Opinion

Robert Kennedy v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT L. KENNEDY, DOCKET NUMBER

Appellant, SF-3330-16-0380-I-1

DEPARTMENT OF VETERANS DATE: April 10, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Robert L. Kennedy , Honolulu, Hawaii, pro se.

Reza Behinia , Los Angeles, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his Veterans’ Employment Opportunity Act (VEOA) appeal for failure

to prosecute, with prejudice and without holding a hearing. 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

Consistent with the notice provided therein, the initial decision became

final on October 27, 2016, after neither party filed a petition for review by that

date. Initial Appeal File (IAF), Tab 13, Initial Decision (ID) at 3. On March 5,

2018, the appellant filed an unsworn pleading, which he styled as a request for

“Reopening An Appeal Dismissed Without Prejudice.” Petition for Review (PFR)

File, Tab 1 at 3. On review, he contends that he “was never served any notice to

attend anything else in the case,” or “anything [else] from [the Board],”

apparently because he was incarcerated in July 2016, and that he is “just now

looking into the case.” Id. He also alleges that “the VA [told him] not to worry

about anything else” because “they have favored [him].” Id.

In an acknowledgment letter, the Clerk of the Board explained to the

appellant that his petition appeared to be untimely and that his appeal may be

dismissed on that basis if he did not submit a motion for waiver of the time limit

and a sworn statement or affidavit explaining why there is good cause for the

delay. PFR File, Tab 2 at 2-3. The Clerk also enclosed a copy of the Board’s

form “Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set

Aside the Time Limit.” Id. at 8-9. Neither party has responded to the Clerk’s

acknowledgment letter.

DISCUSSION OF ARGUMENTS ON REVIEW

The Board treats a request to reopen an initial decision that became final

when neither party petitioned for review as an untimely filed petition for review.

See Valdez v. Office of Personnel Management, 103 M.S.P.R. 88, ¶ 4 (2006).

Thus, we consider the appellant’s arguments on review insofar as they relate to

the timeliness of his petition for review.

A petition for review must be filed within 35 days after the date of issuance

of the initial decision or within 30 days after the date that the appellant received

the initial decision if he shows that he received the initial decision more than

5 days after it was issued. 5 C.F.R. § 1201.114(e). The appellant has not shown

that he complied with those time limits. Although he claims he was “never

served with anything,” PFR File, Tab 1 at 3, Board documents served

electronically on registered e-filers are deemed received on the date of electronic

submission, regardless of whether they were in fact received, Lima v. Department

of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006); 5 C.F.R. § 1201.14(m)(2). Thus,

as a registered e-filer, the appellant is deemed to have received the initial

decision on September 22, 2016, the date the Board’s Western Regional Office

served him at his email address of record. ID at 1; IAF, Tab 1 at 2, Tab 14.

Accordingly, his March 5, 2018 petition for review is untimely by approximately

16 months.

The Board will excuse the untimely filing of a petition for review only

upon a showing of good cause for the delay. 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. 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 that similarly shows a causal relationship to his inability to timely file

his petition for review. 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).

We find that the appellant has not shown good cause for the delay.

Although he is pro se, the 16-month delay is significant. See Beverly v.

Department of Justice, 110 M.S.P.R. 27, ¶ 6 (2008) (finding the pro se appellant’s

over 2-month delay significant). He also has not explained how his incarceration

prevented him from receiving the initial decision or otherwise prosecuting his

appeal. See McCoy v. U.S. Postal Service, 112 M.S.P.R. 256, ¶ 7 (2009) (finding

no good cause for the appellant’s filing delay when he failed to explain how his

incarceration prevented him from filing a petition for review or explained the

further delay in filing after he was released), aff’d, 360 F. App’x 132 (Fed. Cir.

2010); Johnson v. Department of the Navy, 73 M.S.P.R. 431, 433 (1997) (finding

that being incarcerated did not relieve the appellant of his responsibility to ensure

that the Board knew where it could reach him). Further, while an appellant’s

reliance on agency misinformation as to the filing deadline may be a basis for

excusing a filing delay, Floyd v. U.S. Postal Service, 44 M.S.P.R. 37, 40-41

(1990), the appellant’s assertion that “the VA [told him] not to worry about

anything else,” PFR File, Tab 1 at 3, is insufficient to show that the agency

misinformed him as to any matter. In any event, the initial decision correctly

apprised him of the filing deadline. ID at 3; see Beverly, 110 M.S.P.R. 27, ¶ 6.

The appellant continued to exhibit a lack of due diligence by failing to submit the

required motion and accompanying affidavit or sworn statement . See Morton v.

Department of Veterans Affairs, 113 M.S.P.R. 365, ¶ 9 (2010); 5 C.F.R.

§ 1201.114(g) (providing that late filings must be accompanied by an affidavit or

sworn statement explaining the delay). We, therefore, dismiss the appellant’s

petition for review as untimely filed without good cause shown for the delay.

To the extent that the appellant intended his petition for review to be a

request to reopen his VEOA appeal, we deny that request. The Board usually will

not reopen an appeal to cure the untimeliness of a petition for review. Deville v.

Government Printing Office, 93 M.S.P.R. 187, ¶ 15 (2002). Also, a request to

reopen generally must be filed within a reasonable period of time, measured in

weeks, not years. Cameron v. Department of the Navy, 112 M.S.P.R. 350, ¶ 9

(2009); see 5 C.F.R. § 1201.118. The appellant’s 16-month delay in making his

request was unreasonably long. See Cameron, 112 M.S.P.R. 350, ¶ 9 (denying

the appellant’s request to reopen an appeal approximately 15 months after the

initial decision became final). Absent any other basis for reopening, we decline

to exercise our discretionary authority under 5 C.F.R. § 1201.118, and we deny

his request to reopen this appeal. Id.

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:

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. 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. 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