The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER JAMES WHITE, JR., DOCKET NUMBER
Appellant, DC-0752-14-0358-I-1
v.
DEPARTMENT OF HOUSING AND DATE: September 14, 2015
URBAN DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Roger James White, Jr., Daytona Beach, Florida, pro se.
Eugenia M. Jackson, Washington, D.C., 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 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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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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BACKGROUND
¶2 The appellant filed this appeal with the Board alleging that the agency
improperly proposed his indefinite suspension and removal from the position of
Program Analyst, GS-0343-12, with the agency’s Office of Fair Housing and
Equal Opportunity. Initial Appeal File (IAF), Tab 1. The agency filed a motion
to dismiss the appeal for lack of Board jurisdiction, arguing that the Board lacked
jurisdiction because the appellant had not shown that an adverse action had been
taken against him. IAF, Tab 4. The administrative judge ordered the appellant to
file evidence and argument to demonstrate that the appeal was within the Board’s
jurisdiction. IAF, Tab 6. The appellant failed to respond. The administrative
judge thus dismissed the appeal for lack of Board jurisdiction. IAF, Tab 7, Initial
Decision (ID).
¶3 The initial decision was issued on March 7, 2014. ID at 7. The finality
date was April 11, 2014. ID at 3. The appellant filed a petition for review on
May 29, 2015. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s regulations require that a petition for review be filed within
35 days after the date of the issuance of the initial decision or, if a party shows
that he 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
Board will excuse the untimely filing of a petition for review only upon a
showing of good cause. 5 C.F.R. § 1201.114(g). An untimely filed petition for
review must be accompanied by a motion that shows good cause for the untimely
filing and an affidavit or sworn statement that includes a specific and detailed
description of the circumstances causing the late filing. Id.
¶5 Here, the Clerk of the Board acknowledged receipt of a petition for review,
but informed the appellant that: (1) the petition was untimely filed; (2) the
Board’s regulations require that a petition that appears to be untimely filed be
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accompanied by a motion to accept the filing as timely and/or to waive the time
limit for good cause; (3) such a motion must be supported by an affidavit or
declaration made under penalty of perjury showing either that the petition was
timely filed or that there is good cause for the late filing; and (4) the Board may
dismiss the petition for review as untimely filed if the appellant did not provide a
motion with an affidavit or declaration. PFR File, Tab 2.
¶6 The appellant did not file such an affidavit or declaration. Instead, he
responded to the Clerk’s notice with an unsworn letter. PFR File, Tab 3. In the
letter, the appellant stated that he “did not receive anything in February of 2014
indicating that [he] needed to respond.” Id. at 1. He explained that he “had
become gravely ill in February and remained ill throughout the summer.” Id. He
enclosed a letter from his physician dated August 26, 2014, which states that he
was ill from March through June 2014 “requiring hospitalization, surgical
procedure and extensive and prolonged antibiotics for febrile and infectious
illnesses.” Id. at 2. Additionally, the letter states, he was confined to his home
during this period with a communicable disease. Id. The appellant explained that
the physician’s note was prepared on August 26, 2014, because he “had returned
to college and would have failed numerous classes because of [his] absence.” Id.
¶7 We find that, even if the appellant had submitted a proper affidavit or
declaration, he has failed to establish good cause for the Board to waive its filing
deadline. To establish good cause for waiver of the Board’s filing deadline, an
appellant must show that he 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). In considering whether he 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 limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
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to timely file his 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).
¶8 Although the appellant contends that he did not receive the initial decision,
PFR File, Tab 1 at 1, the certificate of service shows that the administrative judge
sent the decision to both the appellant and his then-representative on the date of
issuance, IAF, Tab 8. As for his assertion that he would not have been able to
respond even if he had received the initial decision, the appellant has not
explained why his then-representative failed to respond, or why he waited for 11
months to contact the Board about his appeal after the disability period
documented in his physician’s letter. The Board may find good cause for a delay
in filing due to an employee’s hospitalization, ill health, or incapacitation
extending beyond the time limit as prescribed in the Board’s regulations.
Suchecki v. U.S. Postal Service, 47 M.S.P.R. 27, 29 (1991). Under circumstances
similar to the ones in this appeal, however, the Board has found that appellants
failed to establish good cause for a filing delay. See, e.g., id. (finding that,
although the appellant showed that he was unable to file due to his hospitalization
until a certain date, he failed to establish good cause for the 20-day delay in filing
after his release from the hospital, and he also failed to show why his attorney
was unable to file a petition on his behalf, or request an extension of time in
which to file); Hatcher v. Department of Health & Human Services, 27 M.S.P.R.
557, 557 (1985) (concluding that the appellant failed to establish good cause for
the delay in filing a request for his appeal to be reopened where he submitted
evidence that he was hospitalized for several months, starting the date of his
hearing, but he did not explain the lengthy delay between his release from the
hospital and the date upon which he filed his request).
¶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
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Board regarding the appellant’s appeal of his proposed indefinite suspension and
proposed 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
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
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representation for Merit Systems Protection Board appellants before the Federal
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.