The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENATO D. KNOX, DOCKET NUMBER
Appellant, SF-0353-14-0575-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 11, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
James L. Wright, Sacramento, California, for the appellant.
Deborah C. Winslow, San Francisco, California, 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 his denial of restoration appeal as untimely filed and denied his request
to reopen a prior appeal. 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 or 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Upon our review of the initial decision and the procedural
history of both this appeal and a prior appeal initiated by the appellant, however,
we find that adjudicatory efficiency is the appropriate basis for dismissing the
instant appeal. Accordingly, we VACATE the administrative judge’s dismissal of
the initial appeal as untimely filed without good cause shown, and DISMISS the
instant appeal on the basis of adjudicatory efficiency. Additionally, we VACATE
the administrative judge’s denial of the appellant’s request to reopen his prior
appeal under 5 C.F.R. § 1201.118, and we FORWARD the appellant’s request to
reopen his prior appeal to the Clerk of the Board for docketing as an untimely
petition for review of the initial decision in MSPB Docket No. SF-0353-10-0054-
I-1.
¶2 The appellant filed the instant initial appeal on May 19, 2014, referencing
an alleged denial of restoration beginning in September 2009. Initial Appeal File
(IAF), Tab 1. In response to the administrative judge’s jurisdictional order, see
IAF, Tab 2, the appellant explained that he had filed a prior restoration appeal,
which was denied prior to the issuance of the Board’s decision in Latham v. U.S.
Postal Service, 117 M.S.P.R. 400 (2012), and that under Latham, his prior appeal
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should be reopened because of a dispositive change in the law. 2 See IAF, Tab 6
at 2, 6. The agency subsequently filed a motion to dismiss raising both
jurisdictional and timeliness arguments as to the appellant’s May 2014 filing, see
IAF, Tabs 7, 13, and the appellant filed a response again arguing that his prior
appeal should be reopened because of a change in the law governing restoration
appeals, see IAF, Tab 29.
¶3 The administrative judge issued an initial decision dismissing the
appellant’s appeal as untimely filed without good cause shown and denying the
appellant’s request to reopen his prior appeal. IAF, Tab 31, Initial Decision (ID).
The administrative judge found that the appellant’s appeal was filed over 2 years
after the Board issued its decision in Latham without good cause shown and that,
despite the appellant’s claim that he also had discovered new evidence pertaining
to his restoration claims, the appellant failed to demonstrate good cause for his
untimely appeal. ID at 2-3. The administrative judge similarly denied the
appellant’s request to reopen his prior appeal based on the length of time between
the issuance of Latham and his request to reopen. ID at 3.
¶4 The appellant has filed a petition for review arguing that he has presented
valid grounds for granting his request to reopen his prior appeal. Petition for
Review (PFR) File, Tab 1. On review, the appellant asserts that the merits of his
prior appeal would be decided differently under Latham and that he has presented
new evidence not previously available justifying the reopening of his prior
appeal. See id. at 2-7. The agency has filed a response in opposition to the
petition for review. PFR File, Tab 3.
¶5 Upon our review of the procedural history of this appeal, along with the
appellant’s prior appeal in MSPB Docket No. SF-0353-10-0054-I-1, we believe
that the instant appeal raises sufficiently similar issues to the appellant’s prior
2
The administrative judge’s initial decision in the prior appeal became the Board’s
final decision when neither party filed a petition for review. See MSPB Docket No.
SF-0353-10-0054-I-1, Tab 11, Initial Decision (0054 ID); see also 5 C.F.R. § 1201.113.
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appeal such that the instant appeal should be dismissed under the doctrine of
adjudicatory efficiency. See Bean v. U.S. Postal Service, 120 M.S.P.R. 447, ¶ 5
(2013). Under the doctrine of adjudicatory efficiency, it is generally appropriate
to dismiss a subsequent appeal which raises claims raised in an earlier appeal
when an identity of issues exists in the appeals and the controlling issues in the
subsequent appeal will be determined in a prior appeal. Id. (citing Kinler v.
General Services Administration, 44 M.S.P.R. 262, 263 (1990)). The Board has
traditionally applied the doctrine of adjudicatory efficiency in cases where an
appellant files a second appeal after an initial decision in a prior appeal has been
issued, but before the full Board has acted on a petition for review of that
decision. See id.
¶6 Based upon the chronology of the appellant’s filings, and the issues he has
raised therein, we find that he commenced the instant appeal in May 2014 in an
effort to reopen his prior appeal which had become final when the time to file a
petition for review of that decision expired. As explained below, we find that the
appellant’s request to reopen his prior appeal should have been forwarded to the
full Board for consideration in the first instance as an untimely petition for
review of the prior initial decision. See Trachtenberg v. Department of
Defense, 104 M.S.P.R. 640, ¶ 7 (2007). Because we find that the appellant’s May
2014 filing should have been treated as a request to reopen his prior appeal and
forwarded to the full Board for consideration, we VACATE the initial decision
dismissing the appeal as an untimely filed initial appeal, and we DISMISS the
appellant’s May 2014 initial appeal under the doctrine of adjudicatory efficiency.
See Bean, 120 M.S.P.R. 447, ¶ 6. Additionally, because an administrative judge
cannot adjudicate a party’s request to reopen a final Board order under 5 C.F.R.
§ 1201.118, we VACATE the administrative judge’s denial of the appellant’s
request to reopen his prior appeal. See Lincoln v. U.S. Postal
Service, 113 M.S.P.R. 486, ¶ 10 n.2 (2010) (an administrative judge does not
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have the authority to reopen an appeal in which a final decision has been issued
under 5 C.F.R. § 1201.118).
¶7 The Board has previously found that a request to reopen an initial decision
that became final when neither party petitioned for review should be treated as an
untimely filed petition for review of that decision. See
Trachtenberg, 106 M.S.P.R. 640, ¶ 7. Here, the administrative judge issued an
initial decision denying the appellant’s restoration appeal in March 2010, which
became final when neither party filed a petition for review. See 0054 ID.
Because the appellant has expressly requested to reopen his prior appeal under 5
C.F.R. § 1201.118, see IAF, Tabs 6, 29, and because the administrative judge
could not rule upon his request, we find it appropriate to FORWARD the
appellant’s request to reopen his prior appeal to the Clerk of the Board to be
docketed as an untimely petition for review of the initial decision in MSPB
Docket No. SF-0353-10-0054-I-1. Upon docketing, the Clerk of the Board shall
provide the appellant an opportunity to demonstrate good cause for his untimely
petition for review under 5 C.F.R. § 1201.114(g), and the Clerk shall provide the
agency an opportunity to respond.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
This constitutes the Board’s final decision in MSPB Docket No. SF-0353-
14-0575-I-1. 5 C.F.R. § 1201.113. You have the right to request the United
States Court of Appeals for the Federal Circuit to review this final decision. 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.
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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
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 an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. 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.