Opinion

Michael Larsen v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jan 18, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL T. LARSEN, DOCKET NUMBER

Appellant, SF-0752-16-0301-I-1

DEPARTMENT OF THE NAVY, DATE: January 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael T. Larsen, Yucca Valley, California, pro se.

Tracey Rockenbach, Esquire, Washington, D.C., 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 On September 8, 2016, the administrative judge issued an initial decision

that affirmed the agency’s removal action. Initial Appeal File (IAF), Tab 36,

Initial Decision (ID) at 1. He notified the appellant that the initial decision would

become the Board’s final decision on October 13, 2016, unless a petition for

review was filed by that date. ID at 62. He also informed the parties that,

pursuant to 5 C.F.R. § 1201.114(h), the length of a petition for review is limited

to 30 pages or 7500 words, whichever is less, and that a request for leave to file a

pleading that exceeds such limitations must be received by the Clerk of the Board

at least 3 days before the filing deadline. ID at 64.

¶3 The appellant attempted to file a 128-page petition for review on

October 13, 2016. Petition for Review (PFR) File, Tab 1 at 1. However, because

the petition for review was noncompliant with the Board’s 30-page length

limitation, the Clerk of the Board rejected it and allowed the appellant to file a

perfected petition for review by October 21, 2016. Id. The Clerk of the Board

explained in the rejection letter that, if a petition for review was not filed by that

date, the September 8, 2016 initial decision would remain the final decision of the

Board. Id.

¶4 Nearly 1 month past the October 21, 2016 deadline, the appellant filed a

perfected petition for review on November 17, 2016, along with a declaration and

a statement addressing the untimeliness of the submission. PFR File, Tab 2. In

an acknowledgment letter, the Clerk of the Board informed the appellant that his

petition for review was untimely filed and that he could file a motion with the

Board to accept his filing as timely or to waive the time limit for good cause .

PFR File, Tab 3 at 1-2. The appellant thereafter filed a motion to accept his

petition for review as timely filed or to waive the time limi t, and he submitted a

new version of the petition for review, a declaration, and a copy of an email

exchange between him and the agency representative. PFR File, Tab 4. The

agency filed a response arguing, in part, that the appellant failed to show good

cause for the untimely petition for review. PFR File, Tab 5 at 5-6.

¶5 The appellant asserts in his motion and declaration that he did not receive

the Clerk of the Board’s rejection letter until he checked the Repository at

e-Appeal Online on November 16, 2016. PFR File, Tab 4 at 4-5, 33-34. He

further alleges that he demonstrated due diligence by perfecting his petition for

review within 24 hours of receiving notice of the rejection letter . Id. at 7. He

does not challenge the rejection of his initial petition for review, which we find

was clearly noncompliant because it vastly exceeded the 30 -page limitation that

he was notified of in the initial decision. Id. at 5, 34.

¶6 The Clerk of the Board’s rejection letter clearly notified the appellant that a

perfected petition for review had to be filed by October 21, 2016. PFR File,

Tab 1. We reject the appellant’s assertion that he did not receive the rejection

letter until November 16, 2016. The Board’s regulations provide that a registered

e-filer, like the appellant, agrees to accept documents through electronic service

and is required to monitor his case activity at the Repository at e -Appeal Online

to ensure that he receives all case-related documents. IAF, Tab 1 at 2; Rivera v.

Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); 5 C.F.R.

§ 1201.14(e)(1), (j)(3). They further provide that pleadings and Board documents

served electronically on registered e-filers are deemed received on the date of

electronic submission. Rivera, 111 M.S.P.R. 581, ¶ 5; 5 C.F.R. § 1201.14(m)(2).

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, 111 M.S.P.R.

581, ¶ 5. Thus, we deem the appellant to have received the rejection letter on

October 14, 2016, and his perfected petition for review was, therefore, untimely

filed by nearly 1 month. PFR File, Tab 1 at 3.

¶7 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. 5 C.F.R. § 1201.114(f)-(g).

To establish good cause for the untimely filing, a party must show that he

exercised due diligence or ordinary prudence under th e particular circumstances

of the case. See 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 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

which 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).

¶8 We find that the appellant has not demonstrated good cause for th e untimely

filing of his petition for review. His nearly 1-month delay in filing is not

insignificant. See, e.g., Floyd v. Office of Personnel Management, 95 M.S.P.R.

260, ¶ 6 (2003) (finding a 1-month delay not minimal); Crozier v. Department of

Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (finding a 13-day delay not

minimal). Although the appellant is pro se, he is an attorney experienced with

legal matters and familiar with Board procedures as a former agency

representative. PFR File, Tab 5 at 26-29. Moreover, his argument that he did not

receive the rejection letter until after the deadline had passed is not a reasonable

excuse and does not establish that he exercised due diligence in monitoring his

case as required under the Board’s regulations. See Rivera, 111 M.S.P.R. 581,

¶ 7 (finding that the appellant failed to show that he exercised due diligence in

monitoring his case as a registered e-filer); 5 C.F.R. § 1201.14(j)(3). In addition,

the administrative judge notified the appellant of the Board’s length limitations

for a petition for review and of the need to request a waiver of such limitations at

least 3 days before the filing deadline. ID at 64; see Mendoza v. Merit Systems

Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc); Morris v.

Department of the Navy, 123 M.S.P.R. 662, ¶ 13 (2016) (finding that “[l]itigants

before the Board are expected to comply with all orders issued by the Board and

to comply with the Board's regulations”).

¶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 OF APPEAL RIGHTS 2

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 b elow 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).

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.

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 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 tha t 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 revi ew either with the

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

competent jurisdiction. 3 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