Opinion

Derick Eshelman v. Department of the Air Force

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Status: Unpublished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

DERICK ESHELMAN, DOCKET NUMBER

Appellant, DC-0752-15-0222-I-2

DEPARTMENT OF THE AIR FORCE, DATE: January 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ryan Green, Esquire, Washington, D.C., for the appellant.

Sandra Fortson, Joint Base Andrews, Maryland, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate concurring opinion.

FINAL ORDER

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

mitigated the appellant’s removal to a 14-day suspension. For the reasons set

forth below, the agency’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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 following facts are further detailed in the initial decision. The

appellant held the Fire Chief position at Royal Air Force Croughton (RAFC).

Eshelman v. Department of the Air Force, MSPB Docket No. DC-0752-15-0222-

I-1, Initial Appeal File (IAF), Tab 1 at 1; Eshelman v. Department of the Air

Force, MSPB Docket No. DC-0752-15-0222-I-2, Refiled Appeal File (RAF),

Tab 15, Initial Decision (ID) at 2. 2 In 2013, the agency’s Office of Special

Investigations (AFOSI) opened an investigation after receiving a n anonymous tip

that the appellant was committing fraud. ID at 2. The AFOSI later concluded

that the appellant had knowingly scheduled firefighters to an improper work

pattern (embedded schedule) that allowed them to collect a higher rate of pay

from 2010 through 2013, at a cost of approximately $263,000. Id.; IAF, Tab 8

at 95.

¶3 In July 2014, the agency proposed the appellant’s removal based on a single

charge of conduct unbecoming a Federal employee, with three corresponding

specifications. ID at 3; IAF, Tab 1 at 9-11. The deciding official sustained the

removal action, effective November 2014. ID at 3; IAF, Tab 1 at 12 -13. The

appellant challenged his removal in the instant appeal. IAF, Tab 1 at 1 -6.

¶4 After holding the requested hearing, the administrative judge sustained the

lone charge along with each of the underlying specifications and found nexus, ID

at 3-13, but mitigated the removal to a 14-day suspension, ID at 14-19. The

agency has filed a petition for review, arguing that the administrat ive judge erred

in mitigating the penalty. Eshelman v. Department of the Air Force, MSPB

Docket No. DC-0752-15-0222-I-2, Petition for Review (PFR) File, Tab 1. The

appellant has filed a response, and the agency has replied. PFR File, Tabs 3 -5.

The administrative judge dismissed the initial appeal without prejudice for automatic

refiling at a later date, resulting in the two docket numbers associated with this one

matter. IAF, Tab 34.

ANALYSIS

¶5 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. Palermo v. Department of

the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). 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. Palermo, 120 M.S.P.R. 694, ¶ 4. The party who

submits an untimely petition for review has the burden of establishing good cause

for the untimely filing by showing that he exercised due diligence or ordinary

prudence under the particular circumstances of the case. Id. To determine

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

delay, the reasonableness of his excuse and the party’s 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. Id.

¶6 In this case, because the initial decision was issued on July 22, 2016, the

petition for review was due by August 26, 2016. ID at 22; see Palermo,

120 M.S.P.R. 694, ¶ 3; 5 C.F.R. § 1201.114(e). The agency filed its petition

through the Board’s e-Appeal system on August 27, 2016, at approximately

12:13 a.m., several minutes after the deadline for doing so. PFR File, Tab 1.

Because the filing appeared untimely, the Board’s e-Appeal system automatically

generated questions concerning timeliness, to which the agency’s representative

responded as follows:

The PFR was filed prior to the deadline, but did not file. Instead,

when I went to the logged on [sic] to submit the attachments, it had

not been filed. The second attempt to file it with the documents

resulted in the same problem. It appeared that the documents were

being filed, but again, they were not filed. The final attempt resulted

in the documents being untimely. A check of [e-Appeal] will verify

that the documents were timely filed.

Id. at 4. 3

¶7 The Clerk of the Board issued an acknowledgment letter, instructing the

agency that an untimely petition for review must be accompanied by a motion to

either accept the filing as timely, and/or waive the time limit for good cause.

PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)). The letter further instructed

the agency that if it wanted to file the aforementioned motion, the agency must

include a statement signed under penalty of perjury or an affidavit showing that

the petition was either timely or good cause existed for the untimeliness. Id.

at 1-2. It also included a form for doing so, and provided a deadline of

September 23, 2016. Id. at 7-8.

¶8 Despite the instructions contained in the acknowledgment letter, the agency

did not submit a separate sworn statement, affidavit, or further explanation for the

untimely filing by the September 23, 2016 deadline. Instead, in its October 1,

2016 reply brief, the agency argued that it had presented good cause. PFR File,

Tab 4 at 4-8. With that reply brief, the agency also submitted a complaint filed

with the Board’s Technical Support Team, where the agency reported attempting

to file the petition at least twice within the 20 minutes leadi ng up to the deadline

for doing so, but having problems doing so. 4 Id. at 18-19.

¶9 A review of the Board’s e-Appeal logs shows that the agency did access the

system to start the process of filing a pleading on August 26, 2016, at 11:38 p.m.

However, they do not reflect any attempt to submit the pleading until August 27,

2016, at 12:13 a.m. The logs reflect one error, but that error occurred after the

The agency’s representative answered “yes” to whether she declared, under penalty of

perjury, the facts asserted regarding the timeliness of the petition. PFR File, Tab 1 at 4.

The agency described the problem to the Board’s Technical Support Team citing both

August 22, 2016, and August 26, 2016, as the dates of attempted fi ling. PFR File,

Tab 4 at 18. However, it appears that the reference to August 22, 2016, was a

typographical error.

filing deadline, and was caused by the agency attempting to submit the petition a

second time within seconds of the 12:13 a.m. submission, while the initial

submission was still processing.

¶10 In considering allegations that an untimely filing was caused by technical

difficulties, the Board has reached differing conclusions based on the particular

circumstances of each case. Compare Boykin v. U.S. Postal Service,

104 M.S.P.R. 460, ¶ 6 (2007) (excusing a 1-day delay in filing when an

appellant’s representative reported making multiple attempts to timely file and

the Board’s records reflected a high incidence of users reporting problems with

the e-Appeal system during the date in question), Wiggins v. Department of the

Air Force, 113 M.S.P.R. 443, ¶¶ 7, 9 (2010) (excusing a petition that was

untimely by 4 minutes when the appellant was pro se and had attempted to create

a new pleading four times in the days leading up to his untimely filing), and

Social Security Administration v. Price, 94 M.S.P.R. 337, ¶ 7 (2003) (finding that

the agency exercised due diligence and showed good cause for filing a petition

for review 34 minutes late when its attorney submitted a sworn statement

indicating that she began sending the petition prior to the filing deadline but had

technical problems with a fax machine), aff’d, 398 F.3d 1322 (Fed. Cir. 2005),

with Palermo, 120 M.S.P.R. 694, ¶¶ 5-10 (declining to excuse a 7-day delay for

claimed difficulties with e-Appeal when, inter alia, the appellant’s representative

was familiar with e-Appeal and failed to submit a motion showing good cause),

and Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 6 (2014)

(declining to excuse a petition that was untimely by 3½ hours when the petitioner

failed to establish a good reason for the delay). Under the particular

circumstances of this case, we find that the agency has failed to establish good

cause for its untimely petition.

¶11 Although the agency’s petition for review was untimely by mere minutes,

we are not persuaded by the explanation provided. The agency’s representative is

familiar with the e-Appeal system, having used it throughout this appeal. E.g.,

IAF, Tab 3. She is also familiar with the potential consequences of her

untimeliness, having been sanctioned for her untimeliness below. Hearing

Transcript 2 (HT2) at 5-11. 5 Nevertheless, the Board’s e-Appeal logs indicate

that she did not log into the system to begin the process of filing the petition for

review until 11:38 p.m. on the day it was due. See generally Baker v. Department

of Justice, 41 M.S.P.R. 25, 27 (1989) (recognizing that if a party delays the filing

of a petition until the eleventh hour, that party bears the risk that unforeseen

circumstances could prevent the timely filing of that petition). Moreover, as

detailed above, although the agency asserts that there were two failed attempts at

filing the petition before the deadline to do so, the Board’s e -Appeal logs reflect

otherwise. PFR File, Tab 2 at 1-2, 7-8; supra ¶ 9.

¶12 Accordingly, we dismiss the petition for review as untimely filed. T his 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 agency’s removal action.

The agency’s lack of timeliness was a persistent issue below. Among other things, the

agency’s representative failed to submit the agency file until more than 2 weeks after

the deadline for doing so, indicating that it was an unintentional error stemming from a

misplaced email. Compare IAF, Tab 2 at 7, with IAF Tab 5 at 1-2. She also waited

until the afternoon before the original hearing date to reschedule, citing difficulties

obtaining video-teleconference connectivity for certain witnesses, after the appellant

had already travelled from Illinois to Washington, D.C. for the hearing. IAF,

Tabs 25, 29. In another instance, the agency’s representative failed to respond to

emails and motions from opposing counsel in a timel y manner, reporting that technical

problems prevented her from accessing email for a full week. Compare RAF, Tab 1

at 4, 7, Tab 2 at 4, 8, with RAF, Tab 4 at 1. Lastly, she was untimely for each of the

rescheduled hearing days, citing car troubles, traffic, trouble finding parking, and rain,

for which the administrative judge issued sanctions in the form of precluding the

agency from cross examining certain witnesses. HT2 at 5-11.

NOTICE OF APPEAL RIGHTS 6

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 choice s 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. 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 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 any court

of appeals of competent jurisdiction. 7 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