Opinion

Nathaniel Simmons v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Feb 9, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NATHANIEL J. SIMMONS, DOCKET NUMBER

Appellant, SF-0752-18-0225-I-1

DEPARTMENT OF THE INTERIOR, DATE: February 9, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nathaniel J. Simmons, Wawona, California, pro se.

Karen D. Glasgow, Esquire, San Francisco, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Limon recused himself and

did not participate in the adjudication of this appeal.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his probationary termination appeal for lack of jurisdiction. For the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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).

BACKGROUND

¶2 Effective October 1, 2017, the agency appointed the appellant, a

nonpreference eligible, to the position of Maintenance Worker in Joshua Tree,

California. Initial Appeal File (IAF), Tab 5 at 21. Effective January 20, 2018,

the agency terminated the appellant during his probationary period based on

charges that he failed to follow verbal and written supervisory directives, failed

to follow established leave policy, and was absent without leave. Id. at 9-20.

The appellant timely filed this appeal with the Board, and he requested a hearing.

IAF, Tab 1. He asserted, among other things, that the agency engaged in harmful

procedural error, discriminated against him because of his disability and his

status as a single father of two girls, and he offered an explanat ion for the

charges. IAF, Tab 1 at 5, Tab 6 at 3.

¶3 The administrative judge dismissed the appeal for lack of jurisdiction

without holding the requested hearing. IAF, Tab 7, Initial Decision (ID). She

found that the appellant failed to raise a nonfrivolous allegation of Board

jurisdiction because, as a nonpreference eligible in the excepted service, he was

not serving in an appointment pending conversion to the competitive service and

he had not completed 2 years of current continuous service at the time of his

termination. ID at 1, 3 (citing 5 U.S.C. § 7511(a)(1)(C)). The initial decision

noted that it would become final on April 10, 2018, unless a petition for review

was filed by that date. ID at 4.

¶4 Nearly a year later, on April 4, 2019, the appellant filed a petition for

review. Petition for Review (PFR) File, Tab 1. He asserts, among other things,

that he was “out of the 90 day probation[ary] period,” that he was terminated

because of his disability and because of the agency’s failure to accommodate him,

and that the agency improperly stated his termination date. Id. at 4-6. The

agency has filed a response. PFR File, Tab 3.

¶5 In its acknowledgement letter, the Office of the Clerk of the Board informed

the appellant that his petition appeared untimely and that untimely petitions had

to be accompanied by a motion to accept the filing as timely and/or to waive the

time limit. PFR File, Tab 2 at 1. The appellant thereafter filed such a motion. 2

PFR File, Tab 4. In it, he asserts that his petition was timely inasmuch as he “did

not receive the email with the initial decision until after the final filing date

because . . . it had been marked as spam,” unlike previous filings that were sent to

his “main email.” PFR File, Tab 4 at 1. He also states that the time limit should

be waived because he has a disability and was without a job or a place to live . Id.

at 2. Finally, he contends that he did not ask for an extension of time to file his

petition before the deadline because he was seeking legal aid and filing a

disability discrimination claim with the Equal Employment Opportunity

Commission (EEOC). Id. at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s petition for review was untimely filed.

¶6 A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision or, if the party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e).

¶7 The appellant asserts that he did not receive the email containing the initial

decision until after the “final filing date” because it had been marked as spam.

PFR File, Tab 4 at 1. As a registered e-filer, however, the appellant consented

The acknowledgement letter informed the appellant that his motion had to be

postmarked if mailed or sent by facsimile on or before April 20, 2019. PFR File, Tab 2

at 2. The appellant’s motion, which was sent by first-class mail, had a barely legible

postmark that appeared to read, “22 APR.” PFR File, Tab 4 at 5. Despite the apparent

untimeliness of the appellant’s motion, we have nevertheless considered it.

to accept all documents issued by the Board in electronic form. IAF, Tab 1 at 2;

see 5 C.F.R. § 1201.14(e)(1). Board documents served electronically on

registered e-filers are deemed received on the date of electronic submission.

5 C.F.R. § 1201.14(m)(2). Here, a Board paralegal specialist certified that the

initial decision was sent via electronic mail to the appellant on March 6, 2018.

IAF, Tab 8 at 1. We therefore find that the appellant received the initial decision

on the date that it was issued, March 6, 2018. The appellant electronically filed

his petition for review on April 4, 2019. PFR File, Tab 1. It is therefore nearly

1 year late.

The appellant did not show good cause for his untimely filing.

¶8 The Board will waive its filing deadline only upon a showing of good cause

for the delay. Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5

(2014); 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing

of an appeal, a party 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). To determine whether an appellant

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 that similarly shows a causal

relationship to his inability to timely file his petition for review.

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).

¶9 The appellant is proceeding pro se, which is a factor that works in his favor.

However, the remaining factors do not work in his favor. For example, his nearly

1-year filing delay is significant. See Batiste v. U.S. Postal Service, 98 M.S.P.R.

621, ¶ 8 (2005) (finding a pro se appellant’s approximately 10-month filing delay

to be significant), aff’d, 158 F. App’x 294 (Fed. Cir. 2005).

¶10 We have considered the appellant’s assertion that the filing deadline should

be waived because of his disability. The Board will find good cause for waiver of

its filing time limits when a party demonstrates that he suffered from an illness

that affected his ability to file on time. 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 he suffered

from the illness, (2) submit medical evidence showing that he suffered from the

alleged illness during that time period, and (3) explain how the illness prevented

him from timely filing his submission or requesting an extension of time. Id.

¶11 The appellant was appointed pursuant to 5 C.F.R. § 213.3102(u), a Schedule

A excepted-service hiring authority pertaining to the appointment of persons with

certain disabilities. IAF, Tab 5 at 21. However, the appellant has not provided

any information or medical evidence concerning his disability, the time frame in

which he suffered from the disability, or how the disability prevented him from

timely filing his petition or requesting an extension. Accordingly, he has failed

to demonstrate good cause for his untimely filing based on his disability.

¶12 Regarding due diligence, the appellant asks that the Board excuse his

untimely petition because the email containing the initial decision was sent to his

spam folder. PFR File, Tab 4 at 1. Because the appellant registered as an e-filer,

he was responsible for ensuring that emails from @mspb.gov were not blocked by

filters and for monitoring his case at the Repository at e-Appeal Online to ensure

that he received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3).

Although the appellant indicates that, prior to the initial decision, he never had

problems with emailed pleadings being blocked by filters, PFR File, Tab 1 at 4, it

is clear that he failed to monitor his case at the Repository, which demonstrates a

lack of due diligence.

¶13 We have also considered the appellant’s assertion that he was without a job

or a place to live. PFR File, Tab 4 at 2. Without an explanation of how these

events contributed to the untimeliness of his petition for review, these

circumstances do not constitute good cause for the delay in filing. See Mitchell v.

U.S. Postal Service, 111 M.S.P.R. 346, ¶¶ 3-8 (2009) (finding that an appellant

failed to show good cause for his untimely filed petition for review even though

he had a disabled son, was trying to secure unemployment benefits, and was

searching for a new home after being evicted), aff’d, 361 F. App’x 132 (Fed. Cir.

2010).

¶14 Finally, we have considered the appellant’s assertion that he did not ask for

an extension of time to file his petition because he was seeking legal aid and

filing a disability discrimination claim with the EEOC. PFR File, Tab 4 at 3.

However, an appellant’s attempts to obtain, or inability to obtain, legal

representation does not establish good cause for his untimely filing or failure to

request an extension of time. Gaines v. U.S. Postal Service, 96 M.S.P.R. 504, ¶ 7

(2004); Abney v. Office of Personnel Management, 89 M.S.P.R. 305, ¶ 5 (2001),

aff’d, 41 F. App’x 421 (Fed. Cir 2002). Moreover, an appellant’s ability to

participate in other litigation undermines his claim that he could not timely file a

petition for review or request an extension. See, e.g., Stribling v. Department of

Education, 107 M.S.P.R. 166, ¶ 14 (2007) (finding that the appellant failed to

establish that her medical condition prevented her from timely filing her petition

for review or a request for an extension of time because she was actively

participating in other proceedings during the relevant time period) .

¶15 For these reasons, we dismiss the appellant’s petition for review 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 probationary

termination appeal.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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, 10, and 11.

If you are interested in securing pro bono representation for an 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues, then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of

appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the