The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSUE L. ECHEVARRIA, DOCKET NUMBER
Appellant, AT-0752-21-0244-I-1
v.
DEPARTMENT OF HOMELAND DATE: November 8, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
McRae Cleaveland , Esquire, and Michael Sheeter , Esquire, Dallas, Texas,
for the appellant.
Diana Espinosa , Esquire, Guaynabo, Puerto Rico, 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
affirmed the appellant’s removal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant filed the instant appeal challenging his removal. Initial
Appeal File (IAF), Tab 1. On August 17, 2021, the administrative judge issued
an initial decision that affirmed the appellant’s removal. IAF, Tab 30, Initial
Decision (ID). She found that the agency proved its charges, that the appellant
failed to prove his affirmative defense of a due process violation, and that the
penalty of removal was reasonable and promoted the efficiency of the service. ID
at 5-22. The initial decision informed the appellant how to file a petition for
review and stated that it would become final on September 21, 2021, unless
a petition for review was filed by that date. ID at 23.
¶3 The appellant, through his designated representative, filed a petition for
review on September 28, 2021. Petition for Review (PFR) File, Tab 1; IAF,
Tab 11. He does not dispute that his petition for review is 7 days late, but he
claims that he believed he had timely filed it and did not realize that it had not
been electronically filed through the Board’s e-Appeal system due to “some
technical issues.” PFR File, Tab 1 at 4. The agency filed a response, requesting
that the petition for review be dismissed as untimely filed without good cause
shown. PFR File, Tab 3 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision, or if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received 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 Board will waive the
time limit for filing a petition for review only upon a showing of good cause for
the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 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
3
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 his excuse and
the party’s 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. Id.; see 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).
¶5 As an e-filer, the appellant is deemed to have received the initial decision
on the date of electronic issuance, August 17, 2021. IAF, Tab 1 at 2, Tab 31 at 1;
see 5 C.F.R. § 1201.14(m)(2). The appellant filed his petition for review through
the Board’s e-Appeal system on September 28, 2021, 7 days past the
September 21, 2021 deadline set forth in the initial decision. ID at 23; PFR File,
Tab 1. Because the filing appeared untimely, the Board’s e-Appeal system
automatically generated questions concerning timeliness, to which the appellant
responded that he believed he had timely filed it and did not realize his petition
was untimely due to unspecified technical difficulties. PFR File, Tab 1 at 4.
¶6 The Office of the Clerk of the Board issued an acknowledgment letter,
instructing the appellant that an untimely filed petition for review must be
accompanied by a motion to either accept the filing as timely, and/or waive the
time limit for good cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)).
The letter further instructed the appellant that if he wished to file the
aforementioned motion, he must include a statement signed under penalty of
perjury or an affidavit showing that the petition was either timely filed or good
cause existed for the untimeliness. Id. at 1-2. It also included a form for the
motion, sworn statement, and affidavit and provided a deadline of October 15,
2021. Id. at 2, 7-8. Despite the instructions contained in the acknowledgment
4
letter, the appellant did not submit a sworn statement, affidavit, or further
explanation for the untimely filing.
¶7 As noted above, the appellant claims that he believed that he had timely
submitted his petition for review and did not realize that the petition for review
had not been submitted due to “some technical issues.” PFR File, Tab 1 at 4.
Under limited circumstances, the Board will excuse delays in filing caused by
difficulties encountered with the e-Appeal system. See Salazar v. Department of
the Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing a filing delay when the
appellant alleged that he attempted to electronically file his petition for review on
time and the e-Appeal system showed that the appellant had, in fact, accessed the
system prior to the date that his petition was due; it was possible to exit the
system without receiving a clear warning that he had not yet filed his pleading;
and once he became aware that his petition had not been filed, the appellant
contacted the Board and submitted a petition for review that included
an explanation of his untimeliness). However, we find that the appellant’s failure
to complete his submission is not excusable here.
¶8 According to the Board’s e-Appeal logs, the appellant accessed the system
to start the process of filing his petition for review at 8:08 p.m. on the date that it
was due, September 21, 2021. When an individual saves a draft petition for
review in the e-Appeal system, the system automatically generates an email to
him on each of the following 3 calendar days warning that the pleading has not
yet been submitted. Palermo, 120 M.S.P.R. 694, ¶ 7. After the appellant saved
his draft petition on September 21, 2021, he would have received reminders on
September 22, 23, and 24, 2021, that his petition had not been filed. 2 Due
diligence and ordinary prudence required that the appellant follow up to
determine the status of the petition for review when he received those reminders.
However, he did not submit the petition for review until September 28, 2021.
2
September 21, 2021, was a Tuesday. Thus, the appellant received the email about the
petition for review not having been filed with the Board on 3 business days.
5
¶9 In addition, the appellant was represented throughout the appeal, and he has
not shown any circumstances beyond his control, such as unavoidable casualty or
misfortune, which affected his ability to comply with the time limits. Nothing in
the Board’s e-Appeal logs suggests that there were problems in the e -Appeal
system during the relevant timeframe. Under the circumstances of this case,
we find that the appellant has failed to establish good cause for his delay in filing
his petition for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to
excuse a 7-day delay for claimed difficulties with e-Appeal where the appellant
did not receive a notification advising him that a pleading had been filed and
he was aware that his pleading had not been successfully filed).
¶10 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 appellant’s removal.
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
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.
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
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
7
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
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:
8
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. 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).
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.
9
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.
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.