Opinion

Nadine Griffin v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Nov 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NADINE YVONNE GRIFFIN, DOCKET NUMBER

Appellant, AT-1221-18-0293-W-1

DEPARTMENT OF VETERANS DATE: November 28, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nadine Yvonne Griffin , Auburn, Alabama, pro se.

Tsopei T. Robinson , Esquire, West Palm Beach, Florida, 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

dismissed her request for corrective action in an individual right of action (IRA)

appeal as untimely filed. 2 Generally, we grant petitions such as this one only in

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

The appellant’s June 11, 2018 petition for review of the initial decision dismissing for

lack of jurisdiction her claim that she involuntarily resigned from the agency will be

addressed in a separate decision. Griffin v. Department of Veterans Affairs , MSPB

Docket No. AT-0752-18-0292-I-1, Petition for Review File, Tab 1.

the following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

or regulation or the erroneous application of the law to the facts of the case; the

administrative judge’s rulings during either the course of the appeal or the initial

decision were not consistent with required procedures or involved an abuse of

discretion, and the resulting error affected the outcome of the case; or new and

material evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 On petition for review, the appellant does not challenge the administrative

judge’s finding that her IRA appeal was untimely filed. See Initial Appeal

File (IAF), Tab 14, Initial Decision (ID) at 3. She argues that the administrative

judge (1) denied her discovery that would have supported her explanation for

failing to timely file an appeal; (2) mischaracterized her argument that the agency

concealed the outcome of the Administrative Investigation Board investigation of

her conduct; and (3) incorrectly applied equitable tolling. Petition for Review

(PFR) File, Tab 1 at 5-7. We have reviewed the appellant’s arguments and have

concluded that she has not shown error in the administrative judge’s

determination that the Board does not have the authority to waive the statutory

time limit to file an IRA appeal, and the appellant did not establish that unusual

circumstances warranted the application of equitable tolling to the time limit. ID

at 2-4; see 5 U.S.C. § 1214(a)(3)(A); Heimberger v. Department of Commerce,

121 M.S.P.R. 10, ¶¶ 9-10 (2014) (providing that the filing deadline set forth in

5 U.S.C. § 1214(a)(3)(A) may be subject to equitable tolling in unusual

circumstances, such as when the appellant has been induced or tricked by her

adversary’s misconduct into allowing the deadline to pass, and generally requires

a showing that the appellant has been pursuing her rights diligently and some

extraordinary circumstances stood in her way); 5 C.F.R. § 1209.5(a)-(b).

¶3 On review, the appellant also provides two sets of email correspondence,

dated August 28, 2017, and September 18, 2017, that she asserts were not

available at the time she filed her appeal. PFR File, Tab 1 at 6, 18-26. Under

5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for

the first time with the petition for review absent a showing that it was unavailable

before the record was closed despite the party’s due diligence. Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not explained why

this evidence was unavailable before the record below closed; thus, we need not

consider it. Even if we were to consider the newly submitted evidence, the

September 18, 2017 correspondence indicates that the appellant believed that, at

the time of the correspondence, the agency was considering disciplinary action

against her, which undercuts her argument that the agency concealed its intention

to propose disciplinary action against her, causing her to miss the October 2017

deadline to file an IRA appeal. PFR File, Tab 1 at 6, 18-20. Additionally, the

discovery of new evidence generally does not constitute the type of extraordinary

circumstances that warrants tolling a statutory deadline, especially where, as here,

there is no indication that the evidence was previously unavailable because the

agency improperly concealed it. Heimberger, 121 M.S.P.R. 10, ¶ 11.

Accordingly, the initial decision dismissing the IRA appeal as untimely filed is

affirmed.

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

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.

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:

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

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. 4 The court of appeals must receive your petition for

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

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