Opinion

Corey Stoglin v. Department of Labor

Court: Merit Systems Protection Board
Filed: Feb 6, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

COREY D. STOGLIN, DOCKET NUMBER

Appellant, CH-1221-19-0508-W-1

DEPARTMENT OF LABOR, DATE: February 6, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Corey D. Stoglin, Minneapolis, Minnesota, pro se.

Edward V. Hartman, Esquire, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

¶2 On February 28, 2020, the administrative judge issued an initial decision in

which he found that, while he satisfied the exhaustion requirement regarding his

IRA appeal, the appellant failed to nonfrivolously allege that he made any

protected disclosures that may have contributed to a personnel action. Initial

Appeal File, Tab 13, Initial Decision (ID) at 6-11. Accordingly, the

administrative judge dismissed the appeal for lack of jurisdi ction, ID at 2, 11,

informing the parties that the initial decision would become the Board’s final

decision on April 3, 2020, unless either party filed a petition for review, ID at 11.

¶3 On April 10, 2020, the appellant filed a petition for review, 1 week late.

Petition for Review (PFR) File, Tab 1. He claimed that he was attempting to

work with an attorney who had requested documentation but that he had limited

internet access from March 26-28, 2020, because he was on mandatory telework

due to COVID-19, and also that he missed work from March 30-April 3, 2020,

due to illness. 2 Id. at 4. The Clerk of the Board informed the appellant that his

petition for review appeared to be untimely filed and instructed him to submit

evidence and argument showing that the petition for review was timely filed or

that good cause existed for the delay in filing. PFR File, Tab 2. In response, the

appellant submitted a Motion to Accept Filing as Timely Filed and/or to Ask the

Board to Waive or Set Aside the Time Limit in which he asserted that he was

severely ill from a medical condition for which he had been treated for 2 years.

PFR File, Tab 3. The appellant also submitted a memorandum from his doctor,

who stated that the appellant was under his care, that he suffered from “medical

illness” and was unable to work from March 30-April 3, 2020, and that he has

The appellant also asked that his case be joined with another of his cases, Stoglin v.

Department of Labor, MSPB Docket No. CH-4324-19-0114-I-1, which was pending

before the Board at the time. PFR File, Tab 1 at 4. Because the two cases involve

different causes of action, and based on our disposition of this appeal, we deny the

appellant’s request for joinder. 5 C.F.R. § 1201.36(b).

now fully recovered. Id. at 6. The agency has responded in opposition to the

petition for review. PFR File, Tab 4.

ANALYSIS

¶4 The appellant bears the burden of proof by preponderant evidence regarding

timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition for review must be filed

within 35 days after issuance of the initial decision or, if a party shows that he

received the ID more than 5 days after it was issued, within 30 d ays of receipt. 3

Williams v. Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008);

5 C.F.R. 1201.114(e).

¶5 The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the delay in filing. Williams, 109 M.S.P.R.

237, ¶ 7; 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 diligen ce, 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. 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).

¶6 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

The appellant raises no such claim regarding receipt.

during that time period; and (3) explain how the illness prevented h im from

timely filing his appeal or a request for an extension of time. Lacy v. Department

of the Navy, 78 M.S.P.R. 434, 437 (1998). To establish good cause for waiver of

the Board’s filing deadline based on physical or mental illness, there is no general

incapacitation requirement; rather, the appellant is required only to explain why

his alleged illness impaired his ability to meet the Board’s filing deadline or seek

an extension of time. Id. at 437 n.*.

¶7 Here, although the appellant is proceeding pro se, the length of the delay,

1 week, is not insignificant. Gonzalez v. Department of Veterans Affairs,

111 M.S.P.R. 697, ¶ 11 (2009) (holding than an 8-day delay in filing a petition

for review is not minimal). To the extent the appellant suggests that his efforts to

secure attorney representation toward the end of the filing period were thwarted

by his limited internet access, such a claim does not constitute good cause for his

untimely filing. See Tamayo v. Office of Personnel Management , 88 M.S.P.R.

685, ¶ 7 (2001) (stating that the inability to obtain a representative does not

establish good cause for an untimely filing). The appellant bears the ultimate

responsibility for pursuing his appeal. Helmstetter v. Department of Homeland

Security, 106 M.S.P.R. 101, ¶ 13 (2007). Moreover, the appellant is responsible

for the errors of his chosen representative. Sofio v. Internal Revenue Service,

7 M.S.P.R. 667, 670 (1981).

¶8 The appellant’s assertion that he was unable to timely file his petition for

review because of illness does not satisfy the Lacy standard. First, he claims only

that he was sick from March 30 to April 3, 2020, PFR File, Tab 1, and his

medical documentation only addresses that same time period, PFR File, Tab 3

at 6. However, the filing period ran from February 28 to April 3, 2020.

Moreover, the appellant’s medical documentation is otherwise insufficient to

support his claimed inability because it fails to explain how his illness prevented

him from timely filing his petition for review or requesting an exte nsion of time

in which to do so. Moreover, the appellant has not explained why he did not

more promptly file with the Board after April 3.

¶9 We find, therefore, that the appellant has failed to establish good cause for

his untimely filing because he has not shown that he acted with due diligence or

that there were circumstances beyond his control that affected his ability to

comply with the time limits or of unavoidable casualty or misfortune showing a

causal relationship to his inability to timely file his petition. Moorman,

68 M.S.P.R. at 62-63.

¶10 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 its lack of jurisdiction over the appellant’s IRA appeal.

NOTICE OF APPEAL RIGHTS 4

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.

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

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

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:

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 Fe deral

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 your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in s ection

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” 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. 5 The court of appeals must receive your petition for

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

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

following address:

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