Rodderick A. Smith v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RODDERICK A. SMITH, DOCKET NUMBER

Appellant, AT-0752-14-0339-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: February 10, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Jerry Jerome Galloway, Warner Robins, Georgia, for the appellant.

Jonathan Lee Simpson, Robins Air Force Base, Georgia, 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 untimely filed. Generally, we grant petitions such as this

one only when: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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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or the erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The agency removed the appellant from the WG-10 position of Aircraft

Mechanic based on the charge of final revocation of eligibility for access to

classified information or assignment to sensitive duties. Initial Appeal File

(IAF), Tab 5 at 19-43 of 62. The decision to remove letter notified the appellant

that an appeal to the Board must be filed within 30 days of December 5, 2013, the

effective date of the removal action. Id. at 20 of 62. The appellant filed his

appeal by facsimile on January 8, 2014. IAF, Tab 1 at 1. The agency filed a

motion to dismiss the appeal as untimely filed. IAF, Tab 5 at 3-5 of 62. The

administrative judge issued an order to the appellant noting the agency’s motion

to dismiss, and affording the appellant 7 days to show that his appeal was timely

filed or that good cause existed for any delay in filing. IAF, Tab 6. The

appellant did not respond to the order, and the administrative judge dismissed the

appeal as untimely filed. IAF, Tab 9.

¶3 In his petition for review, the appellant states that he was depressed

immediately after his removal was effected, and that, after a time, he went to his

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union to file an appeal of his removal. Petition for Review File, Tab 1. He states

that his appeal ended up being filed 2 days late. 2 Id.

¶4 Generally, an appeal must be filed no later than 30 days after the effective

date, if any, of the action being appealed, or 30 days after the date of receipt of

the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). As noted, the

appellant acknowledges that his appeal was not filed within the regulatory time

limit, admitting that his appeal was filed 2 days late. The record is consistent

with the appellant’s admission. The Board will dismiss an appeal not filed within

the time limit unless the appellant establishes good cause for the filing

delay. 5 C.F.R. § 1201.22(c). An appellant bears the burden of proof on the

timeliness issue. 5 C.F.R. § 1201.56(a)(2)(ii).

¶5 To establish good cause for the untimely filing of an appeal, 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 an appellant has shown good cause, the

Board will consider the length of the delay, the reasonableness of his 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).

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To have been timely filed, the appeal should have been filed by Monday, January 6,

2014. Saturday, January 4, 2014, was the 30th day after December 5, 2013, wh ich was

the effective date of the appellant’s removal. IAF, Tab 5 at 20 of 62. Because

January 4, 2014, was a Saturday, the deadline for filing the appeal was Monday,

January 6, 2014, the first workday after the filing deadline. See 5 C.F.R. § 1201.23 (if

the date that ordinarily would be the last day for filing an appeal falls on a Saturday,

Sunday, or federal holiday, the filing period will include the first workday after that

date).

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¶6 Here, because the appellant failed to respond to the administrative judge’s

order informing the appellant of what he must show to establish good cause for

his delay in filing and affording him the opportunity to make that showing, the

administrative judge correctly found based on the record before him that the

appellant untimely filed his appeal with no good cause shown for the delay. See

Hall v. Department of the Army, 78 M.S.P.R. 222, 225 (1998) (when a petition for

appeal is filed after the 30-day time limit for filing, an administrative judge

should inform the parties that timeliness is an issue so that the parties are

provided with a fair opportunity to respond to the timeliness issue); cf. Marasco

v. U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995) (the administrative judge

correctly determined that the appellant’s response to the timeliness show cause

order that addressed only the merits of the appeal was not relevant and failed to

establish good cause). At issue in this appeal is whether the appellant’s assertion

(advanced for the first time on petition for review) that his delay in filing his

appeal was caused by his depression meets the threshold requirement for issuance

of a notice consistent with Lacy v. Department of the Navy, 78 M.S.P.R. 434

(1998).

¶7 In Lacy, the Board restated the rule that it will find good cause for waiver

of its filing time limits where a party demonstrates that he suffered fro m an

illness that affected his ability to file on time. Lacy, 78 M.S.P.R. at 437. The

Board went on to affirm that to establish that an untimely filing was the result of

an illness, the party must: (1) identify the time period during which he suffered

from the illness; (2) submit medical evidence showing that he suffered from the

alleged illness during that time period; and (3) explain how the illness prevented

him from timely filing either his appeal or a request for an extension of time. Id.

¶8 The Board in Lacy described situations in which it would ask an appellant

for more information on why his appeal was not submitted by the filing deadline

or why a request for an extension of time was not made before the filing deadline.

Thus, a Lacy notice is intended to elicit information regarding the period before

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the filing deadline lapsed to see whether illness prevented the appellant from

meeting that deadline. See Brenner v. U.S. Postal Service, 80 M.S.P.R. 394, ¶¶ 4,

6-7 (1998) (evidence submitted in response to a Lacy notice had to establish that,

between the date of the initial decision and the deadline date for filing the

petition for review, the appellant was prevented from filing a petition for review

by reason of his medical condition), aff’d, 215 F.3d 1346 (Fed. Cir. 1999)

(Table).

¶9 As noted, the appellant’s union represented him in this appeal. The

administrative judge’s show cause order was sent to the appellant’s representative

as well as to the appellant. IAF, Tab 6. Neither the appellant nor his

representative responded to the order to argue that the appellant’s depression

caused his delay in seeking representation and timely filing the appeal of his

removal. To the extent the appellant is arguing that his failure to raise below the

issue that his depression caused his delay in filing is due in part to the fact that

his union representation was inadequate, we note only that the appellant was

represented by a union official at all times during the course of the proceedings

below and must be held responsible for any purported deficiencies related to that

representation. See Lee v. Department of the Navy, 43 M.S.P.R. 258, 261 (1990);

see also Holt v. U.S. Postal Service, 36 M.S.P.R. 240, 244 (1988) (the lack of

knowledge concerning Board procedures by the appellant’s union representative,

or his unavailability to assist the appellant in filing his appeal, does not constitute

good cause for the Board to waive its timeliness requirements); Sofio v. Internal

Revenue Service, 7 M.S.P.R. 667, 670 (1981) (the appellant is responsible for the

errors of his chosen representative).

¶10 In Smith v. Department of Veterans Affairs, 84 M.S.P.R. 655 (2000), the

Board qualified the rule that an appellant is responsible for the errors of his

representative if an appellant makes specific and credible assertions that medical

conditions prevented both him and his representative from filing an appeal on

time. Here, the appellant has made no such assertion. Smith thus can be readily

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distinguished from this case. Thus, the appellant is responsible for the failure of

his representative to respond to the show cause order in which he might have

advanced the argument that the delay in filing was caused by the appellant’s

depression. See Lee, 43 M.S.P.R. at 261. Under these circumstances, we find

that the appellant’s assertion raised for the first time on petition for review that

his depression caused his delay in filing his appeal does not meet the threshold

requirement for issuance of a notice consistent with Lacy.

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

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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.