The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN J. MORTEZAI, DOCKET NUMBER
Appellant, SF-0752-14-0296-I-1
v.
DEPARTMENT OF DEFENSE, DATE: February 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Kevin J. Mortezai, Northbrook, Illinois, pro se.
John A. Greenlee, Esquire, Fort Belvoir, Virginia, 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 his appeal as untimely filed by more than 6 months. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
interpretation of statute or regulation 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).
BACKGROUND
¶2 The appellant was employed in the position of Auditor with the Defense
Contract Audit Agency (DCAA). Initial Appeal File (IAF), Tab 18 at 15-24. On
April 3, 2013, the agency issued a notice of proposed removal for three charges
with numerous specifications. Id. at 32-52. After reviewing the appellant’s
written and verbal responses and considering the evidence, the deciding official
found that the charges were fully supported and issued a removal decision dated
June 13, 2013. Id. at 26-28; see IAF, Tab 43 at 4-5. The notice informed the
appellant that he had the right to appeal the removal action to the Board and of
the 30-day time limit for filing an appeal. IAF, Tab 18 at 27.
¶3 The appellant filed an appeal of the removal action on January 30, 2014.
IAF, Tab 1. The administrative judge issued an order on timeliness, notifying the
appellant that there was a question whether the appeal was filed within the time
limit required by the Board’s regulations and instructing the appellant to file
argument and evidence showing that his appeal was timely filed or that he had
good cause for the delay in filing. IAF, Tab 4. The appellant responded with a
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summary outlining a variety of factors during the relevant time period, including
the agency’s failure to provide his Standard Form (SF) 50, financial difficulties,
his partner’s and his own medical concerns, his unemployment compensation
application, and seeking assistance through an agency hotline and filing an
informal equal employment opportunity (EEO) complaint. IAF, Tab 14 at 3.
¶4 The administrative judge dismissed the appeal as untimely filed without a
showing of good cause to waive the time limit. IAF, Tab 72, Initial Decision (ID)
at 5-8. The administrative judge found unpersuasive the appellant’s argument
that he filed his appeal after the time limit had elapsed because he was waiting to
receive his SF-50, as the form is not required for filing a Board appeal. ID at
3, 7. The initial decision discussed the appellant’s pro se status, the failure of the
agency’s removal decision to notify him of the consequences of filing an untimely
appeal, and the appellant’s financial and medical difficulties during the relevant
time period, but the administrative judge found that the appellant failed to show
by preponderant evidence that there were circumstances beyond his control
preventing him from complying with the time limit. ID at 6-8. The
administrative judge noted that the appellant offered no evidence or argument
concerning his further delay in filing his appeal after being awarded
unemployment benefits in October 2013. ID at 8. Finally, the initial decision
denied the appellant’s motion to reinstate his health insurance coverage, as such
relief is beyond the Board’s jurisdiction. ID at 3 n.2; see IAF, Tabs 6, 7, 13.
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal was untimely filed without good cause.
¶5 The appellant argues that the administrative judge “completely dismissed”
his medical allegations in finding a lack of good cause for his delay in filing his
appeal. Petition for Review (PFR) File, Tab 1 at 7-13. The petition largely
repeats the appellant’s arguments below, including a chronological narrative
outlining his health difficulties predating his removal. Id. at 7-13; see IAF,
4
Tab 14 at 3, Tab 63 at 4-7. Regarding the period of time between his June 2013
removal and January 2014 filing, the appellant highlights his informal EEO
activity, attempts to obtain his SF-50 from the agency, and unemployment
compensation claim. PFR File, Tab 1 at 11-12. The agency responds that,
despite the appellant’s alleged inability to care for himself during the relevant
period, the petition for review acknowledges “repeated instances of his being able
to attend to other important business but not to pursue his Board appeal rights.”
PFR File, Tab 3 at 4. The appellant has filed a reply, which, in part, disputes the
agency’s characterization. PFR File, Tab 4.
¶6 A removal appeal must be filed no later than 30 days after the effective date
of the challenged agency action, or 30 days after the date of the appellant’s
receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1).
The appellant bears the burden to prove by preponderant evidence that his appeal
was timely filed. 5 C.F.R. § 1201.56(a)(2)(ii). Although the appellant argues
that the administrative judge failed to account for the time it took for him to
receive the June 13, 2013 removal decision via U.S. mail, he makes no argument
of any lengthy delay in receiving the decision or that he filed his appeal within 30
days of receipt. PFR File, Tab 1 at 17; see ID at 5. Even giving the appellant an
additional 5 days for mailing, see 5 C.F.R. § 1201.23, his appeal would have been
due no later than July 18, 2013, and was still untimely by more than 6 months
when he filed it on January 30, 2014.
¶7 The Board may waive its regulatory filing time limit for good cause shown
if the appellant demonstrates that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. 5 C.F.R. § 1201.22(c); see Alonzo
v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). In determining
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
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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).
¶8 We find that the appellant’s arguments on review constitute mere
disagreement with the administrative judge’s explained findings on the issue of
timeliness of the appeal, which are supported by the record evidence. The
appellant makes no argument contesting the administrative judge’s conclusion
that the delay of more than 6 months was a “significant” delay. ID at 7; PFR File,
Tab 1 at 5-19. The administrative judge considered the failure of the removal
decision to meet all notice requirements of 5 C.F.R. § 1201.21, as it did not
inform the appellant that an untimely appeal would be dismissed unless a good
reason for the delay was shown, but noted that incomplete notice is not a
dispositive factor in the Board’s determination of whether good cause exists for
waiving the time limit. ID at 5-6; see Mauldin v. U.S. Postal
Service, 115 M.S.P.R. 513, ¶¶ 11-14 (2011). The administrative judge found that
the removal decision explicitly notified the appellant of the 30-day time limit and
provided contact information should he have questions regarding the filing of an
appeal with the Board. ID at 7. In contrast to the appellant’s assertion on review,
the administrative judge specifically considered and addressed the appellant’s
arguments concerning his medical history and financial constraints. ID at 7-8.
¶9 The record evidence does not support a finding that medical illness during
the relevant time period prevented the appellant from timely filing his appeal. To
establish that an untimely filing was the result of an illness, the party must
identify the time period during which he suffered from the illness, submit medical
or other corroborating evidence showing that he suffered from the alleged illness
during that time period, and explain how the illness prevented him from timely
filing his appeal or a request for an extension of time. Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 & n.* (1998). The administrative judge correctly
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found the appellant’s report of undergoing two procedures in August 2013
insufficient to show incapacitation, as the appellant had not offered any argument
or evidence that the procedures, generally performed on an out-patient basis, led
to complications or an abnormal recovery period. ID at 8; see IAF, Tab 14 at 3.
¶10 We have considered the appellant’s argument and evidence regarding his
health, but find that he has failed to submit adequate medical evidence or explain
how his illness prevented him from filing a timely appeal. 2 The appellant
responded to the administrative judge’s order on timeliness with vague
descriptions of his symptoms and alleged severe distress related to his partner’s
medical condition. IAF, Tab 14 at 3. He later filed a medical opinion from a
treating physician dated May 16, 2014, more than 3 months after he filed his
appeal. IAF, Tab 53 at 5; see IAF, Tab 1. The physician reported two distinct
periods of treating the appellant outside of the relevant time period, from August
2007 to October 2009, and February 2014 through the date of the medical opinion
on May 16, 2014. The opinion outlined the appellant’s diagnoses and historic
medications and offered a general description of symptoms commonly associated
with the appellant’s diagnosed conditions. IAF, Tab 53 at 5-6. The letter offered
no specific evidence of the appellant’s ability to file his appeal during the
relevant time period or beyond. Id. at 6. As noted in the initial decision, the
appellant demonstrated capacity during the relevant time period in obtaining
unemployment benefits and initiating an EEO complaint after seeking assistance
through the agency’s hotline. ID at 8. Thus, we find that the appellant has not
shown error in the administrative judge’s conclusion that he failed to establish by
preponderant evidence that circumstances beyond his control affected his ability
2
We deny the appellant’s request on review to seal the record in light of his medical
disclosures. PFR File, Tab 1 at 23. The appellant has failed to provide a compelling
reason to warrant the Board sealing the record at this time. See Social Security
Administration v. Doyle, 45 M.S.P.R. 258, 262 (1990).
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to comply with the time limit and constituted good cause for his delay in filing.
See ID at 8.
The administrative judge committed no procedural error that adversely affected
the appellant’s substantive rights.
¶11 On review, the appellant argues that the administrative judge committed
procedural error and “failed to protect [his] right to due process” by providing the
agency with extensions for the preliminary conference, accepting an incomplete
agency response file, and “deleting” his pleading requesting discovery evidence
from the agency. PFR File, Tab 1 at 13. The appellant also alleges that the
administrative judge failed to fully discuss the complete discovery and
pre-hearing process and improperly advised the agency’s representative on the
consequences of failure to meet the requirements set out in the Board’s
regulations. See id. at 14-15.
¶12 We find that appellant’s allegations indicate no procedural error. The
record shows that the administrative judge ordered the agency to comply with the
Board’s regulations and informed the agency of potential sanctions should it fail
to comply. See IAF, Tabs 5, 9, 16, 64. The administrative judge gave the
appellant proper notice that the Board does not participate in the discovery
process until a motion to compel discovery is filed. See IAF, Tab 24; see
also 5 C.F.R. §§ 1201.71, 1201.73(c). In the order summarizing the prehearing
conference, the administrative judge notified the appellant that his indication
“that production of the requested documents was not necessary” was construed as
a withdrawal of the motion to compel, and the appellant has made no arguments
that this was not his intention. IAF, Tab 64 at 4. In advising the agency that
failure to submit all documents specified in MSPB Schedule 752 could lead to
potential sanctions, the administrative judge performed his proper role in
developing the record and preparing the appeal for the requested hearing. See id.
at 1-2. An administrative judge may make statements to the parties regarding his
honest appraisal of the likelihood of success of the appeal, and the record
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contains no prehearing statements regarding the merits of the removal appeal that
the appellant could claim indicate a prejudgment or bias. See Cranfield v.
Tennessee Valley Authority, 44 M.S.P.R. 384, 387-88 (1990).
¶13 The appellant also alleges that the administrative judge failed to protect him
from the agency’s alleged retaliatory action in cancelling his health insurance
coverage after he filed his Board appeal. PFR File, Tab 1 at 5-7. The
administrative judge denied the appellant’s motion to reinstate his health
insurance coverage, correctly informing the appellant that such relief is beyond
the Board’s jurisdiction. ID at 3 n.2; see IAF, Tabs 6, 7, 13. The Board’s
jurisdiction is not plenary; it is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board, 759 F.2d 9, 10 (Fed. Cir. 1985). The Board has not been
granted original or appellate jurisdiction over an agency’s revocation or alteration
of health benefits. See 5 C.F.R. §§ 1201.2-.3. The record evidence presents no
basis for the Board to issue a protective order pursuant to 5 U.S.C.
§ 1204(e)(1)(B)(i) protecting the appellant from alleged harassment concerning
his health coverage. The purpose of the Board’s authority to grant a protective
order under this section is to aid the fact-finding process during a Board
proceeding. Garst v. Department of the Army, 60 M.S.P.R. 514, 520 (1994).
Mere speculation that the agency took an action improperly in reprisal for filing a
Board appeal does not establish harassment warranting a protective order. See
Leaton v. Department of the Interior, 65 M.S.P.R. 331, 341 (1994), aff’d, 64 F.3d
678 (Fed. Cir. 1995) (Table). The appellant submitted no evidence to support his
allegations that the agency cancelled his health insurance in reprisal for filing his
Board appeal. See IAF, Tabs 6, 7, 13; PFR File, Tab 1 at 5-7. In contrast, the
letter sent to the appellant by Blue Cross Blue Shield indicating that he was no
longer enrolled in a health plan predates his filing of the initial appeal by 9 days.
IAF, Tab 2 at 4-5. Thus, we find no error in the administrative judge’s denial of
the appellant’s motion.
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¶14 Finally, the alleged procedural errors do not affect the analysis of whether
the appellant had good cause for his delay in filing his appeal. Thus, even
assuming that the administrative judge made the alleged errors, such actions
would have no effect on the outcome of this case, and they would provide no
basis for disturbing the initial decision. See 5 C.F.R. § 1201.115(c); see also
Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981). 3
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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
3
After the close of the record on review, the appellant filed two motions for leave, both
of which are denied. See 5 C.F.R. 1201.114(a)(5), (k); PFR File, Tabs 6, 9.
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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
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.