The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY O. GEEHAN, DOCKET NUMBER
Appellant, PH-0752-14-0397-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: September 8, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chungsoo J. Lee, Feasterville Trevose, Pennsylvania, for the appellant.
Arlene R. Yang and Suzanne K. Roten, Esquire, San Diego, 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dismissed the appeal as withdrawn. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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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cause shown, 5 C.F.R. § 1201.114(e), (g), and the appellant’s request to reopen
her appeal is DENIED, 5 C.F.R. § 1201.118.
BACKGROUND
¶2 The appellant filed this removal appeal in November 2013. Initial Appeal
File (IAF), Tab 1. Her representative subsequently filed a written request to
withdraw the appeal. IAF, Tab 19. The representative also left a voicemail
message with the same request for the administrative judge, who then spoke with
the appellant’s representative in order to confirm the appellant’s intentions, after
which the administrative judge issued his initial decision effecting the appellant’s
clear, decisive, and unequivocal withdrawal of her appeal. IAF, Tab 21, Initial
Decision (ID). When neither party filed a petition for review by May 23, 2014,
the initial decision became the Board’s final decision in this appeal. ID at 2;
see 5 C.F.R. § 1201.113.
¶3 In March 2015, the appellant filed a second appeal challenging her removal.
Geehan v. Department of Agriculture, MSPB Docket No. PH-0752-15-0239-I-1,
Initial Appeal File (0239 IAF), Tab 1. In the acknowledgment order for that
second appeal, the administrative judge noted that the appellant’s second appeal
may be precluded by res judicata, and he ordered the parties to file evidence and
argument on the issue. 0239 IAF, Tab 2. The appellant subsequently filed the
instant petition for review in this action, her first appeal concerning her removal.
Petition for Review (PFR) File, Tab 1. The Clerk of the Board notified the
appellant that her petition for review was untimely filed and that the Board’s
regulations therefore require her to file a motion, requesting that the Board either
accept the petition as timely or waive the time limit for good cause, including a
statement signed under the penalty of perjury or an affidavit sworn before a
notary or similar authorized official. PFR File, Tab 2; see 5 C.F.R. § 1201.114.
The agency responds in opposition to the appellant’s petition for review. PFR
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File, Tab 3. The appellant filed the required timeliness motion and a reply to the
agency’s response. PFR File, Tabs 5, 7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 In her motion on the timeliness of her petition for review, the appellant
claimed that the administrative judge’s failure to issue a final decision in this
appeal severely prejudiced her because she was not informed of her appeal rights
to the U.S. Court of Appeals for the Federal Circuit. 2 PFR File, Tab 5 at 3. With
regard to the timeliness of her petition for review, the appellant argued that her
March 2015 discovery that the administrative judge had abused his discretion and
her April 2015 acquisition of vital evidence pertaining to the administrative
judge’s conduct in the April 16, 2014 teleconference that preceded her withdrawal
provided reason for the Board to either accept the petition as timely or to waive
the time limit for good cause. Id.; see PFR File, Tab 1 at 10.
¶5 The Board’s regulations require that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision or, if a party
shows that she received the initial decision more than 5 days after it was issued,
within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e).
The record shows that the appellant registered as an e-filer with the Board’s
electronic filing system (e-Appeal). IAF, Tabs 1, 12. Registration as an e-filer
constitutes consent to accept electronic service of documents issued by the
Board. 5 C.F.R. § 1201.14(e). The Board’s regulations further provide that Board
documents served on registered e-filers like the appellant are deemed received on
the date of the electronic submission. 5 C.F.R. § 1201.14(m)(2).
2
The appellant is mistaken on both counts. The initial decision explicitly informed the
appellant that it would become the Board’s final decision in this appeal if neither party
filed a petition for review by May 23, 2014, i.e., within 35 days of its issuance, and it
likewise informed the appellant of her further right to review of that initial decision by
the U.S. Court of Appeals for the Federal Circuit. ID at 2, 6; see 5 U.S.C.
§ 7703(b)(1)(A); see also 5 C.F.R. § 1201.113.
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¶6 The record reflects that the regional office transmitted the initial decision
via e-Appeal on April 18, 2014. IAF, Tab 22. Thus, the appellant is deemed to
have received the initial decision on that date. See 5 C.F.R. § 1201.14(e)(1),
(m)(2). As noted above and set forth in the initial decision, the deadline for filing
a petition for review of the initial decision was 35 days after its issuance, in this
case May 23, 2014. See 5 C.F.R. § 1201.114(e); see also ID at 2. The appellant
filed her petition for review on April 20, 2015, nearly 11 months after the filing
deadline. PFR File, Tab 1.
¶7 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114(g). 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. E.g., Gaetos
v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014); 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. Gaetos, 121 M.S.P.R.
201, ¶ 5; 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).
¶8 For the following reasons, we find that the appellant has failed to show that
she used due diligence or ordinary prudence and that she therefore has not
demonstrated good cause for her delay in filing. The appellant essentially blames
her untimely filing on her previous representatives. In an affidavit included with
her petition for review, she claims that her first representative misrepresented her
in a January 16, 2014 teleconference by suggesting that she was unable to
participate in the proceedings based on her medical condition, refusing to request
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accommodations that would allow her to participate in the proceedings, and
failing to reduce her response to the agency’s interrogatories to writing. PFR
File, Tab 1 at 15. She asserts that she terminated the representative for that
reason and argues that her post-traumatic stress disorder resurfaced and she fell
into deep depression as a result of that experience. Id.
¶9 After the administrative judge granted the agency’s motion to compel
discovery, the appellant hired a new representative, her second in this matter. Id.
The administrative judge then granted the appellant’s request for an extension of
time to respond to discovery, but the agency was still unsatisfied with the
appellant’s subsequent response and moved for the administrative judge to
sanction the appellant. Id.; see IAF, Tab 19. The appellant’s representative then
notified the administrative judge through a voicemail message and in writing that
the appellant wished to withdraw her appeal. IAF, Tabs 19-20. As noted above,
the administrative judge personally confirmed the appellant’s intentions with her
representative and dismissed the appeal in keeping with the appellant’s stated
wishes. ID at 2.
¶10 The Board has long held that an appellant is responsible for the errors of her
chosen representative. E.g., 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 as to whether his office filed the appeal. See
id. Nevertheless, the appellant therein diligently discovered his attorney’s
omission and corrected it promptly, such that his appeal was filed only 4 days
late. Id. By contrast, in this matter, the appellant avers that she discovered the
administrative judge’s alleged abuse of discretion around 10 months after he
dismissed the appeal as withdrawn, and she filed her petition for review nearly
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11 months after the initial decision became final. PFR File, Tab 1 at 15.
Although she complains about the acts of her representatives, there is nothing in
the record to indicate that the appellant monitored the performance of her
representatives to ensure their actions were consonant with her wishes and her
late discovery of the problems she cites herein indicate less than due diligence.
Additionally, although the appellant claims that she was overwhelmed by those
circumstances, which she argues exacerbated her medical problems, 3 her affidavit
instead focuses on the strategy behind her decision to withdraw, asserting that she
withdrew because she thought she would preserve some procedural rights and she
wanted to avoid being sanctioned for the reason that she thought it would make it
more difficult to restore her healthcare coverage. PFR File, Tab 1 at 17.
¶11 As for the appellant’s allegation that her current representative discovered
the administrative judge’s purported abuse of discretion in March 2015, “the
discovery of additional legal arguments after the time period for filing a petition
for review does not constitute good cause for waiver of the filing deadline.”
Nelson v. Federal Deposit Insurance Corporation, 83 F.3d 1375, 1376 (Fed. Cir.
1996) (quoting Nelson v. Federal Deposit Insurance Corporation, 68 M.S.P.R. 1,
3 (1995)). In any event, rulings on discovery issues are reviewed for abuse of
discretion and in order for the appellant to prevail she must not only establish that
the administrative judge abused his considerable discretion, but also prove that
such abuse caused substantial harm or prejudice to her rights which could have
affected the outcome of the case. Curtin v. Office of Personnel
Management, 846 F.2d 1373, 1378-79 (Fed. Cir. 1988) (citing Cornelius v.
Nutt, 472 U.S. 648, 657-59 (1985)). Our review of the record reveals no such
abuse of discretion on the part of the administrative judge, who simply granted
the agency’s motion to compel discovery after the appellant failed to respond.
3
The Clerk of the Board’s acknowledgment letter informed the appellant of the burden
she must meet to establish that her untimely filing was the result of an illness. PFR
File, Tab 2. Nevertheless, the appellant did not attempt to make that argument.
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IAF, Tab 10. Moreover, the appellant subsequently responded to the discovery
without lodging an objection to it. IAF, Tabs 13-17. The appellant's failure to
object in a timely manner to the administrative judge’s rulings precludes her from
raising this matter now on petition for review. See Tarpley v. U.S. Postal
Service, 37 M.S.P.R. 579, 581 (1988).
¶12 Finally, we decline to exercise our discretion to reopen this appeal
under 5 C.F.R. § 1201.118. The Board generally will not reopen a prior appeal to
cure the untimeliness of a petition for review. See Deville v. Government
Printing Office, 93 M.S.P.R. 187, ¶ 15 (2002). Furthermore, such authority must
be exercised within a reasonable amount of time, which is generally measured in
weeks, not years. Id., ¶ 16. In light of the length of time since the issuance of
the April 2014 initial decision, we find that the interests of finality outweigh any
countervailing consideration for reopening the instant appeal. See
Deville, 93 M.S.P.R. 187, ¶¶ 16-17.
¶13 The appellant’s petition for review is accordingly dismissed as untimely
filed without good cause shown. 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 appellant’s
removal.
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
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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.