Opinion

Amy Farrell v. Department of Veterans Affairs

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Status: Unpublished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

AMY FARRELL, DOCKET NUMBER

Appellant, CH-0752-17-0015-I-1

DEPARTMENT OF VETERANS DATE: January 18, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Amy Farrell, Des Moines, Iowa, pro se.

Lisa Hosman-Davis, Esquire, Minneapolis, Minnesota, 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 her involuntary retirement 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The relevant background information, as stated in the initial decision, is not

in material dispute. The appellant applied for disability retirement in January

2015 and filed a formal equal employment opportunity complaint with the agency

in May 2015, alleging that her decision to apply for disability retirement

constituted a constructive discharge. Initial Appeal File (IAF), Tab 6, Initial

Decision (ID) at 2. The appellant’s disability retirement was effected on

September 15, 2015. ID at 1.

¶3 On July 29, 2016, the agency issued a final agency decision, in which it

found that it had not discriminated against the appellant. ID at 2. The agency’s

decision informed the appellant of her right to file an appeal with the Board

within 30 days of her receipt of the decision. Id.

¶4 On October 4, 2016, the appellant filed this appeal wi th the Board. 2 IAF,

Tab 1. The administrative judge ordered the appellant to file evidence and

argument to establish the timeliness of her appeal and to make a nonfrivolous

allegation of Board jurisdiction. ID at 2. On November 8, 2016, after the

appellant failed to respond to the orders, the administrative judge dismissed the

appeal for lack of jurisdiction without holding the requested hearing. 3 ID at 2-6.

¶5 On or about December 7, 2016, the appellant requested an extension to file

a petition for review of the initial decision. Petition for Review (PFR) File,

Tab 1. The Office of the Clerk of the Board granted the appellant’s request and

Although the administrative judge indicated that the appeal was filed on October 5,

2016, ID at 2, the electronic date stamp on the initial appeal indicates that it was filed

the day before, IAF, Tab 1.

Because she dismissed the appeal on jurisdictional grounds, the administrative judge

did not address the apparent untimeliness of the appeal. ID at 6.

informed her that she may file a petition on or before January 12, 2017. PFR

File, Tab 2 at 1. The appellant was informed that if she did not file a petition by

January 12, 2017, the initial decision would remain the final decision of the

Board. Id.

¶6 On January 15, 2017, the appellant filed an initial appeal form with the

Board, again alleging that she felt forced into retirement. PFR File, Tab 3 at 4.

On January 18, 2017, the Clerk’s Office informed the appellant that the Board

would consider her submission to be a petition for review of the initial decision,

but as such it appeared to be untimely filed. PFR File, Tab 4 at 1. The Clerk’s

Office set a deadline of February 2, 2017, for her to file a motion to either accept

the filing as timely or waive the time limit for good cause. Id. at 1-2. The

appellant filed no such motion by the deadline.

¶7 On February 10, 2017, the agency filed a response in opposition to the

petition for review, arguing that the petition was untimely with no good cause

shown. PFR File, Tab 5. On or about February 17, 2017, the Board’s Central

Regional Office received a submission from the appellant , which has been

docketed as a reply to the agency’s response. PFR File, Tab 6. On August 25,

2017, the appellant filed a motion to request that the Board waive the time limit

of her petition for review for good cause. PFR File, Tab 10.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 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 th at

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). The

Board, however, may grant an extension of the time limit upon a showing of good

cause. 5 C.F.R. § 1201.114(f).

¶9 Here, the Office of the Clerk of the Board granted the appellant an

extension of time beyond the deadline set forth in section 1201.114(e), until

January 12, 2017, to file her petition for review. But the appellant did not file her

petition until January 15, 2017. It was therefore 3 days late.

¶10 The Board will excuse the untimely filing of a petition for review only upon

a showing of good cause for the delay. Via v. Office of Personnel Management,

114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). To establish good cause

for the untimely filing, a party must show that she 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 her 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 casualty or misfortune that similarly sh ows

a causal relationship to her inability to timely file her petition for review.

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).

¶11 In her request for an extension of time to file a petition for review, the

appellant noted that she was disabled and caring for three children, one of whom

was also disabled. PFR File, Tab 1 at 3-4. She also asserted that she lost her

home in a fire in August 2015, that someone stole $40,000 from her, and that she

was involved in multiple lawsuits. Id. at 4. In her petition for review, she

claimed to have both physical and mental disabilities. PFR File, Tab 3 at 4 -5. In

her reply to the agency’s response to her petition, the appellant again referenced

some of these difficulties, as well as some problems she experienced with her

computer and mail delivery. PFR File, Tab 6 at 3.

¶12 In her motion to waive the time limit for filing the petition for review, the

appellant acknowledged that her petition was untimely by 3 days and refer enced

the same difficulties she discussed in her previous pleadings. 4 PFR File, Tab 10

at 4-5, 7, 9. She seemed to assert that the primary reason that her petition was

untimely was that her mailman dropped a package of hers and ran it over,

destroying a flash drive in the process. Id. at 9. She stated that, although she had

a back-up of the flash drive on her personal computer, she had sent her computer

away for repairs. Id.

¶13 However, the appellant did not explain what was on the flash drive, where

she was sending it, or how it was relevant to her appeal. Furthermore, assuming

arguendo that the flash drive contained her petition for review and that she was

sending it to the Board, she did not explain why she could not file a second

extension to file her petition for review prior to the January 12, 2017 deadline.

Accordingly, we find that the appellant’s assertions regarding her problems with

her computer and mail delivery fail to establish good cause for the untimely filing

of her petition for review. See Heath v. Department of Agriculture, 109 M.S.P.R.

684, ¶ 6 (2008) (finding that the loss of a thumb drive did not establish good

cause for the agency’s untimely filing when the agency representative failed to

request a further extension of the filing deadline).

¶14 Regarding the appellant’s disabilities, the Board will find good cause for

waiver of its filing time limits when a party demonstrates that she suffered from

an illness that affected her 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 she

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

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

As stated earlier, the appellant’s motion was due by February 2, 2017, and she filed it

with the Board on August 25, 2017. PFR File, Tabs 4, 10. It was therefore untimely

filed by 6 months. Although the appellant has failed to establish good cause for the

untimeliness of her motion, we nonetheless consider it and find that it does not establish

good cause for her untimely filed petition for review.

prevented her from timely filing her submission or a request for an extension of

time. Id. The appellant submitted some evidence regarding her illnesses. PFR

File, Tab 6 at 7-34, 45-49, 102, 107-14, 120-23, 125, 152, 160, 181. This

evidence, however, dates back to 2014 and early 2015, approximately 2 years

prior to her deadline for filing a petition for review. Id. More importantly, the

appellant has not explained how her illnesses prevented her from timely filing her

petition. Accordingly, she has failed to demonstrate good cause for her untimely

filing based on her illness. See Lacy, 78 M.S.P.R. at 437.

¶15 Regarding the appellant’s other potential excuses for her untimely filing,

such as the loss of her home and her involvement in multiple lawsuits, she has

similarly failed to explain how these events contributed to the untimeliness of her

petition for review. See Mitchell v. U.S. Postal Service, 111 M.S.P.R. 346, ¶¶ 3-8

(2009) (finding that an appellant who had a disabled son, was trying to secure

unemployment benefits, and was searching for a new home after being evicted,

failed to show good cause for his untimely filed petition for review), aff’d, 361 F.

App’x 132 (Fed. Cir. 2010).

¶16 Although the length of the delay was relatively short, and the appellant is

proceeding pro se, we find she has not shown that circumstances beyond her

control prevented her from filing a timely petition for review, or that she

exercised due diligence or ordinary prudence under the circumstances.

Accordingly, we dismiss the petition for review as untimely filed without a

showing of good cause for the delay. See Melendez v. Department of Homeland

Security, 112 M.S.P.R. 51, ¶ 16 (2009) (finding that the appellant did not

establish good cause for his 3-day filing delay, notwithstanding his pro se status).

¶17 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 appellant’s alleged involuntary retirement.

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, 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. 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. 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).

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