The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN MICHAEL BRIDGE, SR., DOCKET NUMBER
Appellant, NY-0752-14-0261-I-1
v.
DEPARTMENT OF VETERANS DATE: January 23, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kevin Michael Bridge, Sr., Pendleton, New York, pro se.
Mark Williams, Jr., 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 request to reopen an initial decision that dismissed
his appeal of his alleged involuntary resignation during his probationary period
for lack of jurisdiction. For the reasons set forth below, we treat the appellant’s
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
request as an untimely petition for review, and DISMISS the petition as untimely
filed without good cause shown. 5 C.F.R. § 1201.114(e)(g). However, we
FORWARD the appellant’s new claim under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301–4333) to
the New York Field Office for docketing as a separate appeal.
BACKGROUND
¶2 The agency appointed the appellant to a career-conditional competitive
service Police Officer position subject to a 1-year probationary period. Initial
Appeal File (IAF), Tab 5 at 47. The agency notified the appellant during his
probationary period that he would be terminated for unacceptable attendance. Id.
at 23. Prior to the effective date of his termination, the appellant resigned from
his position. Id. at 18, 21.
¶3 The appellant filed a timely Board appeal alleging that his resignation was
involuntary. IAF, Tab 1 at 4, 6. The administrative judge issued an order to
show cause, which informed the appellant of the limited Board appeal rights of
probationary employees and ordered him to submit evidence and argument
demonstrating that the Board had jurisdiction over his appeal. IAF, Tab 3. The
appellant did not respond to the order, and the agency moved to dismiss the
appeal for lack of jurisdiction. See IAF, Tab 5 at 12, Tab 6, Initial Decision (ID)
at 3.
¶4 In an initial decision dated June 2, 2014, the administrative judge dismissed
the appeal for lack of jurisdiction, finding that the appellant had failed to raise a
nonfrivolous allegation that the agency had discriminated against him based on
partisan political reasons or marital status. 2 ID; see 5 C.F.R. § 315.806(b). The
2
The administrative judge did not address whether the appellant had raised a
nonfrivolous allegation that his termination was based on pre-appointment reasons. ID;
see 5 C.F.R. §§ 315.805, 315.806(c). Instead, the administrative judge appears to have
found that the appellant was removed for post-appointment reasons based upon the
agency’s statement to this effect in the notice of termination. ID at 3. However, we
find that this adjudicatory error did not affect the appellant’s substantive rights, and
3
initial decision informed the appellant that it would become the Board’s final
decision on July 7, 2014, unless he filed a petition for review by that date. ID at
5.
¶5 On August 2, 2014, the appellant filed a pleading entitled “Reopening an
Appeal Dismissed Without Prejudice,” in which he argued that the initial decision
was incorrect, and raised new allegations that the agency had refused to
compensate him for time that he spent traveling to training, and failed to notify
him of overtime opportunities. PFR File, Tab 1 at 3. For the first time, the
appellant also asserted that he “submitted Military Orders in lieu of scheduled
working days” with the agency, and that these days “remain[ed] outstanding.” Id.
With his pleading, the appellant submitted several documents that were not part
of the record below. 3 PFR File, Tab 1 at 4-37.
¶6 The Clerk of the Board informed the appellant that the Board could not
reopen his appeal based upon his August 2, 2014 submission because the initial
decision did not dismiss his appeal without prejudice. PFR File, Tab 2 at 1. The
Clerk notified the appellant that the Board considered his filing to be a petition
for review, which appeared to be untimely, and invited him to file a motion to
accept the filing as timely or to waive the time limit for good cause. Id. at 1-2.
does not form a basis for reversing the initial decision. See Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984). In the order to show cause, the administrative
judge advised the appellant that he would be entitled to a hearing if he raised a
nonfrivolous allegation that his termination was based on matters which occurred before
his appointment, and that he was not afforded the procedural protections set forth in
5 C.F.R. § 315.805. IAF, Tab 3 at 2. The appellant did not submit any evidence or
argument in response to the order to show cause, and has not asserted in his filings
below or on review that he was terminated for pre-appointment reasons. See ID at 3;
IAF, Tab 1; Petition for Review (PFR) File, Tabs 1, 3.
3
These documents included several email chains where some, but not all, of the emails
in the chains were part of the record below. See IAF Tab 5 at 28-29; PFR File, Tab 1 at
11-12.
4
¶7 The appellant submitted a motion for waiver in response to the Clerk’s
notice. PFR File, Tab 3. The agency has not responded to the appellant’s filings.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is dismissed as untimely filed without good
cause shown.
¶8 The Board treats a request to reopen an initial decision that became final
when neither party petitioned for review as an untimely filed petition for review.
Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).
Further, the Board generally does not reopen a case under its own regulations to
cure the untimeliness of a petition for review. Valdez v. Office of Personnel
Management, 103 M.S.P.R. 88, ¶ 4 (2006). We discern no reason to depart from
these rules in this case, and, accordingly, the appellant’s submission will be
treated as an untimely filed petition for review.
¶9 A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the appellant shows that he received the initial
decision more than 5 days after it was issued, within 30 days after the date that
the appellant received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
initial decision was issued on June 2, 2014, and the appellant does not allege that
he received the initial decision more than 5 days after its issuance date. PFR File,
Tabs 1, 3. Accordingly, the appellant’s August 2, 2014 petition for review, which
was due no later than July 7, 2014, was untimely by 26 days. See ID at 5.
¶10 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing of a petition, the appellant must
demonstrate that he exercised due diligence or ordinary prudence under the
particular circumstances of his case. See Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980) (setting forth this rule in the context of filing
an initial appeal). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
5
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).
¶11 Applying these factors, we find that the appellant has not shown good cause
for his filing delay in this case. Although the appellant is pro se, his 26-day delay
is not minimal. See Allen v. Office of Personnel Management, 97 M.S.P.R. 665,
¶ 8 (2004) (finding that a 14-day delay in filing a petition for review was not
minimal). In his motion for waiver, the appellant asserts that his petition for
review was untimely because he was unable to afford counsel and had difficulty
understanding the Board’s procedures and jargon. PFR File, Tab 3 at 4.
However, an inability to afford counsel and a lack of familiarity with Board
procedures do not establish good cause for an untimely petition for review. See
Lambright v. Office of Personnel Management, 114 M.S.P.R. 507, ¶ 7 (2010)
(holding that an inability to afford counsel did not establish good cause for the
untimely filing of a petition for review); Brum v. Department of Veterans
Affairs, 109 M.S.P.R. 129, ¶ 6 (2008) (finding that lack of familiarity with legal
matters and Board procedures did not establish good cause for the untimely filing
of a petition for review). Here, the initial decision expressly advised the
appellant, in plain language, of the time limit and procedures for obtaining Board
review. ID at 5-6. The appellant’s failure to file his petition for review in
accordance with these unambiguous instructions does not reflect due diligence.
See Schoenherr v. Department of Veterans Affairs, 73 M.S.P.R. 99, 102 (1997)
(determining that a pro se appellant did not exercise due diligence when he did
not follow unambiguous instructions for filing a petition for review set forth in
the initial decision).
6
¶12 The appellant further asserts that his petition for review was untimely
because he needed to spend time caring for his children. PFR File, Tab 3 at 4.
We find that the appellant’s child care obligations do not establish good cause for
his filing delay. See Reid v. Department of Veterans Affairs, 95 M.S.P.R. 639,
¶ 6 (2004) (an appellant’s need to care for his son during his wife’s illness did not
establish good cause for an untimely petition for review); Smith v. Office of
Personnel Management, 92 M.S.P.R. 1, ¶ 5 (2001) (an appellant’s family
difficulties and need to care for his sons did not establish good cause for an
untimely petition for review).
¶13 In addition, the appellant claims that he missed the filing deadline because
he was attempting to complete 15 days of annual training that he owed his
military unit. PFR File, Tab 3 at 4. With his motion for waiver, the appellant
submitted copies of orders from the New York Army National Guard (NYARNG).
Id. at 5-11. We find that the appellant’s training obligations with the NYARNG
do not establish good cause for his untimely filing. The orders indicate that only
a single day of the appellant’s NYARNG annual training was scheduled prior to
July 7, 2014, the deadline for filing a petition for review. Id. With his motion to
reopen his appeal, the appellant also submitted military leave and earnings
statements from the Defense Finance Accounting Service (DFAS), which indicate
that he completed 2 additional days of annual training between the date that the
initial decision was issued and the deadline for filing his petition for review. PFR
File, Tab 1 at 32. Only 4 out of the appellant’s remaining 14 days of annual
training were scheduled prior to August 2, 2014, the date that he filed his motion
to reopen his appeal. PFR File, Tab 3 at 6; see PFR File, Tab 1 at 35 (reflecting
payment for those 4 days of training). Thus, even assuming that the appellant’s
annual training obligations with the NYARNG could establish good cause for an
7
untimely filing, they would at most account for 3 days, and would not justify his
26-day filing delay. 4
¶14 To the extent that the appellant contends that the documents he submits in
the first instance on review constitute new and material evidence, this assertion
fails to establish 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
is of sufficient weight to warrant an outcome different from that of the initial
decision. Agbenyeke v. Department of Justice, 111 M.S.P.R. 140, ¶ 12 (2009).
The appellant has submitted documents that predate the initial decision,
including: (1) email correspondence with the agency, much of which pertains to
efforts to reconcile his employment with the agency with his obligations to the
Buffalo Police Academy; (2) a memo from the NYARNG, dated March 20, 2014,
which states the appellant was required to perform several days of annual training
in March 2014; and (3) military leave and earnings statements from DFAS,
4
We recognize that under the Servicemembers Civil Relief Act of 2003 (SCRA), “the
period of a servicemember’s military service may not be included in computing any
period limited by law . . . for the bringing of any action or proceeding in a court . . . by
or against the servicemember . . . .” 50 U.S.C. app. 526(a); see Brown v. U.S. Postal
Service, 106 M.S.P.R. 12, ¶¶ 12-16 (2007) (remanding an appeal for consideration of
whether the SCRA tolling provision covered the appellant’s military service).
However, only certain forms of National Guard duty toll filing deadlines under the
SCRA. The SCRA defines “military service” for National Guard members to include
only “service under a call to active service authorized by the President or the Secretary
of Defense for a period of more than 30 consecutive days under section 502(f) of [T]itle
32, United States Code, for purposes of responding to a national emergency declared by
the President and supported by Federal funds.” 50 U.S.C. app. § 511(2)(A)(ii); see
50 U.S.C. app. § 511(2)(A)(i) (defining service for servicemembers not in the National
Guard as active duty under 10 U.S.C. § 101(d)(1)); 10 U.S.C. § 101(d)(1) (excluding
full time National Guard duty from the definition of active duty military service). The
orders submitted by the appellant indicate that his NYARNG training was for periods of
less than 30 consecutive days. PFR File, Tab 3 at 5-11. Thus, time that the appellant
spent in annual training with the NYARNG prior to filing his petition for review would
not toll the filing deadline under the SCRA.
8
reflecting annual training and funeral duty obligations on various dates. PFR File
Tab 1 at 4-8, 11-28. However, the appellant has not explained why these
documents were previously unavailable despite due diligence, and they are not
relevant to the issue of the Board’s jurisdiction over his appeal as a probationary
employee. See Alexander v. Department of Veterans Affairs, 90 M.S.P.R. 591,
¶ 8 (2002) (finding that documents that were available before the initial decision
were not new evidence establishing good cause for the untimely filing of a
petition for review); Dow v. Department of Homeland Security, 109 M.S.P.R.
633, ¶ 7 (2008) (new evidence that did not establish that the initial decision’s
dismissal for lack of jurisdiction was incorrect was not material).
¶15 The appellant also submits documents created after the initial decision was
issued, including: (1) additional DFAS leave and earnings statements reflecting
annual training and funeral duty obligations on various dates through July 2014;
and (2) email correspondence with the agency, which discusses the appellant’s
requests to resolve his claims against the agency. PFR File, Tab 1 at 9-10, 29-37.
We find that these documents are not material to the Board’s jurisdiction over the
appellant’s appeal, and, as discussed previously, they do not establish good cause
for his untimely filing. See Maples v. Defense Logistics Agency, 31 M.S.P.R.
667, 671 (1986) (the fact that the appellant sought to settle with the agency did
not establish good cause for waiving the time limit to file a petition for review),
aff’d, 824 F.2d 980 (Fed. Cir. 1987).
¶16 Regarding the appellant’s new arguments that the agency refused to
compensate him for time spent traveling to training and failed to notify him of
overtime opportunities, the Board generally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); see Gursslin
v. U.S. Postal Service, 102 M.S.P.R. 427, ¶ 9 (2006) (declining to address new
arguments raised in the first instance in an untimely petition for review). Even
9
assuming his petition for review were timely, the appellant has not established
that these new arguments are based upon evidence that was not previously
available, and thus, we will not reopen his appeal to consider them here. 5
¶17 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 concerning the dismissal of the appeal.
The appellant’s USERRA claim is forwarded for docketing as a separate appeal.
¶18 For the first time on review, the appellant asserts that he “submitted
Military Orders in lieu of scheduled working days” with the agency, “as permitted
by Federal Law,” and that these days “remain outstanding.” PFR File, Tab 1 at 3.
We construe the appellant’s statements as a claim that the agency either
discriminated against him based upon his military obligations, or denied him
reemployment after a period of absence due to military service, in violation of the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). See 38 U.S.C. §§ 4311(a), 4312(a). To establish Board jurisdiction
over a USERRA discrimination claim, an appellant must allege that (1) he
performed duty or has an obligation to perform duty in a uniformed service of the
United States; (2) the agency denied him initial employment, reemployment,
retention, promotion, or any benefit of employment; and (3) the denial was due to
the performance of duty or obligation to perform duty in the uniformed service.
Gossage v. Department of Labor, 118 M.S.P.R. 455, ¶ 10 (2012). In contrast, a
reemployment claim arises under USERRA when an employee claims that an
agency has not met its obligations under 38 U.S.C. §§ 4312-4318 following his
absence from civilian employment to perform uniformed service. Clavin v. U.S.
5
We further note that the denial of overtime or premium pay is not a reduction in pay
that is appealable to the Board. See Bell v. Department of Transportation, 39 M.S.P.R.
210, 213 n.5 (1988); see also 5 U.S.C. § 7512(4).
10
Postal Service, 99 M.S.P.R. 619, ¶ 5 (2005). Unlike discrimination claims, an
appellant’s rights under USERRA’s reemployment provisions do not depend on
the motivation for an agency’s action or inaction. 6 Rassenfoss v. Department of
the Treasury, 121 M.S.P.R. 512, ¶ 10 (2014).
¶19 USERRA claims are broadly and liberally construed, are not subject to a
statute of limitations, and may be raised in the first instance in a petition for
review. Henson v. U.S. Postal Service, 110 M.S.P.R. 624, ¶ 10 n.6
(2009); 5 C.F.R. § 1208.12. In addition, unlike in the case of an adverse action
under 5 U.S.C. chapter 75, the Board has jurisdiction over USERRA appeals,
even where an employee was serving a probationary period at the time of the
alleged violation. Wright v. Department of Veterans Affairs, 73 M.S.P.R. 453,
454 (1997). Therefore, we FORWARD the appellant’s new USERRA claim to
the New York Field Office for docketing and adjudication as a new 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
6
Not all military service qualifies an individual for reemployment. See generally
38 U.S.C. § 4303(13), (16). When this case is redocketed, the appellant will have the
burden to show that he performed full-time National Guard duty, or that his service
otherwise qualified him for reemployment under USERRA. Id.
11
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
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.