The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA REYNOLDS, DOCKET NUMBER
Appellant, PH-1221-17-0057-W-1
v.
SOCIAL SECURITY DATE: April 16, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Cassandra Koonce , Charlotte Hall, Maryland, for the appellant.
Emily Markos , Philadelphia, Pennsylvania, 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 individual right of action (IRA) appeal as settled. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant is a GS-11 Claims Specialist who filed a complaint with the
Office of Special Counsel (OSC). Initial Appeal File (IAF), Tab 1 at 1, 5. In a
letter summarizing the appellant’s complaint, OSC indicated that she had alleged
that she was not selected for a promotion in reprisal for refusing to obey one of
her manager’s orders to inflate a veteran’s disability benefits in violation of
applicable laws, rules, and regulations. IAF, Tab 3 at 2-3. On September 29,
2016, OSC terminated its investigation of the appellant’s complaint. Id. at 6-8.
The appellant then filed this IRA appeal on November 1, 2016. IAF,
Tab 1. In May 2017, the appellant and the agency entered into a settlement
agreement. IAF, Tab 17. Under the terms of the agreement, the appellant agreed
to withdraw this appeal with prejudice and release all her claims against the
agency. Id. at 4-5. The agency agreed to provide the appellant with training and
an award. Id. at 6.
On May 23, 2017, the administrative judge dismissed the appeal as settled
and entered the settlement agreement into the record for enforcement purposes.
IAF, Tab 18, Initial Decision (ID). The initial decision noted that it would
become final on June 27, 2017, unless a petition for review was filed by that date.
ID at 3.
Approximately 11 months later, on June 6, 2018, the Office of the Clerk of
the Board received a petition for review filed by the appellant via mail,
postmarked May 19, 2018. Petition for Review (PFR) File, Tab 1 at 1, 17. The
appellant indicates that her manager and supervisor had retaliated against her and
that the initial decision failed to make her whole by providing her with a
promotion. PFR File, Tab 1 at 4-5. The appellant stated in a motion to accept her
late filed petition for review that good cause existed because she was “totally
incapacitated” between April 12, 2018, and May 2, 2018. Id. at 8.
On June 6, 2018, the Clerk’s Office issued a notice acknowledging the
appellant’s petition and informing her that her petition was untimely filed.
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PFR File, Tab 2. The Clerk’s Office set a deadline of June 21, 2018, for the
appellant to file a motion to either accept the filing as timely or waive the time
limit for good cause. Id. at 2. The appellant has not filed such a motion with the
Board.
DISCUSSION OF ARGUMENTS ON REVIEW
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. 5 C.F.R. § 1201.114(e). The
date of filing by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l).
Here, the initial decision was issued on May 23, 2017, and the appellant did
not show that she received it more than 5 days after it was issued. Accordingly,
she was required to file her petition for review by June 27, 2017. Instead, her
petition for review was filed by mail, postmarked May 19, 2018. PFR File, Tab 1
at 17. It was therefore 326 days late.
The Board will excuse the untimely filing of a petition for review only
upon a showing of good cause for the delay. Via v. Office of Personnel
Management, 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). 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
that similarly shows a causal relationship to her inability to timely file her
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).
4
Here, the appellant is represented by a non-attorney union representative. 2
IAF, Tab 1 at 3, Tab 17 at 9; PFR File, Tab 1 at 6. Her approximately 10 -month
filing delay is significant. See Batiste v. U.S. Postal Service, 98 M.S.P.R. 621,
¶ 8 (2005) (finding a pro se appellant’s approximately 10-month filing delay to be
significant), aff’d, 158 F. App’x 294 (Fed. Cir. 2005). She has done nothing more
than vaguely assert that her petition was untimely because she was “totally
incapacitated” between April 12, 2018, and May 2, 2018. PFR File, Tab 1 at 8.
Her assertion is not made under penalty of perjury. Id. But, even if true, her
assertion does not explain why she did not file her petition for review during the
over 9-month period between June 27, 2017, and April 12, 2018. See Alexander
v. Department of Veterans Affairs, 76 M.S.P.R. 285, 288-89 (1997) (dismissing
the appellant’s petition for review as untimely filed because, even if the Board
found good cause for waiving a portion of the filing delay, the appellant failed to
offer any evidence or argument to explain another portion of the filing delay),
aff’d, 152 F.3d 948 (Fed. Cir. 1998) (Table).
It is also significant that the appellant did not respond to the letter from the
Clerk’s Office informing her that untimely petitions for review, such as hers, had
to be accompanied by a motion to either accept the petition as timely or waive the
time limit for good cause, and affording her the opportunity to make such a
motion. PFR File, Tab 2 at 1-2. Under these circumstances, we find that the
appellant has failed to establish good cause for her untimely filed petition for
review. See Batiste, 98 M.S.P.R. 621, ¶ 8; Alexander, 76 M.S.P.R. at 288-89.
In her petition for review, the appellant may be alleging that the agency has
not adhered to the terms of the May 2017 settlement agreement. PFR File, Tab 1
at 6. To the extent that the appellant seeks enforcement of the settlement
agreement, she must file a petition for enforcement with the regional office that
2
The appellant’s petition for review is apparently signed by her representative, but it is
unclear to what extent her representative assisted her in drafting or filing the petition
for review. PFR File, Tab 1 at 6. Even if the appellant were proceeding pro se, our
decision would remain the same.
5
issued the initial decision. See Reid v. U.S. Postal Service, 61 M.S.P.R. 84, 90
(1994); 5 C.F.R. § 1201.182(a).
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 IRA appeal.
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
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
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
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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
8
(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
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
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.