The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMI S. ELLINPORT, DOCKET NUMBER
Appellant, NY-1221-17-0033-W-1
v.
DEPARTMENT OF VETERANS DATE: October 28, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jessica Buchser, Huntington Station, New York, for the appellant.
Michael J. Berger, Esquire, Brooklyn, New York, for the agency.
Steven A. Snyder, Northport, New York, 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 individual right of action (IRA) appeal as settled. For the reasons
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 appellant, a WG-1 Housekeeping Aide, timely filed an IRA appeal
alleging that she was reassigned to a different unit as a result of her
whistleblowing activity concerning allegations of patient abuse by nursing staff.
Initial Appeal File (IAF), Tab 1, Tab 5 at 7. During the pendency of that appeal,
the parties reached a settlement agreement, which provided that the appell ant
would withdraw her Board appeal in exchange for the agency paying her $5,000
within 60 days of the date of the settlement agreement, reassigning her to a GS -4
Medical Support Assistant position, and providing additional training to nursing
staff regarding patient abuse. IAF, Tab 17 at 4-6. 2 The administrative judge then
issued an initial decision dismissing the appellant’s appeal as settled. IAF,
Tab 18, Initial Decision (ID) at 1-2. Specifically, the administrative judge found
that the Board had jurisdiction over the appellant’s appeal, that the settlement
agreement was lawful on its face, and that the parties freely entered into the
agreement. ID at 2; see Delorme v. Department of the Interior, 124 M.S.P.R.
123, ¶¶ 10, 14-21 (2017) (noting that the Board will incorporate a settlement
2
The initial decision dismissing the appellant’s IRA appeal as settled and the
compliance initial decision denying the appellant’s petition for enforcement both state
that the operative settlement agreement is located in the appeal file at Tab 16. IAF,
Tab 18, Initial Decision (ID) at 2; Ellinport v. Department of Veterans Affairs, MSPB
Docket No. NY-1221-17-0033-C-1, Tab 7, Compliance Initial Decision at 1-4. Tab 16
contains two different settlement agreements, each with different essential terms, and
both of which are unsigned. Compare IAF, Tab 16 at 2-4, with id. at 5-7. Conversely,
Tab 17 contains a settlement agreement that is identical to the latter of the two
agreements found in Tab 16 but has a different date, and is signed and dated by both
parties. IAF, Tab 17 at 4-6. Thus, it appears that the administrative judge intended to
cite to Tab 17 as the enforceable agreement. Any error in this misstatement was
inadvertent and harmless and did not affect the outcome of the decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory
error that was not prejudicial to a party’s substantive rights provided no basis for
reversal of an initial decision).
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agreement into the record and enforce its terms if the parties intended that the
agreement be enforced by the Board and the agreement is lawful on its face and
was freely reached and understood by the parties). She therefore accepted the
agreement into the record for enforcement purposes and dis missed the appeal. ID
at 2.
¶3 The appellant subsequently sent a letter dated April 2, 2017 , to the
administrative judge, in which she argued that the agency breached the settlement
agreement by paying the appellant the agreed-upon $5,000 amount by direct
deposit into her bank account instead of by physical check, and stated that she
wanted to “rescind” the settlement agreement, which the administrative judge
docketed as a petition for enforcement. Ellinport v. Department of Veterans
Affairs, MSPB Docket No. NY-1221-17-0033-C-1, Compliance File (CF), Tab 1.
By decision dated May 25, 2017, the administrative judge denied the appellant’s
petition for enforcement, concluding that nothing in the agreement specified the
manner by which the appellant would be paid, that she had not disputed that the
agency was otherwise in compliance with the terms of the agreement, and
therefore, that the agency had not breached the agreement. CF, Tab 7,
Compliance Initial Decision (CID) at 4. As explained in greater detail below, the
appellant did not file a petition for review of the compliance initial decision, and
that decision became final on June 29, 2017. CID at 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 On June 29, 2017, the appellant filed a pleading with the administrative
judge bearing the docket number of both the initial appeal and the compliance
matter. Petition for Review (PFR) File, Tab 1. The field office forwarded the
matter to the Office of the Clerk of the Board (Clerk’s Office), the Clerk’s Office
contacted the appellant by telephone regarding her submission, and the appellant
confirmed that it was her intention that the filing be treated as a petition for
review of the administrative judge’s March 2, 2017 initial decision dismissing her
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IRA appeal as settled. PFR File, Tab 2 at 1. The Clerk’s Office documented this
conversation as part of a July 13, 2017 notice to the appellant. 3 Id.
¶5 In the July 13 notice, the Clerk’s Office observed that the appellant’s
petition, which was postmarked June 29, 2017, was untimely filed, and instructed
the appellant to file a motion requesting that the Board accept her petition as
timely, or as untimely filed with good cause for the delay. Id. at 2. In response,
the appellant submitted a narrative reply as well as U.S. Postal Service tracking
information showing that the delivery of a document was unsuccessfully
attempted at the Board’s New York Field Office on April 5, 2017. PFR File,
Tab 3 at 1-4. However, the document the appellant references in her motion is
the letter she sent to the administrative judge dated April 2, 2017, which the
administrative judge accepted and fully adjudicated as a petition for enforcement.
CF, Tab 1 at 3-4; CID.
¶6 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows she received the initial decision more than 5 days after it was issued,
within 30 days of her receipt of the decision. 5 C.F.R. § 1201.114(e). The Board
will waive the filing deadline for a petition for review only upon a showing of
good cause for the untimely filing. Palermo v. Department of the Navy,
120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). 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. Palermo, 120 M.S.P.R. 694, ¶ 4.
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s showing of
due diligence, whether she is proceeding pro se, and whether she has presented
3
The notice informed the agency that it could respond to the appellant’s submission.
PFR File, Tab 2 at 1. The agency has filed a response. PFR File, Tab 4. The appellant
has not complained that the Clerk’s Office mischaracterized her intentions in the notice.
5
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 shows a causal relationship to her inability to timely file her
petition. Id.
¶7 The initial decision dismissing the appellant’s IRA appeal as settled stated
that the initial decision would become final on April 6, 2017, unless a petition for
review was filed by that date. ID at 3. The initial decision also stated that if the
initial decision was received more than 5 days after the date of issuance, a
petition for review could be filed within 30 days after the date of receipt of the
initial decision. Id. The initial decision also set forth the Office of the Clerk of
the Board’s mailing address for filing a petition for review and that a petition for
review could be filed through the Board’s e-Appeal system and by facsimile
transmittal. Id. at 4. Despite these clear instructions, the appellant did not file
her petition for review until June 29, 2017. PFR File, Tab 1.
¶8 As noted, the appellant filed her petition for review more than 2 months
after the filing deadline. The Board has regularly held that a delay of over
2 months is not minimal, even when the appellant is proceeding pro se. See, e.g.,
Winfrey v. National Archives & Records Administration , 88 M.S.P.R. 403, ¶ 6
(2001) (finding that a 48-day delay in filing a petition for review is not minimal
and does not provide a basis for waiving the filing deadline); Gaines v. U.S.
Postal Service, 96 M.S.P.R. 504, ¶ 7 (2004) (stating that a delay of 37 days is not
minimal). Additionally, in her motion to accept the untimely filing, the appellant
did not offer any explanation for the more than 2-month delay. PFR File, Tab 3
at 1-2.
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay. 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 as settled.
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NOTICE OF APPEAL RIGHTS 4
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 cl aims 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:
4
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.
7
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 partic ular
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
8
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 the ir 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
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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. 5 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
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
5
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.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.