Opinion

Brian Broadhead v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Nov 9, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BRIAN BROADHEAD, DOCKET NUMBER

Appellant, DC-0432-17-0126-I-1

DEPARTMENT OF COMMERCE, DATE: November 9, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Kristen Farr, Esquire, and Rosemary Dettling, Esquire, Washington, D.C.,

for the appellant.

William Horrigan, Esquire, Alexandria, Virginia, 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 appeal as untimely filed without a showing of good cause for the

delay. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous fin dings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner ’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 The agency imposed the appellant’s removal, effective September 16, 2016.

Initial Appeal File (IAF), Tab 1 at 30. In the removal letter, the agency informed

him that if he wished to file a Board appeal, he must do so within 30 days of the

effective date of the removal, or within 30 days of his receipt of th e agency’s

decision, whichever was later. Id. at 32. The appellant electronically filed the

instant appeal on November 15, 2016, acknowledged that it was untimely filed,

and asserted that it should be accepted for good cause shown on the basis of a

miscommunication with his attorney. Id. at 18, 34. In an initial decision, the

administrative judge dismissed the appeal as untimely filed without good cause

shown for the delay. IAF, Tab 8, Initial Decision (ID). The appellant has filed a

petition for review, and the agency has filed a response in opposition to the

appellant’s petition. Petition for Review (PFR) File, Tabs 1, 3.

¶3 Here, the appeal would have been due 30 days after the September 16, 2016

effective date of the removal, or on October 16, 2016. 5 C.F.R. § 1201.22(b).

However, because this date fell on a Sunday, the appeal was due on the next

business day, which was October 17, 2016. 5 C.F.R. § 1201.23. The appellant

did not electronically file his appeal until November 15, 2016. IAF, Tab 1. Thus,

as the administrative judge found, the appeal was 29 days late. ID at 3-4. The

appellant does not challenge this finding on review. PFR File, Tab 1 at 5.

Instead, he asserts that the administrative judge should have found that he

demonstrated good cause for his delayed filing. Id. at 7-11.

¶4 To determine whether an appellant has shown good cause for his

untimeliness, 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). In

determining whether the appellant has shown good cause, the Board has long held

that the appellant is responsible for the failure of his representative to submit a

timely filing. White v. Department of Justice, 103 M.S.P.R. 312, ¶ 12 (2006),

aff’d, 230 F. App’x 976 (Fed. Cir. 2007).

¶5 The administrative judge found that the appellant’s argument regarding a

miscommunication with his attorneys did not constitute good cause for waiving

the filing deadline because the agency informed the appellant of the filing

deadline, it was incumbent upon him to monitor the appeal process, and the re was

no indication from his attorneys that his appeal had been filed. ID at 6 -7. The

appellant asserts that he acted with due diligence by pointing to the following

unrebutted evidence: (1) on October 11, 2016, six days before his appeal was

due, he provided his removal letter to his attorney; (2) upon providing the

removal letter, he asked the attorney if he needed to do anything else, and she

told him that he did not; and (3) it did not become apparent to him that the appeal

had not been filed until after the attorney contacted him on November 9, 2016,

regarding filing a designation of representative form. PFR File, Tab 1 at 5, 7;

IAF, Tab 6 at 8-11.

¶6 An appellant has a personal responsibility to monitor the progress of his

appeal at all times and not to leave the matter entirely in the hands of his

representative. White, 103 M.S.P.R. 312, ¶ 12. Thus, absent a specific showing

that the appellant actively monitored the progress of his appeal but his

representative thwarted his diligent efforts to pursue the appeal, the appellant

cannot blame his representative’s alleged negligence in seeking to excuse a filing

delay. Id.

¶7 The agency notified the appellant of the filing deadline, and he does not

dispute that he was aware of the deadline. PFR File, Tab 1 at 5; IAF, Tab 1 at 32.

The record also reflects that the appellant did not actively monitor his appeal. In

his affidavit, the appellant indicated that when he emailed his attorney on

October 11, 2016, he was under the impression that she would file his appeal by

the deadline (October 17, 2016). IAF, Tab 6 at 8. He further stated that he did

not contact his attorneys or inquire about the status of his appeal by any means

until he responded to an email from one of the attorneys on November 10, 2016.

Id. Under these circumstances, his miscommunication with his attorneys does not

constitute good cause for the filing delay. 2 See White, 103 M.S.P.R. 312, ¶¶ 10,

13 (finding no good cause shown for the 5-day delay in filing the appeal because

the appellant did not show that he tried to contact his representative before the

filing deadline or otherwise make any effort to ensure that his appeal was filed on

time, he did not contact the Board to request an extension, and he did not explain

why his representative’s illness prevented him from filing on time); Strong v.

Department of the Navy, 86 M.S.P.R. 243, ¶¶ 4, 11-12 (2000) (finding that the

appellant did not establish good cause for the 12-day delay in filing his petition

for review because he initially discussed filing the petition with his attorney, he

As the administrative judge stated, even though the appellant ’s representatives appear

to claim responsibility for the untimely filing, this does not constitute good cause

because the appellant is personally responsible for prosecuting his appeal. ID at 7; see

Retzler v. Department of the Navy, 114 M.S.P.R. 361, ¶ 5 (2010).

contacted the attorney’s office to see if he needed to do anything else, and he

made no further attempts to contact his attorney before the filing deadline) .

¶8 We also agree with the administrative judge that the 29-day delay is

significant, and the appellant was not proceeding pro se, which are factors

weighing against a finding of good cause for the delay. ID at 7; see Laboy v. U.S.

Postal Service, 103 M.S.P.R. 570, ¶ 9 (2006) (finding that the appellant failed to

establish good cause for the untimely filing of her petition for revie w by almost

1 month because the delay was not minimal, she was represented by an attorney,

and she did not explain how her attorney’s injury and recuperation prevented her

from requesting an extension); De Vaughn v. U.S. Postal Service, 96 M.S.P.R.

427, ¶¶ 6, 8 (2004) (concluding that the appellant did not show good cause for the

over 1-month delay in filing his petition for review in part because he was

represented on review, even though he was pro se below); Edeburn v. U.S. Postal

Service, 95 M.S.P.R. 486, ¶¶ 15-16 (2004) (finding that the appellant did not

demonstrate good cause for the 8-day delay in filing her appeal when, among

other things, she was represented and received ample notice of the time

requirements for filing an appeal in the agency’s decision letter). Thus, we agree

with the administrative judge’s decision that the appellant has not demonstrated

good cause for his untimely appeal.

NOTICE OF APPEAL RIGHTS 3

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

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.

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:

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. 4 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