The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANEL M. WHITBECK, DOCKET NUMBER
Appellant, SF-0752-11-0408-I-1
v.
DEPARTMENT OF HOMELAND DATE: June 24, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Janel M. Whitbeck, Sumas, Washington, pro se.
Alina McLauchlan, Seattle, Washington, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On March 9, 2011, the appellant filed an appeal of the agency’s decision to
terminate her internship with the U.S. Customs and Border Protection. Initial
Appeal File (IAF), Tab 1. She was in the excepted service under the authority of
5 C.F.R. § 213.3202(o), pursuant to the Federal Career Intern Program when her
internship was terminated. Id. Thus, to establish Board jurisdiction over her
appeal, the appellant was required to show that she was: (a) a preference-eligible
employee who has completed 1 year of current continuous service in the same or
a similar position; or (b) an employee who is not serving a probationary or trial
period under an initial appointment pending conversion to the competitive
service, or who has completed 2 years of current, continuous service in the same
or similar positions under other than a temporary appointment limited to 2 years
or less. See 5 U.S.C. § 7511(a)(1)(B), (C). The administrative judge found that
the appellant failed to submit any evidence that shows she was an “employee”
under 5 U.S.C. § 7511(a)(1)(B) or (C), and that the agency had terminated her
internship prior to converting her to the competitive service. IAF, Tab 10, Initial
Decision (ID) at 3-4. Accordingly, the administrative judge dismissed the appeal
for lack of jurisdiction. ID at 4. The initial decision also informed the parties
that it would become a final decision unless either party filed a petition for
review by May 20, 2011. ID at 5.
¶3 The appellant, however, did not file her petition for review until
January 16, 2015. Petition for Review (PFR) File, Tab 1. On review, she asserts
that her petition for review was untimely filed because of illness and
misrepresentation by her attorney. Id. The Office of the Clerk of the Board
informed the appellant that her petition was untimely filed and directed her to
submit a sworn statement showing good cause for the untimely filing. PFR File,
Tab 2. The appellant did not respond. The agency has responded to the Clerk of
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the Board’s order, arguing that the petition should be dismissed as untimely filed
and, in the alternative, dismissed for lack of jurisdiction. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after it was issued, within 30 days after
she received it. 5 C.F.R. § 1201.114(d). The Board will waive this time limit
only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.12,
1201.114(f). To establish good cause for the untimely filing of an appeal, a party
must show that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Alonzo v. Department of the Air Force,
4 M.S.P.R. 180, 184 (1980). To determine if an appellant has shown good cause,
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).
¶5 Here, we find that the appellant has failed to show that she exercised due
diligence or ordinary prudence to justify waiving the filing deadline.
Specifically, she filed her petition for review on January 16, 2015, 3 years and 8
months after the May 20, 2011 filing deadline, and she asserts that her filing was
untimely because she was diagnosed in November 2010 with endometriosis which
causes her nausea, migraines, backaches, and fatigue. To establish that an
untimely filing was the result of an illness, the party must: (1) identify the time
period during which she suffered from the illness; (2) submit medical evidence
showing that she suffered from the alleged illness during that time period; and
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(3) explain how the illness prevented her from timely filing her petition for
review or a request for an extension of time. Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998). Although the appellant asserts that her medical
condition prevented her from timely filing her petition for review, she failed to
submit any medical evidence showing that she suffered from the alleged illness
during the period of delay. She also did not explain how the illness prevented her
from timely filing her petition for review or a request for an extension of time.
¶6 The appellant also asserts that her petition was untimely filed because her
former attorney did not provide her adequate representation during the appeal
process below and he failed to tell her that she could contest the initial decision.
PFR File, Tab 1. However, the Board has long held that an appellant is
responsible for the errors of her chosen representative. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981). While a limited exception exists where an
appellant has proven that her diligent efforts to prosecute her appeal were
thwarted by her representative’s deception and negligence, see Dunbar v.
Department of the Navy, 43 M.S.P.R. 640, 643-45 (1990), that exception is not
applicable in this case. In Dunbar, the Board found that the appellant diligently
monitored the progress of his appeal and that he was misled by his attorney.
Here, the appellant asserts that her former attorney did not advise her that she
could file a petition for review. Nevertheless, the record reflects that she
received a copy of the initial decision at her home address, which clearly notified
her of her right to request Board review, but she made no attempt to file a petition
for review until almost 4 years later. ID at 5. Thus, we find that, because the
appellant has failed to show that she diligently pursued her petition for review
before the Board, Dunbar does not apply.
¶7 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
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of the petition for review. The initial decision remains the final decision of the
Board regarding the appeal of the termination of her internship.
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 your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
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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.