The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHERRY SPOONER, DOCKET NUMBER
Appellant, DC-315H-14-0105-I-1
v.
DEPARTMENT OF JUSTICE, DATE: March 31, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Rani Rolston, Washington, D.C., for the appellant.
Jason Laeser, Esquire, Springfield, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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BACKGROUND
¶2 Effective October 21, 2012, the agency awarded the appellant a career
conditional appointment to the competitive service position of Import/Export
Specialist, subject to a 1-year initial probationary period. Initial Appeal File
(IAF), Tab 11 at 194. Effective October 17, 2013, the agency terminated the
appellant for preappointment reasons. Id. at 182-93. The appellant filed a Board
appeal and on January 31, 2014, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1, Tab 13, Initial
Decision (ID) at 1, 6. The initial decision notified the appellant of her further
review rights, including the deadline for filing a petition for review with the
Board—March 7, 2014. ID at 6-10.
¶3 On March 2, 2014, the appellant requested an extension to file her petition
for review until March 9, 2014. Petition for Review (PFR) File, Tab 1 at 4. The
appellant’s request was granted, and the Clerk of the Board informed her that the
filing deadline was extended to March 14, 2014. PFR File, Tab 2.
¶4 The appellant did not file her petition for review before that deadline.
Rather, she waited more than 9 months and filed her petition on December 20,
2014. PFR File, Tab 3. She explained that her petition for review was untimely
for several reasons: first, it was based on new and material evidence in the form
of a May 21, 2014 letter that she received from the Virginia Employment
Commission denying her claim for unemployment compensation. Id. at 3, 30-31.
Second, she appears to allege that she requested her “full investigative file” from
the Office of Personnel Management (OPM), which she did not receive until
December 2, 2014, and discovered at that time that “there was not a single
document” from her employing agency included in the report. Id. at 5. Third, the
appeal was untimely because the appellant lacked attorney representation during
the filing period. Id. at 3, 5. Fourth, the appellant was in very difficult personal
circumstances during this time, including the loss of her job and home, all of
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which she said took an emotional toll on her and caused her to feel fatigued,
unable to concentrate, depressed, sad, confused, and anxious. Id. at 5-6. The
appellant stated that her problems were compounded by her attention deficit
disorder—a diagnosis that she has had for 10 years. Id. at 6. She stated that she
could provide medical records upon request. Id. The agency has filed a response
to the petition for review, opposing it on both timeliness and substantive grounds.
PFR File, Tab 4.
¶5 On December 29, 2014, the Clerk of the Board issued an acknowledgement
letter, reminding the appellant that her petition for review was untimely filed and
informing her that she must establish good cause for the untimely filing no later
than January 13, 2015. PFR File, Tab 4 at 1-2. To assist the appellant, the Clerk
of the Board attached a “Motion to Accept Filing as Timely or Waive Time
Limit” form. Id. at 2, 7-8. The appellant did not respond to the acknowledgment
letter.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 To determine whether an appellant has shown good cause for an untimely
filing, 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). We have considered
the timeliness arguments that the appellant submitted along with her petition for
review, but we find that they do not provide a sufficient basis to waive the filing
deadline. PFR File, Tab 3 at 4-6.
¶7 In this case, the appellant was proceeding pro se when she filed her petition
for review, but we note that as late as March 7, 2014 (the original petition for
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review deadline), she was still in discussions with the attorney who represented
her below. PFR File, Tab 3 at 4. In fact, it was the appellant’s attorney who filed
the March 2, 2014 motion for an extension of time. PFR File, Tab 1 at 5. We
also find that the filing delay of 9 months was significant. See Parsons v. Social
Security Administration, 89 M.S.P.R. 478, ¶ 11 (2001).
¶8 In addition, the appellant has not established that she acted with due
diligence in filing her petition for review or that situations beyond her control
prevented her from timely filing. Assuming without finding that the May 21,
2014 letter from the Virginia Employment Commission contained new and
material evidence, the appellant presumably received this letter on May 26, 2014,
see Cabarloc v. Department of Veterans Affairs, 110 M.S.P.R. 695, ¶ 7 (2009)
(documents placed in the mail are presumed to be received in 5 days), yet she
waited an additional 6 months to file her petition, see Blaske v. Department of the
Navy, 76 M.S.P.R. 164, 169-70 (1997) (evidence submitted to show good cause
for an untimely filing must address the entire period of the delay), aff’d,
168 F.3d. 1322 (Fed. Cir. 1998) (Table). Likewise, although the appellant
received documents from OPM only 18 days before she filed her petition for
review, PFR File, Tab 3 at 5, she has not explained why she was not able to
obtain them any earlier. Nor has the appellant explained why she believes that
the information she received from OPM would be material to the outcome of the
appeal. See Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10
(2009). Regarding the appellant’s pro se status, the Board has found that lack of
representation generally does not constitute good cause for a filing delay. See
Stewart v. Department of the Navy, 93 M.S.P.R. 147, ¶ 5 (2002); see also Barber
v. Department of Agriculture, 63 M.S.P.R. 32, 34-35 (1994). Finally, regarding
the appellant’s various claimed mental health conditions, the Clerk of the Board
informed the appellant that to establish that an untimely filing was the result of an
illness, she must: (1) identify the time period during which she suffered from the
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illness; (2) submit medical evidence showing that she suffered from the alleged
illness during that time period; and (3) explain how the illness prevented her from
timely filing her appeal or a request for an extension of time. IAF, Tab 5 at 7 n.1;
see Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). We find that
the appellant’s listing of various undocumented mental health conditions does not
meet these standards. PFR File, Tab 3 at 5-6.
¶9 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 jurisdiction.
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
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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.