The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWAYNE THORNTON, DOCKET NUMBER
Appellant, AT-0752-09-0224-I-1
v.
DEPARTMENT OF VETERANS DATE: February 26, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Willie Abston, Esquire, Flowood, Mississippi, for the appellant.
Johnston Walker, Esquire, Jackson, Mississippi, 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 removal appeal as settled. For the reasons set forth below, the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 The agency removed the appellant after he was found unfit for duty based
on a psychological examination. Initial Appeal File (IAF), Tab 7 at 40, 42-43,
56, 58-60, 62-63. The appellant filed this appeal challenging this action. IAF,
Tab 1 at 2-4. The administrative judge held a hearing on March 12, 2009, at
which time the parties entered into an oral settlement agreement on the record.
Hearing Compact Disc. Per the terms of the settlement agreement, if the
appellant’s disability retirement application was approved by the Office of
Personnel Management (OPM), the appellant would withdraw his appeal with
prejudice. Id. In his March 13, 2009 initial decision, the administrative judge
found that the Board had jurisdiction and that the settlement agreement was valid,
and thus he dismissed the appeal as settled. IAF, Tab 16, Initial Decision (ID) at
1-2.
¶3 OPM denied the appellant’s disability retirement application on October 7,
2009. Thornton v. Office of Personnel Management, MSPB Docket No.
AT-844E-10-0156-I-1 (0156 appeal), Initial Decision at 1 (Feb. 19, 2010). The
appellant filed an appeal of this denial and the administrative judge reversed
OPM’s decision. Id. at 1, 5-6. On December 16, 2012, the appellant filed a
petition for review. Id., Petition for Review (PFR) File, Tab 1 at 1-2. The Board
issued a final order, dated September 26, 2013, dismissing the petition for review
as untimely filed without good cause. 2 Thornton v. Office of Personnel
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In the final order for the 0156 appeal, the Board found that the appellant’s petition for
review was untimely filed regarding the in itial decision for his OPM reconsideration
decision claim. Thornton v. Office of Personnel Management, MSPB Docket No.
AT-844E-10-0156-I-1, Final Order at 2 (Sept. 26, 2013). The Board noted in the final
order that the appellant challenged his removal in his petition for review but that he had
not filed a petition for review of the initial decision regarding his removal appeal. I d.
3
Management, MSPB Docket No. AT-844E-10-0156-I-1, Final Order at 1-3
(Sept. 26, 2013).
¶4 In the instant appeal, the Board received the appellant’s petition for review
on September 30, 2014. PFR File, Tab 2 at 1. However, the appellant alleges
that he mailed his petition for review on June 6, 2014. PFR File, Tab 1 at 1. The
agency has responded to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is untimely and the appellant has failed to show good
cause to waive the filing deadline .
¶5 The appellant challenges the underlying removal that led to the settlement
agreement. PFR File, Tab 1 at 2-11. Specifically, he argues that he was
misdiagnosed with paranoid personality disorder and, as a result of the
misdiagnosis, he was improperly removed as a police officer. Id. at 10-11; see
IAF, Tab 7 at 36, 42 (reflecting the basis for the appellant’s removal). The
appellant submitted a February 9, 2012neuropsychological evaluation, which
stated that it “failed to find any evidence of any personality disorder.” PFR File,
Tab 1 at 14-15.
¶6 An attack on the validity of a settlement agreement must be made in the
form of a petition for review of the initial decision dismissing the case as settled.
Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 8 (2009). A
petition for review must be filed within 35 days after the issuance of the initial
decision or, if the petitioner shows that the initial decision was received more
than 5 days after the date of issuance, within 30 days after the date the petitioner
received the initial decision. 5 C.F.R. § 1201.114(e). The Board presumes that
mail delivery may reasonably be expected to take 5 days. Lynch v. Office of
at 3. Therefore, the Board informed the appellant that he had the right to file a petition
for review. Id. However, he was advised that any such filing must comport with the
Board’s timeliness regulation concerning petitions for review. I d.
4
Personnel Management, 79 M.S.P.R. 437, ¶ 8 (1998). Nothing in the record
suggests that the appellant received the March 13, 2009 initial decision more than
5 days after it was issued.
¶7 Even if we were to give the appellant the benefit of the doubt and find that
the date of his petition for review was June 6, 2014, it would still be untimely.
Based on the date of the initial decision, the petition for review would be over 5
years late. See PFR File, Tab 1 at 1; ID at 1-3.
¶8 The Clerk of the Board informed the appellant that his petition for review
appeared to be untimely and afforded him an opportunity to show good cause for
the apparently untimely filing. PFR File, Tab 2 at 1-2. However, the appellant
has not responded to the Clerk’s notice.
¶9 The Board will waive its filing deadline upon a showing of good cause.
Ross v. Department of Justice, 73 M.S.P.R. 211, 213, aff’d, 129 F.3d 134 (Fed.
Cir. 1997) (Table). 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. Id. Further, the Board has held that the discovery of
new evidence may constitute good cause for waiver of the Board’s filing deadline
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. Chambers v. Department of the Army, 66 M.S.P.R. 122, 123 (1995).
¶10 On petition for review, the appellant alleges that the evidence of the
February 9, 2012 neuropsychological examination was not “available until well
after the hearing.” PFR File, Tab 1 at 3. However, he offers no explanation for
why he filed the petition for review over 2 years after the date of the evaluation.
See PFR File, Tab 1 at 1, 10, 12. Thus, he has not shown good cause for his
untimely filing. See Mitchell v. Broadcasting Board of Governors, 107 M.S.P.R.
8, ¶ 8 (2007) (the appellant did not establish good cause for her untimely petition
for review because she did not offer any explanation for her untimeliness);
5
McVicker v. Social Security Administration, 77 M.S.P.R. 324, 328 (1997)
(because the appellant did not timely respond to the Clerk’s notice and did not
explain why he waited at least 2 months to file his petition for review after he
became aware of the alleged new evidence, the Board dismissed the appellant’s
petition for review).
¶11 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 removal 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
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.
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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.