The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA A. JORDAN, DOCKET NUMBER
Appellant, AT-0752-12-0036-I-1
v.
ENVIRONMENTAL PROTECTION DATE: September 22, 2015
AGENCY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Barbara A. Jordan, Stone Mountain, Georgia, pro se.
Alexandra Meighan, 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
affirmed the agency’s action removing her from her position as an Administrative
Officer. For the reasons set forth below, the appellant’s petition for review is
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
¶2 The appellant appealed the agency’s action removing her from her position
as an Administrative Officer, GS-11. Initial Appeal File (IAF), Tab 1. After
holding a hearing, the administrative judge sustained the charged misconduct and
affirmed the agency’s removal. Initial Decision (ID) at 10-13. The initial
decision also informed the parties that it would become final, unless a party filed
a petition for review by April 23, 2012. ID at 13.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The appellant, however, did not file her petition for review until July 9,
2015. Petition for Review (PFR) File, Tab 1. On review, she states that she has
been homeless since August 2011 and she asserts that she did not receive the
initial decision “via mail” when it was issued. Id. at 3. She also appears to assert
that she only learned that the initial decision was issued when she went to the
Board’s Atlanta Regional Office on February 14, 2014, over approximately
2 years later. Id.
¶4 A petition for review must be filed within 35 days after the date of issuance
of the initial decision. Sutton v. Office of Personnel Management, 113 M.S.P.R.
576, ¶ 5 (2010), aff’d, 414 F. App’x 272 (Fed. Cir. 2011); 5 C.F.R. § 1201.114(d).
The Board will waive the filing deadline for a petition for review only upon a
showing of good cause for the delay in filing. Id.; Lawson v. Department of
Homeland Security, 102 M.S.P.R. 185, ¶ 5 (2006); 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
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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, the appellant’s filing delay was substantial as she filed her petition
for review over 3 years after the April 23, 2012 filing deadline. While she asserts
that her petition was untimely because she did not become aware of the initial
decision until February 14, 2014, she has offered no justification for the delay
between February 14, 2014, and her filing on July 9, 2015, approximately
17 months later. We also find that, even if true that she did not learn about the
existence of the initial decision until then, her inordinate delay in checking on the
status of her case did not exhibit ordinary prudence or due diligence. Nor has she
explained how her homelessness since August 2011 prevented her from timely
filing her petition for review, especially in light of the fact that she pursued this
appeal below from September 2011 to March 2012.
¶6 To the extent the appellant appears to be asserting that she had medical
issues that prevented her from timely filing her petition for review, the Board will
find good cause for a filing delay where an appellant has demonstrated that she
suffered from an illness that affected her ability to file on time. Sutton,
113 M.S.P.R. 576, ¶ 10; Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437
(1998). 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 (3) explain how the illness prevented her from timely
filing her appeal or a request for an extension of time. Sutton, 113 M.S.P.R. 576,
¶ 10; Lacy, 78 M.S.P.R. at 437. While there is no general incapacitation
requirement, the appellant is required to explain why her alleged illness impaired
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her ability to meet the Board’s filing deadline or seek an extension of time.
Sutton, 113 M.S.P.R. 576, ¶ 10; Lacy, 78 M.S.P.R. at 437 n.*. Here, the appellant
submits medical documentation from 2014 and 2015, well after the filing
deadline, and she fails to provide any explanation as to how her medical
conditions prevented her from timely filing either her petition or a request for an
extension of time. See, e.g., Ortiz v. Department of Justice, 103 M.S.P.R. 621,
¶ 23 (2006) (finding that a letter by the appellant’s physician that the appellant
suffered from depression and other conditions was insufficient to justify the
entire 3-year delay in filing a petition for review where the letter failed to state
that the appellant’s condition was so severe that he could not file a petition or
seek help to do so). Thus, we find that the appellant has not demonstrated that
her medical conditions prevented her from timely filing her petition for review.
¶7 Moreover, the record reflects that the appellant elected to register as an
e-filer. IAF, Tab 1 at 2. Under 5 C.F.R. § 1201.14(m)(2), Board documents
served electronically on registered e-filers are deemed received on the date of
electronic submission. When a statute or regulation “deems” something to have
been done, the event is considered to have occurred whether or not it actually did.
Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009). Thus, the
initial decision would have been deemed received on March 19, 2012.
¶8 An e-filer may withdraw her registration as an e-filer at any time during a
Board proceeding, but such withdrawal must be done by written pleading,
submitted either via e-Appeal Online or via nonelectronic means. 5 C.F.R.
§ 1201.14(e)(4). In this instance, while the appellant asserts that she did not
receive the initial decision “via mail,” there is no evidence in the record that she
ever expressed a desire to change her e-filing status. Under these circumstances,
we find that the appellant did not terminate her status as an e-filer, and that she
has failed to show that she exercised the due diligence or ordinary prudence in
this case that would justify waiving the filing deadline. We therefore find the
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petition for review was untimely filed without a showing of good cause for
the delay.
¶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
Board regarding the removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
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Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.