Opinion

Cindy Dabner v. Environmental Protection Agency

Court: Merit Systems Protection Board
Filed: May 1, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.2%

finding good cause to excuse a 2-day filing delay that was caused by the pro se appellant’s reasonable misunderstanding of ambiguous filing instructions

How later courts described this case

finding good cause to excuse a 2-day filing delay that was caused by the pro se appellant’s reasonable misunderstanding of ambiguous filing instructions

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CINDY M. DABNER, DOCKET NUMBERS

Appellant, CH-0752-18-0572-I-1

CH-1221-19-0175-W-1

ENVIRONMENTAL PROTECTION

AGENCY, DATE: May 1, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.

Debra K. Smith, Esquire, and Leora Tyree, Esquire, Chicago, Illinois, for

the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision affirming

her removal and a petition for review of the initial decision dismissing her

individual right of action (IRA) appeal for lack of jurisdiction. We JOIN 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

appeals under 5 C.F.R. § 1201.36(b) because doing so will expedite processing

without adversely affecting the interests of the parties. For the reasons set forth

below, the appellant’s petitions for review are DISMISSED as untimely filed

without good cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

¶2 On September 10, 2018, the appellant filed an appeal of her removal with

the Board’s Central Regional Office. Dabner v. Environmental Protection

Agency, MSPB Docket No. CH-0752-18-0572-I-1, Appeal File (I-1 AF), Tab 1.

On January 29, 2019, during the pendency of her removal appeal, the appellant

filed an IRA appeal with the Central Regional Office. Dabner v. Environmental

Protection Agency, MSPB Docket No. CH-1221-19-0175-W-1, Appeal File

(W-1 AF), Tab 1. The appellant registered as an e-filer in both appeals. I-1 AF,

Tab 1 at 2; W-1 AF, Tab 1 at 2.

¶3 After the records closed, on May 13, 2019, the administrative judge issued

initial decisions in both appeals. I-1 AF, Tab 70, Initial Decision (I-1 ID);

W-1 AF, Tab 29, Initial Decision (W-1 ID). She affirmed the agency’s removal

action on the merits, I-1 ID at 1, 71, and she dismissed the IRA appeal for lack of

jurisdiction, W-1 ID at 1-2, 25. The initial decisions notified the appellant of her

appeal rights, including her right to file a petition for review with the Board.

I-1 ID at 71-79; W-1 ID at 26-33. Each initial decision also notified the appellant

that, unless she received the decision more than 5 days after it was issued, the

deadline for filing a petition for review would be June 17, 2019. I-1 ID at 71;

W-1 ID at 26. The initial decisions were served electronically on both the

appellant and her representative the day they were issued. I-1 AF, Tab 71;

W-1 AF, Tab 30.

¶4 On June 18, 2019, at 12:57 a.m. Eastern Time, the appellant filed a petition

for review of the initial decision in the removal appeal. Dabner v. Environmental

Protection Agency, MSPB Docket No. CH-0752-18-0572-I-1, Petition for Review

File (I-1 PFR File), Tab 1 at 2, Tab 2 at 5. Later on June 18, 2019, at 12:59 a.m.

Eastern Time, the appellant filed a petition for review of the initial decision in the

IRA appeal. Dabner v. Environmental Protection Agency, MSPB Docket

No. CH-1221-19-0175-W-1, Petition for Review File (W-1 PFR File), Tab 1.

¶5 The Clerk of the Board notified the appellant that her petitions appeared to

be untimely filed and directed her to show good cause for the delay. I -1 PFR

File, Tab 1 at 2; W-1 PFR File, Tab 1 at 3. The appellant merely responded

“Eastern standard time v. Central” and “East v central time” respectively. 2

I-1 PFR File, Tab 1 at 2; W-1 PFR File, Tab 1 at 4. The Clerk of the Board then

notified the appellant of the applicable regulation, which states that “[a]ll

pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the

timeliness of a pleading will be determined based on the time zone from which

the pleading was submitted.” I-1 PFR File, Tab 1 at 2; 5 C.F.R. § 1201.14(m).

The appellant subsequently explained, in the context of her removal appeal, that:

[T]he original PFR was submitted from Philadelphia on June 18,

2019 at 12:57 AM, EST; thus the time stamp is one hour ahead of the

Central Time, where the Board’s Central Regional Office is located

and to which this appeal belongs. The original PFR was time

stamped on the Eastern Standard Time which is one hour ahead of

the Central Standard Time, which is controlling.

I-1 PFR File, Tab 2 at 5. The agency has responded to the petitions for review,

opposing them on both timeliness and substantive grounds. I -1 PFR File, Tab 4;

W-1 PFR File, Tab 3.

ANALYSIS

¶6 A petition for review must be filed within 35 days after the initial decision

is issued or, if the appellant shows that she received the initial decision more than

5 days after it was issued, within 30 days after the date of receipt. Williams v.

We take official notice that Daylight Saving Time rather than Standard Time was in

effect on the dates in question. See 5 C.F.R. § 1201.64.

Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R.

§ 1201.114(e).

¶7 In this case, we find the petitions for review were untimely filed. The

appellant is a registered e-filer, and the initial decisions were served on her and

her representative electronically on May 13, 2019—the date that they were

issued. I-1 AF, Tab 1 at 2, Tab 71; W-1 AF, Tab 1 at 2, Tab 30; see 5 C.F.R.

§ 1201.4(i)-(n). Therefore, the filing deadline was June 17, 2019. See 5 C.F.R.

§ 1201.114(e) (setting forth a 35-day deadline for filing a petition for review).

As indicated by the time stamps, the appellant filed her petitions for review on

June 18, 2019. I-1 PFR File, Tab 1 at 2, Tab 2 at 5; W-1 PFR File, Tab 1; see

5 C.F.R. § 1201.4(l) (“The date of filing by e-filing is the date of electronic

submission.”). Under the Board’s regulations, the time stamp might not be

controlling if the petitions were filed from outside the Eastern time zone.

5 C.F.R. § 1201.14(m). However, the petitions for review in this case were filed

from Philadelphia, Pennsylvania, which is within the Eastern time zone. I -1 PFR

File, Tab 2 at 5; see 5 C.F.R. § 1201.64. Although the appeals originated outside

the Eastern time zone at the Board’s Central Regional Office in Chicago, Illinois,

this fact is immaterial under the Board’s regulations. 3 Because the petitions for

review were filed after midnight on June 18, 2018, based on the location from

which they were submitted, we find that they were both untimely by

approximately 1 hour.

¶8 The Board will waive the filing deadline for a petition for review only upon

a showing of good cause for the filing delay. Lawson v. Department of Homeland

Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R. §§ 1201.12, 1201.114(g). To

establish good cause for an untimely filing, a party must show that she exercised

due diligence or ordinary prudence under the particular circumstances of her case.

Even if the location of the office receiving the filing were material, a petition for

review of an initial decision is filed with the Clerk of the Board, located in the Eastern

time zone at the Board’s Washington, D.C. Headquarters. 5 C.F.R. § 1201.114(d).

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

which similarly shows a causal relationship to her inability to timely file her

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).

¶9 In this case, the length of the filing delay was minimal, approximately

1 hour in each case. See Gaetos v. Department of Veterans Affairs, 121 M.S.P.R.

201, ¶ 6 (2014) (finding a 3½-hour filing delay to be minimal). However, the

Board has consistently denied a waiver of its filing deadline in cases where the

delay is minimal and a good reason for the delay is not shown. Id. The apparent

cause of the delay was that the appellant’s experienced non -attorney

representative misunderstood the Board’s regulations. However, a

representative’s miscalculation of the filing deadline generally does not constitute

good cause for a filing delay. Day v. Department of Housing and Urban

Development, 50 M.S.P.R. 680, 682 n.2 (1991), aff’d, 975 F.2d 870 (Fed. Cir.

1992) (Table). The regulation at issue in 5 C.F.R. § 1201.14(m) is clear on its

face, and the appellant is responsible for her representative’s failure to understand

it. See McBurnett v. Department of the Army, 37 M.S.P.R. 395, 397 (1988); cf.

Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1581-84 (Fed. Cir. 1994)

(finding good cause to excuse a 2-day filing delay that was caused by the pro se

appellant’s reasonable misunderstanding of ambiguous filing instructions).

¶10 Accordingly, we dismiss the petitions for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petitions for review. The initial decisions remain the final decisions of the

Board regarding IRA jurisdiction and the removal.

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 claims and carefully follow all

filing time limits and requirements. Failure to file within the ap plicable 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 revie w 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. 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