The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. HOLT, DOCKET NUMBER
Appellant, SF-0714-19-0728-I-1
v.
DEPARTMENT OF VETERANS DATE: April 12, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael J. Holt, Fayetteville, Georgia, pro se.
Anna Jang, San Francisco, California, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal by the agency. For the 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).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The administrative judge issued an initial decision on January 31, 2020,
affirming the appellant’s removal from his position as a Motor Vehicle Operator .
Initial Appeal File, Tab 30, Initial Decision (ID). The initial decision specifically
stated that the deadline to file a petition for review was March 6, 2020, and
provided information on how to file a petition for review. ID at 25 -29.
¶3 On September 20, 2021, the appellant sent a letter to the Office of the Clerk
of the Board stating that he had been informed that his petition for review, which
he had previously hand-delivered to the Western Regional Office, had gone
missing and was never sent to the Clerk of the Board. 2 Petition for Review (PFR)
File, Tab 1 at 1, 8. In support of his statement, he attached a letter from the
Western Regional Office, dated September 15, 2021, which stated that the office
had no record of having received the petition for review that he allegedly
hand-delivered to the administrative judge’s paralegal “sometime in 2020.” Id.
at 2. The appellant also attached a document entitled “Appeal, May 2020,” which
contained arguments related to his case. Id. at 3-6.
¶4 The Acting Clerk of the Board notified the appellant that, because he filed
his petition for review after March 6, 2020, i.e., over 35 days following the
issuance of the January 31, 2020 initial decision, it was untimely filed. PFR File,
Tab 2 at 1. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely filed to be accompanied by a
motion to accept the filing as timely and/or to waive the time limit for good
cause, and set the deadline for the appellant to file this motion as October 16,
2021. Id. at 1-2. On October 29, 2021, the appellant filed his motion to accept
2
The Board received the appellant’s submission on September 30, 2021, but the
envelope and tracking number provided by the appellant establishes that it was mailed
on September 20, 2021. PFR File, Tab 1 at 1, 8. Pursuant to 5 C.F.R. § 1201.4(l), the
date of filing by mail is determined by the postmark date, and thus, the date of the
petition for review is September 20, 2021.
3
the filing as timely and/or to waive the time limit for good cause, attaching an
unsigned statement claiming that he had hand-delivered his petition for review to
the Washington Regional Office on March 4, 2020. PFR File, Tab 5 at 3-4, 20.
The agency has responded in opposition to the appellant’s petition for review.
PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶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 appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive this time limit only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for
the untimely filing of a petition, a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 4 (2009); 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 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. Rivera,
111 M.S.P.R. 581, ¶ 4; 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).
¶6 The appellant has asserted that his petition for review was timely filed
because he hand-delivered it to the administrative judge’s clerk on March 4,
2020. PFR File, Tab 5 at 3. It is the appellant’s burden of proof, by a
preponderance of the evidence, to establish the timeliness of his petition for
4
review. 5 C.F.R. § 1201.56(b)(2)(B); see Gaetos v. Department of Veterans
Affairs, 121 M.S.P.R. 201, ¶ 6 (2014) (stating that it is the appellant’s burden of
proof to establish timeliness of a petition for review). The appellant has not
established that he filed his petition for review on March 4, 2020. As an initial
matter, the Western Regional Office stated that it had no record of receiving the
appellant’s petition for review, which it would have had, as its normal practice is
to scan documents intended for another Board office and forward it to the Office
of the Clerk of the Board upon receipt. PFR File, Tab 1 at 2. However, even if
the appellant did hand-deliver his petition for review to the Western Regional
Office, the record undermines his claim that he did so on March 4, 2020. First,
his September 20, 2021 submission included a document entitled “Appeal,
May 2020,” indicating that his petition for review was not finalized until
May 2020, at least two months after March 4, 2020. Id. at 3-6. Furthermore, the
first time the appellant asserted that he delivered his petition for review on
March 4, 2020, was in response to the Board’s acknowledgment letter notifying
him that his petition for review may be dismissed as untimely filed. PFR File,
Tab 2 at 1-2, Tab 5 at 3. In fact, he did not mention March 4, 2020 as the date of
delivery in his September 20, 2021 submission, and it appears that he informed
the Western Regional Office that he had delivered the petition for review
“sometime in 2020.” PFR File, Tab 1 at 1-2. Therefore, given the above, the
appellant has not established by preponderant evidence that he filed his petition
for review on March 4, 2020.
¶7 Instead, we find that the appellant filed his petition for review on
September 20, 2021, and he has not established good cause for the delay in filing.
PFR File, Tab 1 at 8. The deadline for filing a petition for review in this appeal
was March 6, 2020. ID at 25. The appellant filed his petition for review over
18 months later, on September 20, 2021. Such a filing delay is significant. Scali
v. Office of Personnel Management, 106 M.S.P.R. 409, ¶¶ 6, 8 (2007) (finding a
5
filing delay of 1 year was significant); Little v. Government Printing Office,
99 M.S.P.R. 292, ¶ 9 (2005) (finding an approximately 18-month filing delay was
significant). We recognize that the appellant is pro se, but the assertions in his
filings do not offer a persuasive excuse, show that he acted with due diligence, or
set forth circumstances beyond the appellant’s control that affected his ability to
comply with the filing limit. PFR File, Tab 1 at 1, Tab 5 at 3 -4. Specifically,
assuming the appellant believed he submitted his petition for review in 2020,
despite not receiving an acknowledgment order from the Clerk of the Board, he
did not contact the Board regarding the status of his petition until on or around
September 15, 2021. PFR File, Tab 1 at 2. Furthermore, we note that the
appellant submitted his motion to accept the petition for review as timely and/or
waive the time limit for good cause 13 days after the deadline set forth by the
Acting Clerk in the acknowledgment letter. PFR File, Tab 2 at 2, Tab 5 at 20.
Therefore, even though he was on notice that his petition for review may be
dismissed as untimely, he still failed to meet the deadline s set forth by the Board,
indicating a pattern of a lack of due diligence and ordinary prudence. Thus, we
do not find that the appellant has established good cause for the delay in filing.
¶8 Accordingly, we dismiss the petition for review as untimely filed. 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 removal 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
3
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.
6
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 bel ow 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 partic ular
7
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.
8
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 challe nge 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 eit her with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
9
competent jurisdiction. 4 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
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.
10
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.