Opinion

Frederick Fair v. Department of Defense

Court: Merit Systems Protection Board
Filed: Oct 26, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FREDERICK FAIR, DOCKET NUMBER

Appellant, DC-1221-16-0139-W-1

DEPARTMENT OF DEFENSE, DATE: October 26, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Frederick Fair, Alexandria, Virginia, pro se.

Michael J. Buxton and William R. Kraus, 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 individual right of action (IRA) appeal for lack of jurisdiction. For

the reasons set forth below, we DISMISS the petition for review as untimely filed

without good cause shown for the delay. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administrative judge dismissed the appellant’s IRA appeal for lack of

jurisdiction by initial decision dated October 18, 2016. Initial Appeal File,

Tab 24, Initial Decision (ID) at 1, 7. The administrative judge informed the

parties that her decision would become a final decision of the Board on

November 22, 2016, unless either party filed a petition for revie w by that date.

ID at 7.

¶3 On December 2, 2016, the Board received the appellant’s petition for

review, sent by facsimile, challenging the initial decision. 2 Petition for Review

(PFR) File, Tab 1. The Clerk of the Board issued a notice stating that the petition

was untimely because it was not postmarked or received by the Board on or

before November 22, 2016, and affording the appellant the opportunity to file a

motion, supported by a statement signed under penalty of perjury or an affidavit,

showing that the petition was timely or that the time limit should be waived for

good cause. PFR File, Tab 2. The appellant filed a Motion for Extension of Time

to File a Petition for Review, “sworn to under penalty of perjury.” PFR File,

Tab 3. The agency filed a response to the petition for review, arguing, inter alia,

that it should be dismissed as untimely filed. PFR File, Tab 4.

ANALYSIS

¶4 The Board’s regulation governing the time for filing a petition for review

states as follows:

Any petition for review must be filed within 35 days after the date of

issuance of the initial decision or, if the petitioner shows that the

initial decision was received more than 5 days after the date of

issuance, within 30 days after the date the petitioner received the

initial decision . . . If the petitioner is represented, the 30-day time

The petition for review was filed by the appellant’s representative, who represented

him below. Six months later, after the close of the record on review, the representative

withdrew his appearance. Petition for Review (PFR) File, Tab 5.

period begins to run upon receipt of the initial decision by either the

representative or the petitioner, whichever comes first.

5 C.F.R. § 1201.114(e). The appellant does not allege that he received the initial

decision more than 5 days after its issuance date. As he did not file his

submission until December 2, 2016, it was filed 10 days late.

¶5 The Board will waive its time limit only upon a showing of good cause for

the delay in filing. Washington v. Department of the Navy, 101 M.S.P.R. 258,

¶ 12 (2006). To establish good cause for an untimely filing, the appellant must

show that he 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). The Board will consider the length of the delay, the

reasonableness of the appellant’s excuse and his showing of due diligence,

whether he is proceeding pro se, and whether he has presented evidence of

circumstances beyond his control that affected his ability to comply with the time

limit or of unavoidable casualty or misfortune that prevented him from timely

filing his petition for review. Wyeroski v. Department of Transportation,

106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed. Cir. 2007).

¶6 Absent other factors showing good cause, the Board has declined to excuse

even delays that are not particularly lengthy. See, e.g., Melendez v. Department

of Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009) (declining to waive the filing

deadline for a 3-day delay). The appellant was not proceeding pro se and has

presented no evidence of circumstances beyond his control that affected his

ability to comply with the time limits or of unavoidable casualty or misfortune

that prevented him from timely filing his petition for review. In his motion for an

extension, the appellant’s then-representative states that he became sick on

November 23, 2016, the date he states the petition for review was due. PFR File,

Tab 3. In fact, as noted, the petition for review was actually due by

November 22, 2016. ID at 7. Therefore, to the extent the then-representative was

ill after the due date, any such illness was of no consequence because the filing

date already had passed. The representative also claims that, because of his

continued discomfort, he had difficulty locating the Board’s facsimile number,

and so he “waited” until November 27, 2016, also after the filing deadline, to

email the petition and that, after being advised that the Board does not accept

such pleadings, 3 he faxed the petition for review on December 3, 2016. 4 PFR

File, Tab 3. The appellant’s then-representative has not explained when, during

the 30-day filing period, he completed work on the petition for review. In any

event, he did not exercise due diligence in waiting to file the petition until after

the filing deadline had passed.

¶7 In sum, we find that the appellant has failed to show that he exhibited due

diligence or ordinary prudence in filing his petition for review. Accordingly, we

find no good cause for waiving the filing deadline and dismiss the petition for

review as untimely filed.

¶8 This is the final order of the Merit Systems Protection Board concerning the

timeliness of the appellant’s petition for review. The initial decision will remain

the final decision of the Board regarding the dismissal o f the appellant’s IRA

appeal for lack of jurisdiction.

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

The Board’s regulations clearly provide that filings must be filed by commercial or

personal delivery, by facsimile, by mail, or by electronic filing. 5 C.F.R.

§ 1201.114(d).

As noted, the Board received the faxed petition on December 2, 2016.

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.

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:

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

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.

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