Opinion

Carol Stinchcomb v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CAROL R. STINCHCOMB, DOCKET NUMBER

Appellant, DA-0714-21-0067-I-1

DEPARTMENT OF VETERANS DATE: April 16, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carol R. Stinchcomb , Oklahoma City, Oklahoma, pro se.

Patrick A. Keen , Esquire, Shreveport, Louisiana, 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 her removal appeal as barred by the doctrine of collateral estoppel. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

On August 5, 2020, the agency removed the appellant from her position as

a Supervisory Medical Support Assistant, pursuant to 38 U.S.C. § 714. Initial

Appeal File (IAF), Tab 1 at 2, Tab 6 at 11-12. As set forth in the decision notice,

an appeal of such an action is generally required to be filed within 10 business

days of the effective date of the action. 38 U.S.C. § 714(c)(4)(B); IAF, Tab 6

at 13. The appellant appealed her removal on August 20, 2020, and the

administrative judge issued an initial decision on October 2, 2020, dismissing the

appeal as untimely filed under 38 U.S.C. § 714(c)(4)(B). Stinchcomb

v. Department of Veterans Affairs, MSPB Docket No. DA-0714-20-0501-I-1,

Initial Decision (Oct. 2, 2020). That decision became final on November 6, 2020,

when neither party filed a petition for review. Id. at 4.

On November 13, 2020, the appellant filed the instant appeal, again

challenging her removal. IAF, Tab 1. The administrative judge issued an order

on timeliness, instructing the appellant to file evidence and argument showing

that good cause existed for the filing delay, and an order on the Board’s

preclusion doctrines, ordering her to file evidence and argument to show good

cause why her appeal should not be dismissed on either collateral estoppel or res

judicata grounds. IAF, Tabs 3, 8. The appellant did not respond to either order.

Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, on

January 4, 2021, the administrative judge issued an initial decision dismissing the

appellant’s appeal as barred by the doctrine of collateral estoppel, IAF, Tab 9,

Initial Decision (ID). She also noted that, even if the appellant was not

collaterally estopped from relitigating her claim, her appeal was otherwise

untimely filed under 38 U.S.C. § 714, and she has not shown that the doctrine of

equitable tolling should apply to excuse the delay. ID at 3 n.*. The

administrative judge informed the appellant that any petition for review of the

initial decision must be filed no later than February 8, 2021, and included

instructions on how to do so. ID at 4-6.

On February 13, 2021, the appellant filed a petition for review of the initial

decision. Petition for Review (PFR) File, Tab 1 at 4. Therein, she again

challenged her removal and argued that it was taken in reprisal for filing a

whistleblower complaint and that it was based on systemic racism. Id. at 1. In a

letter acknowledging the appellant’s submission, the Acting Clerk of the Board

notified the appellant that her petition for review was untimely filed. PFR File,

Tab 2 at 2. The letter explained to the appellant that the Board’s regulations

require a petition for review that appears untimely to be accompanied by a motion

to accept the filing as timely and/or to waive the time limit for good cause, and

set a deadline for the appellant to file such a motion. Id. It also informed the

appellant of what she must show in order to establish that her delay in filing was

the result of illness. Id. at 7 n.1.

The appellant subsequently filed a motion, explaining that she “was so

devastated and confused” over her removal and that the initial administrative

judge told her that she “wouldn’t win” her appeal. PFR File, Tab 3 at 1. She also

asserts that she went into “a deep depression,” and was “about to become

homeless.” Id. The agency has filed a response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s petition for review is untimely filed without good cause shown.

The Board’s regulations provide that a petition for review must be filed

within 35 days after the date of the issuance of the initial decision, or, if the

petitioner shows that the initial decision was received more than 5 days after the

date of issuance, within 30 days after the date the petitioner received the initial

decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the

Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on

January 4, 2021. ID at 1. Thus, as the administrative judge correctly informed

the appellant, she was required to file any petition for review no later than

February 8, 2021. ID at 4. The appellant’s petition for review of the initial

decision was filed on February 13, 2021. PFR File, Tab 1 at 4, Tab 2 at 1. As

such, we find that the petition for review is untimely filed by 5 days.

The Board may waive its timeliness regulations only upon a showing of

good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.

§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review

has the burden of establishing good cause by showing that she 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 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. Palermo, 120 M.S.P.R. 694, ¶ 4; 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). The Board may decline to excuse a pro se appellant’s

minimal delay when she fails to establish that she acted with due diligence.

See, e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7-8

(2002).

Additionally, as explained above, the appellant asserts on review that her

mental health was affected by the removal action and that she suffers from

depression. PFR File, Tab 3 at 1. We construe this as a claim that a mental

illness affected her ability to timely file her petition for review. See, e.g.,

Tacujan v. U.S. Postal Service, 109 M.S.P.R. 553, ¶ 7 (2008); Hawkins

v. Department of the Navy, 67 M.S.P.R. 559, 561-62 (1995). To establish good

cause for an untimely petition for review based on mental illness, an appellant

must (1) identify the time period during which she suffered from the illness;

(2) submit corroborating evidence showing that she suffered from the alleged

illness during that time period; and (3) explain how the illness prevented her from

timely filing her appeal or request for an extension of time. Nesby v. Office of

Personnel Management, 81 M.S.P.R. 118, ¶ 7 (1999); Lacy v. Department of the

Navy, 78 M.S.P.R. 434, 437 (1998).

Although the appellant is proceeding pro se, and her 5-day delay can

generally be regarded as “relatively de minimis,” see Brown v. Office of

Personnel Management, 86 M.S.P.R. 417, ¶ 8 (2000), we nonetheless find that

she has not established good cause to waive the filing deadline. As noted above,

in the Clerk of the Board’s acknowledgement order informing the appellant that

her petition for review was untimely filed, it provided her with what she must

show in order to establish good cause for an untimely petition for review if she

alleges that her health affected her ability to meet the filing deadline, consistent

with Board precedent in Lacy. PFR File, Tab 2 at 7 n.1. The appellant’s motion

to waive or set aside the time limit did not provide any of that information.

PFR File, Tab 3. To wit, she has not identified the time period during which she

was mentally incapacitated, nor has she submitted any documentary evidence

demonstrating that she suffers from mental illness or explained how her mental

illness prevented her from timely filing her petition for review. Rather, she

simply asserts, without any supporting evidence or explanation of how it affected

the untimely filing, that she suffers from depression.

When, as here, an appellant fails to provide any of the information called

for in Lacy, particularly an explanation of how the mental illness caused the delay

in filing, the Board has consistently declined to find good cause for an untimely

filing. See Cameron v. Department of the Navy, 112 M.S.P.R. 350, ¶ 13 (2009)

(finding no good cause shown when a petition for review does not offer any

evidence or explanation as to why an appellant’s mental health issues resulted in

delay in filing); Davis v. U.S. Postal Service, 101 M.S.P.R. 107, ¶ 6 (2006)

(finding that an appellant failed to establish good cause for an untimely petition

for review when he failed to explain how his depression caused his delay in filing

or to submit any documentation in support of his claim), aff’d, 192 Fed. App’x

966 (Fed. Cir. 2006). Thus, although we are sympathetic to the appellant’s

medical condition, we find that she has failed to establish good cause based on

mental illness.

As noted above, the appellant also asserts in her motion that she “was about

to become homeless.” PFR File, Tab 3 at 1. However, she has not explained how

that situation prevented her from filing a timely petition for review. For instance,

she has not alleged that she was unaware of the filing deadline or that she was

unable to access a computer or facsimile machine, nor has she alleged that she

was unable to travel to a U.S. Postal Service location or any commercial delivery

service to submit a petition for review. As such, we find that the appellant failed

to establish that she experienced circumstances beyond her control that affected

her ability to comply with the time limits. See Palermo, 120 M.S.P.R. 694, ¶ 4;

Moorman, 68 M.S.P.R. at 62-63.

In sum, although the appellant is acting pro se and her delay in filing her

petition for review was relatively minimal, we find that she failed to establish that

she exercised due diligence or ordinary prudence under the circumstances of her

case. 2 See Lockhart, 94 M.S.P.R. 396, ¶¶ 7-8. Accordingly, we dismiss the

appellant’s petition for review as untimely filed without good cause shown. 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 removal appeal.

The appellant submitted with her motion to accept the filing as timely and/or to waive

the time limit for good cause an e-mail that appears to include her response to the

proposed removal action. PFR File, Tab 3 at 5-6. This document does not address the

issue of timeliness of the appellant’s petition for review, and is, therefore, not relevant

to our inquiry here.

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.

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. 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).

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