The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN OLIVA, DOCKET NUMBERS
Appellant, DA-1221-16-0199-W-1
DA-1221-15-0520-W-1
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency. DATE: May 5, 2023
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Oliva, Fair Oaks Ranch, Texas, pro se.
Melissa Lynn Binte Lolotai, Esquire, Denver, Colorado, for the agency.
Janet E. Harford, Esquire, Temple, Texas, 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, which
denied his request for corrective action in connection with his two individual
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
right of action (IRA) appeals, joined for adjudication. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed with
no good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 In an initial decision issued on January 13, 2017, the administrative judge
found that, while the appellant established the Board’s jurisdiction over the
joined IRA appeals, he failed to establish that he, in fact, made a protected
disclosure, and she, therefore, denied his request for corrective action. Oliva v.
Department of Veterans Affairs, MSPB Docket Nos. DA-1221-16-0199-W-1,
DA-1221-15-0520-W-1, Initial Appeal File (IAF), Tab 31, Initial Decision (ID) .
The administrative judge noted that the appellant had asserted that the personnel
actions at issue were also taken in response to the agency’s perception of him as a
whistleblower. She found, however, that he had failed to establish that he
exhausted his remedies with the Office of Special Counsel (OSC) on the issue of
whether the agency perceived him as a whistleblower and that therefore the Board
lacked jurisdiction over that claim. ID at 12 n.8. The administrative judge
notified the parties that the initial decision would bec ome final on February 17,
2017, if neither party filed a petition for review. ID at 17.
¶3 On December 18, 2018, the appellant filed a petition for review in which he
explained that, based on information he received from OSC in response to a
Freedom of Information Act request he had filed, he had just learned that the
initial decision in his IRA appeals “was issued in error.” Petition for Review
(PFR) File, Tab 1 at 4. The specific error, he asserted, was the administrative
judge’s determination that she lacked jurisdiction to consider his claim that the
agency perceived him as a whistleblower. Id. at 5. Based on that error, the
appellant explained, he was required to relitigate the matter before OSC and the
Board, and it took 2 years for him to get any relief, although he did not get full
relief because those who retaliated against him were not held fully accountable.
3
Id. at 7. The appellant stated that, because he did not have the evidence (OSC’s
correspondence) by the filing deadline, he did not realize the impact the initial
decision would have on him. Id. at 5. He asked that the initial decision be
vacated and that a subsequently issued initial decision issued by another
administrative judge granting him corrective action be made the Board’s final
decision on this matter. Id. at 6. With his petition for review, the appellant
submitted copies of his correspondence with OSC. Id. at 9-16.
¶4 The Office of the Clerk of the Board (Clerk) notified the appellant that the
petition for review appeared to be untimely filed because it was not postmarked
or received on or before February 17, 2017. PFR File, Tab 2. The Clerk afforded
the appellant an opportunity to file a motion to accept his filing as timely and/or
to waive the time limit for good cause and stated that such a motion must be
accompanied by a statement signed under penalty of perjury, or an affidavit, filed
on or before January 4, 2019. Id. at 2. In response, the appellant filed a
statement signed under penalty of perjury. PFR File, Tab 3.
ANALYSIS
¶5 The Board’s regulations require that a petition for review be filed within
35 days after the date of issuance of the initial decision, or, if a party shows that
he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The appellant does
not indicate that he received the January 13, 2017 initial decision more than
5 days after it was issued. Therefore, as stated in the initial decision, the petition
for review was due 35 days later, on February 17, 2017. ID at 17. The
appellant’s petition for review, filed on December 18, 2018, was more than
22 months late. PFR File, Tab 1.
¶6 The Board will waive the filing deadline for a petition for review upon a
showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
4
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
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether
a party has shown good cause, the Board will consider the length of the delay, th e
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
limit or unavoidable casualty or misfortune that similarly shows a causal
relationship to his ability 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).
¶7 In applying these factors to this case, we first find that , even though the
appellant is pro se, the length of the delay, 22 months, is particularly significan t.
See, e.g., Keys v. Office of Personnel Management, 113 M.S.P.R. 173, ¶ 7 (2010)
(finding that a filing delay of 17 months is not minimal). The fact that the
appellant did not realize what he describes as “the impact” of the “erred” initial
decision, PFR File, Tab 1 at 5, Tab 3 at 5, does not establish good cause for his
untimely filing. Brum v. Department of Veterans Affairs, 109 M.S.P.R. 129, ¶ 6
(2008) (finding that lack of familiarity with legal matters and Board procedures
did not establish good cause for the untimely filing of a petition for review). The
appellant has not presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the filing time limit or
unavoidable casualty or misfortune that similarl y shows a causal relationship to
his ability to timely file his petition. Miller v. Department of the Army,
112 M.S.P.R. 689, ¶ 13 (2009).
5
¶8 The appellant’s main argument in support of his motion to waive the filing
deadline is that, based on his communications from OSC, he now knows that the
initial decision was incorrectly decided. The discovery of new evidence may
establish good cause for the untimely filing of a petition for review “if the
evidence was not readily available before the close of the record below, and if it
is of sufficient weight to warrant an outcome different from that of the initial
decision.” Satterfield v. U.S. Postal Service, 80 M.S.P.R. 132, ¶ 5 (1998)
(quoting Boyd-Casey v. Department of Veterans Affairs, 62 M.S.P.R. 530, 532
(1994)). The correspondence from OSC, dated December 2018, is new in that it
postdates July 12, 2016, the close of the record below. However, it is not
material because it is not of sufficient weight to warrant an outcome different
from that of the administrative judge. An OSC employee’s opinion on an issue in
a case before the Board does not constitute binding precedent. Cf. Conway v.
Office of Personnel Management, 59 M.S.P.R. 405, 412 n.4 (1993) (finding that
an initial decision which reached the opposite result on the sam e issue that is
involved in a current Board appeal is not a matter for resolution by the Board).
Therefore, the evidence the appellant has proffered on review does not establish
good cause for the untimely filing of his petition for review.
¶9 In sum, the appellant has not shown that he exercised due diligence or
ordinary prudence under the circumstances, and his petition for review must be
dismissed. Palermo, 120 M.S.P.R. 694, ¶ 4.
¶10 Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown. This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for re view. The initial decision
remains the final decision of the Board regarding the joined IRA appeals.
6
NOTICE OF APPEAL RIGHTS 2
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 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:
2
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 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. 420 (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
8
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).
9
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. 3 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
3
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
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.
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.