The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORETTA JEAN ALFORD, DOCKET NUMBER
Appellant, DC-0752-14-0892-I-1
v.
COMMITTEE FOR PURCHASE DATE: August 19, 2016
FROM PEOPLE WHO ARE BLIND
OR SEVERELY DISABLED,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall, Charleston, South Carolina, for the appellant.
Floyd Allen Phaup, II, Esquire, 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 her removal for absence without leave, failure to follow supervisory
instructions, and unauthorized use of Government property. For the reasons set
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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).
BACKGROUND
¶2 On July 16, 2014, the appellant filed an appeal challenging her removal and
raising affirmative defenses of reprisal for whistleblowing disclosures and equal
employment opportunity activity, disability discrimination, and harmful
procedural error. Initial Appeal File (IAF), Tab 1. On November 13, 2014, the
administrative judge issued a decision affirming the agency’s action and denying
the appellant’s affirmative defenses. IAF, Tab 23, Initial Decision. On
December 1, 2014, the appellant moved for an extension of time to file a petition
for review of the initial decision, and the extension request was granted. Petition
for Review (PFR) File, Tab 1 at 5-6, Tab 2 at 1. When granting the request, the
Board directed the appellant to file a petition for review on or before January 20,
2015. PFR File, Tab 2 at 1. Over a year later, on March 16, 2016, the appellant
filed an untimely petition with the Board’s Washington Regional Office, which
then forwarded the pleading to the full Board in Washington, D.C., and the Clerk
of the Board instructed her to file a motion to accept the filing as timely or to
waive the time limit for good cause. PFR File, Tab 4, Tab 6 at 2. The appellant
filed a motion on April 8, 2016, in which she addressed the merits of her removal,
but not the timeliness issue. 2 PFR File, Tab 7 at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 The Board’s regulations provide that any petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the petitioner
2
On July 8, 2016, several months after filing her petition for review, the appellant filed an
additional pleading. PFR File, Tab 8. Although the appellant failed to first request leave
from the Clerk of the Board as required by 5 C.F.R. § 1201.114(a)(5) prior to filing her
additional pleading, we nonetheless have reviewed the pleading and find it not material to
the outcome of the appeal.
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shows that the initial decision was received more than 5 days after the date of
issuance, within 30 days after the date the petitioner received the initial
decision. 5 C.F.R. § 1201.114(e). The Board may waive the time limit upon a
showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.113(d),
1201.114(f). To establish good cause for the untimely filing of a petition for
review, a party must show that she 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); Alonzo v. Department of the
Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether 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 that similarly shows a causal
relationship to her inability to timely file her appeal. Marcantel, 121 M.S.P.R.
330, ¶ 10.
¶4 The appellant filed a petition for review approximately 1 year and 2 months
later than the deadline mandated by the Board. She did not dispute that her
petition was untimely. Upon receiving the untimely petition, the Board advised
the appellant that she would have to show good cause for waiving the filing
deadline. PFR File, Tab 6 at 1-2. In her motion to waive the deadline, the
appellant did not provide any explanation for her untimely petition. PFR File,
Tab 7 at 1, 3. She did not allege any illness or other incapacity that somehow
prevented her from filing on time. Lacy v. Department of the Navy, 78 M.S.P.R.
434, 437 (1998). The appellant had representation to assist her in the appeals
process and has not demonstrated any circumstances beyond her control that
prevented her from filing a petition for review within the time allotted by the
Board. PFR File, Tab 3 at 2. Since the appellant has not demonstrated good
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cause, her petition must be dismissed as untimely. Deville v. Government
Printing Office, 93 M.S.P.R. 187, ¶¶ 13-14 (2002).
¶5 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 3
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.
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 U.S. 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:
3
The administrative judge did not afford the appellant notice of her appeal rights under
the Whistleblower Protection Enhancement Act of 2012 or notice of her mixed-case
right to appeal her discrimination claims to the Equal Employment Opportunity
Commission and/or the appropriate U.S. district court. This was error, but it does not
constitute reversible error because we notify the appellant of her proper rights in this
Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186–87 (1988).
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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.
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 U.S. 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. 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
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may request the U.S. Court of Appeals for the Federal Circuit or any court of
appeals of competent jurisdiction to review this final decision. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit 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. Additional information about
other courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the U.S. 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
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.