The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KYUNG S. IM, DOCKET NUMBER
Appellant, DC-0752-15-0175-I-1
v.
FEDERAL DEPOSIT INSURANCE DATE: June 3, 2015
CORPORATION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Kyung S. Im, Fairfax, Virginia, pro se.
Scott David Cooper, Arlington, 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 his appeal as untimely filed without good cause shown for the delay.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2 As noted by the administrative judge, the appellant was removed from a
Financial Economist position by the agency, effective July 21, 2014. Initial
Appeal File (IAF), Tab 18, Initial Decision (ID) at 1-2. On November 19, 2014,
the appellant filed an appeal challenging the removal. IAF, Tab 1. Generally, an
appeal must be filed no later than 30 days after the effective date of the action
being appealed, or 30 days after the date of receipt of the agency’s decision,
whichever is later. See 5 C.F.R. § 1201.22(b)(1). Accordingly, as found by the
administrative judge, the appellant filed his appeal 3 months late. ID at 2.
¶3 The Board may waive its regulatory filing time limit for good cause shown.
5 C.F.R. § 1201.22(c). 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. Marcantel v. Department of
Energy, 121 M.S.P.R. 330, ¶ 10 (2014). 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
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limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his appeal. Id.
¶4 We have considered the appellant’s arguments on review, including the
pleading he filed on April 23, 2015, and find that he has not shown good cause
for failing to timely file his appeal. 2 As the administrative judge correctly found,
the agency’s decision letter provided the appellant with clear notice of his Board
appeal rights, including the deadline for filing an appeal. ID at 2; IAF, Tab 1
at 37-38. The appellant explained that he missed the filing deadline because of
his mistaken belief that the Board was a “bureau” inside the agency. Petition for
Review (PFR) File, Tab 1 at 13-15. The appellant argues that the Board’s name
contributed to this mistaken belief. Id. at 23-24. He believed there was no point
in appealing to any division inside the agency. Id. at 13-15. He also explained
that he did not take the termination letter seriously because it was one in a series
of “nonsense letters” from the agency and it contained mistakes. Id. at 18-19.
¶5 A lack of familiarity with the Board’s administrative practices does not
constitute good cause for waiver of the Board’s timeliness requirements. Mata v.
Office of Personnel Management, 53 M.S.P.R. 552, 554-55, aff’d, 983 F.2d 1088
(Fed. Cir. 1992). The Board has held that, where a decision clearly states the
instructions and deadline for filing, a party’s failure to follow the instructions
constitutes a failure to exercise due diligence and ordinary prudence. Pfeiffer v.
Department of the Navy, 80 M.S.P.R. 179, 183 (1998), aff’d, 230 F.3d 1375 (Fed.
Cir. 1999). The decision letter provided clear instructions on when, where, and
how to file an appeal. See PFR File, Tab 11 at 66. It also noted that the Board’s
regulations could be accessed via its website. Id. The appellant admits that he
2
On March 10, 2015, the appellant filed a motion requesting to submit a pleading
concerning the timeliness of his appeal that he believes originally was filed on
November 30, 2014, because it contained the most detailed explanations of the reasons
for his late filing. Petition for Review File, Tab 7. The appellant’s motion was
granted, see id., Tab 10, and we have considered the appellant’s November 30, 2014
filing on review.
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was able to find information concerning the Board’s appellate process via our
website when he “searched the courts in the DC area to file a complaint.” PFR
File, Tab 1 at 20. Even considering that the appellant is pro se, he failed to
exercise due diligence and ordinary prudence under the circumstances.
¶6 The appellant believes that the agency is “hacking” into his home computer
and subjecting him to surveillance. Id. at 6-10. To the extent that these
allegations could be considered a request for a protective order pursuant to
5 C.F.R. § 1201.55(d), the Board will not grant such an order based on mere
speculation. Leaton v. Department of the Interior, 65 M.S.P.R. 331, 341 (1994),
aff’d, 64 F.3d 678 (Fed. Cir. 1995) (Table). Although the appellant has filed
numerous exhibits purporting to support these allegations, e.g., PFR File,
Tab 11 at 13-19, 69-98, he is merely speculating that these exhibits evidence
“hacking” or surveillance by the agency, see, e.g., id. at 16-17 (the appellant has
provided evidence of a problem scanning a letter, but no evidence that the agency
is responsible for the problem). Based on our review of the record, we cannot
conclude that the appellant has been subjected to the type of harassment that
would warrant a protective order pursuant to 5 C.F.R. § 1201.55(d).
¶7 The appellant alleges that he was asked to complete an impossible
assignment. PFR File, Tab 1 at 10, 20. The appellant also has described his work
on the “Dodd-Frank Stress Test.” Id. at 11-13. We have not addressed these
arguments because they are not material in determining whether the appeal was
timely filed. The appellant has not described any circumstance beyond his
control that prevented him from timely filing his appeal. Any confusion he may
have had regarding the Board’s independence from the agency could have been
overcome by an exercise of ordinary prudence. Because the appellant has not
shown good reason for the delay in filing his appeal, the administrative judge
appropriately dismissed the appeal as untimely. See 5 C.F.R. § 1201.22(c).
5
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 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
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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.