before the EEOC in a timely manner. PFR
File, Tab 3 at 3. She implicitly argues that she is entitled to Board review of the
merits of her case and, apparently, that her purportedly timely filing at the EEOC
on October 5, 2013, excuses the untimely filing of her petition for review before
the Board. Id. The agency responds in opposition to the petition for review and
to the appellant’s motion to accept the petition as timely filed and/or to waive the
time limit for good cause. PFR File, Tab 4. The appellant has not filed a reply to
the agency’s response.
¶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. Vandagriff v. Department
of the Army, 106 M.S.P.R. 446, ¶ 4 (2007); 5 C.F.R. § 1201.114(e). Here, the
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appellant acknowledges that she received the initial decision on October 2, 2013.
PFR File, Tab 1 at 3. Therefore, her petition for review was due on November 1,
2013, and was untimely filed by approximately 8 months.
¶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(g). 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.
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, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6 The Board has, in appropriate circumstances, found good cause when an
appellant is reasonably misled by the notice of appeal rights contained in an
initial decision or otherwise timely, but mistakenly, files a petition for review in
the wrong forum. Godesky v. Department of Health & Human Services,
101 M.S.P.R. 280, ¶ 6 (2006) (the appellant’s timely, but mistaken, filing with the
EEOC was deemed a timely filing with the Board); Means v. Department of
Labor, 60 M.S.P.R. 108, 111-12 (1993) (good cause found for the delay in filing
an untimely request for reconsideration of an arbitration decision where the
petitioner initially sought review with the EEOC and where the arbitrator had
failed to afford the petitioner proper notice of his appeal rights). Here, however,
the appellant makes no claim that she was confused or misled by the notice of
appeal rights or that she mistakenly filed her petition for review with the EEOC
instead of the Board. Instead, the appellant made the intentional decision to
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pursue her case before the EEOC instead of the Board on the incorrect basis that
her case was a mixed-case appeal. When, as in this appeal, a Board
administrative judge dismisses an appeal over a purportedly mixed case for lack
of jurisdiction, the EEOC considers that case to be a non-mixed case. See
29 C.F.R. § 1614.302(c)(2)(ii). The EEOC has the authority to hear petitions for
review of a final Board decision in mixed-case appeals. 29 C.F.R. § 1614.303(a).
If the appellant wished to challenge the finding that her case is a non-mixed case,
i.e., if she wished to challenge the administrative judge’s finding that the Board
lacks jurisdiction over her appeal, her remedy is to file a petition for review of
the administrative judge’s initial decision with the Board.
¶7 Under the circumstances of this case, we find that the appellant has failed to
show that she exercised due diligence or ordinary prudence that would justify
waiving the filing deadline. The appellant is not pro se and the 8-month delay in
filing is significant. Moreover, the initial decision afforded the appellant clear,
accurate, and complete notice of her appeal rights. ID at 19-23. The Board has
declined to find good cause for an untimely filing where, as here, the initial
decision clearly notified the appellant of the time limit within which to file her
petition for review even in cases in which the appellant is pro se. Bonk v.
Department of Homeland Security, 109 M.S.P.R. 210, ¶ 7, aff’d, 301 F. App’x
965 (Fed. Cir. 2008). Further, to the extent the appellant impliedly contends that
she had a right to appeal the initial decision to the EEOC, she has not shown that
any misinformation caused her untimeliness. Id.
¶8 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 dismissal of the underlying appeal for lack of jurisdiction.
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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,. 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
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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.