Opinion

Rhonda Golston v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jan 23, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RHONDA GOLSTON, DOCKET NUMBER

Appellant, DC-1221-15-0769-W-1

DEPARTMENT OF VETERANS DATE: January 23, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Rhonda Golston, Twinsburg, Ohio, pro se.

Monique Smart, Winston-Salem, North Carolina, 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 for lack of jurisdiction her individual right of action (IRA) appeal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The appellant, a Recreation Therapist at a Department of Veterans Affairs

Medical Center, filed an IRA appeal with the Board in which she alleged that the

agency retaliated against her because of her whistleblowing activity. Initial

Appeal File (IAF), Tab 1. 2 The administrative judge issued an initial decision

that dismissed the appeal for lack of jurisdiction based o n the written record,

finding that, although the appellant had exhausted her administrative remedies

with the Office of Special Counsel, she had failed to raise a non frivolous

allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8). IAF,

Tab 18, Initial Decision (ID) at 5-7. The initial decision specified that it would

become final on August 24, 2016, unless a petition for review was filed by that

date. ID at 7.

¶3 On August 8, 2016, the appellant requested an extension of time to file a

petition for review of the administrative judge’s July 20, 2016 initial decision.

Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued an order

granting the appellant an extension of time to file her petition for review on or

before September 23, 2016. PFR File, Tab 2 at 1. In the order, the Clerk also

informed the appellant that if she failed to file her petition by September 23,

2016, the administrative judge’s July 20, 2016 initial decision would become the

final decision of the Board. Id.

¶4 The appellant filed her petition for review by facsimile (fax) on

September 26, 2016, three days after the filing deadline. PFR File, Tab 3. In a

letter acknowledging the petition for review, the Clerk of the Board indicated that

the petition was untimely because it was not filed by the September 23, 2016

deadline granted in the Board’s extension-of-time order. PFR File, Tab 4 at 1.

On September 8, 2015, the appellant was removed from her position. IAF, Tab 18,

Initial Decision at 3 n.2. On September 30, 2015, she timely filed an appeal with the

Board challenging her removal, and the Board affirmed the agency’s removal action.

Id.; see Golston v. Department of Veterans Affairs, MSPB Docket No. DC-0752-16-

0002-I-1, Initial Decision at 1 (Jan. 21, 2016).

The Clerk informed the appellant that a petition for review that appears to be

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

waive the time limit for good cause. Id. The acknowledgment letter from the

Clerk included a form to assist the appellant in filing her motion. Id. at 2. The

Clerk also informed the appellant that her motion had to be filed by October 20,

2016. Id.

¶5 The appellant responded by filing a timely motion to waive the time limit

for good cause, which she describes as “extreme interference” at two libr aries

consisting of “electronic and manipulation programs” that caused her difficulty in

accessing documents attached to an old email account and in preparing her

petition for review on Friday, September 23, 2016. PFR File, Tab 5 at 10. She

states that, after she finished preparing her petition, she went to numerous

libraries and the United Parcel Service (UPS) to fax her petition to the Board on

the filing deadline, but they were closed; therefore, her only option was to fax her

petition on Monday, September 26, 2016. Id. at 11. She also submits a copy of a

UPS fax transmission report dated September 26, 2016, indicating that 69 pages

were sent from a remote station at UPS on that date. Id. at 20. The fax

transmission report from UPS also includes the following handwritten remarks:

“Interference” and “sent to the High School.” Id. In addition, she submits a copy

of 5 U.S.C. § 1221, and she argues the merits of her IRA appeal. Id. at 10-12, 19.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s petition for review is dismissed as untimely filed without good

cause shown.

¶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).

Here, the initial decision was issued on July 20, 2016, the appellant’s petition for

review was originally due on August 24, 2016, and the Clerk of the Board granted

her request for an extension of time to file her petition for review no later than

September 23, 2016. ID at 1, 7; PFR File, Tab 2 at 1. Accordingly, the

appellant’s September 26, 2016 petition for review was untimely by 3 days. For

the reasons stated below, we find that the appellant has not shown good cause for

her failure to meet the filing deadline.

¶7 The Board may extend the time limit for filing a petition for review when

good cause is shown for the untimeliness. Beckley v. U.S. Postal Service,

43 M.S.P.R. 397, 399 (1990); see 5 C.F.R. § 1201.113(d). However, in the

interest of judicial efficiency and fairness, regardless of how minimal the delay,

the Board will not waive its timeliness requirements in the absence of good cause .

The party who submits an untimely petition for review has the burden of

establishing good cause for the untimely filing by showing that she exercised due

diligence or ordinary prudence under the particular circumstances of the case.

See Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To

determine if a party has shown good cause, the Board will consider the length of

the delay, the reasonableness of the party’s 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 casual ty or misfortune

that 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).

¶8 Applying these factors, we find that the appellant has not shown good cause

for her filing delay in this case. Although the appellant is pro se and a delay of

3 days is relatively brief, we find that she has not shown that she exercised due

diligence or ordinary prudence under the circumstances. Here, the Clerk of the

Board expressly advised the appellant of the time limit for filing her petition for

review with the Board and she does not allege any confusion about the filing

deadline. PFR File, Tab 2 at 1. We find that the appellant’s failure to file her

petition for review in accordance with these unambiguous instructions does not

reflect due diligence. See Schoenherr v. Department of Veterans Affairs,

73 M.S.P.R. 99, 102 (1997) (determining that a pro se appellant did not exercise

due diligence when she did not follow the unambiguous instructions for filing a

petition for review set forth in the initial decision); Noble v. U.S. Postal Service,

73 M.S.P.R. 59, 62-63 (1997) (finding that, while the appellant’s 2-day delay in

filing was minimal and she was not represented by an attorney, these factors were

outweighed by her failure to exercise due diligence and ordinary prudence under

the circumstances).

¶9 Although the appellant states that she experienced difficulty preparing and

filing her petition for review on the date that it was due, we find that waiting until

the last day to complete work on one’s petition for review does not demonstrate

due diligence. See De La Garza v. U.S. Postal Service, 45 M.S.P.R. 357, 358-59

(1990). 3 Because the appellant’s arguments on review do not show goo d cause

for her failure to file a timely petition for review or motion for an additional

extension of time to file her petition, we find that her petition is untimely filed by

3 days without good cause shown for the delay. 4 See Melendez v. Department of

Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009) (finding that pro se appellant

did not demonstrate that she exercised due diligence or ordinary prudence in

filing her appeal and, therefore, that she did not show good cause for her 3-day

Under the Board’s regulations, the appellant had several options for timely filing her

petition with the Board. See 5 C.F.R. § 1201.114(d) (specifying that all motions and

pleadings must be filed with the Clerk of the Board “by commercial or personal

delivery, by facsimile, by mail, or by electronic filing in accordance with ” 5 C.F.R.

§ 1201.14); see also 5 C.F.R. § 1201.4(l) (providing that the date of a filing by mail is

determined by the postmark date). The appellant’s argument, that she waited until the

last day for filing to complete work on her petition and her attempt to file her petition

after hours was unsuccessful because everything was closed, does not demonstrate due

diligence. See De La Garza, 45 M.S.P.R. at 358-59.

The appellant does not allege any ambiguity in the filing instructions that she received

or confusion about the Board’s procedures, and she does not allege that any failure of

the Board’s electronic filing methods prevented her from filing a timely petition.

filing delay); Noble, 73 M.S.P.R. at 62-63 (finding that pro se appellant did not

show good cause for her 2-day filing delay, considering that she did not allege

any ambiguity in the filing deadline or in the Board’s instructions and

procedures); Snipes v. Office of Personnel Management, 32 M.S.P.R. 66, 67

(finding no showing of good cause to waive a 3-day filing delay when the

appellant’s submissions did not show that she could not have obtained evidence

prior to the filing deadline and she did not request an extension of time to file),

aff’d, 831 F.2d 306 (Fed. Cir. 1987) (Table); 5 C.F.R. §§ 1201.113(d),

1201.114(f).

¶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 the dismissal of the appellant’s IRA appeal for lack of

jurisdiction.

NOTICE OF APPEAL RIGHTS 5

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, th e 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

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.

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 A ppeals 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

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 section

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 an y court of appeals of

competent jurisdiction. 6 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).

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.

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