Opinion

Joseph Anoruo v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Apr 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

directing the Board to consider whether an appellant diligently filed newly discovered evidence related to a claim of agency fraud with the Board

How later courts described this case

directing the Board to consider whether an appellant diligently filed newly discovered evidence related to a claim of agency fraud with the Board

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOSEPH C. ANORUO, DOCKET NUMBER

Appellant, SF-1221-22-0024-W-1

DEPARTMENT OF VETERANS DATE: April 18, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph C. Anoruo , Las Vegas, Nevada, pro se.

Erin L. Collins , Esquire, North Las Vegas, Nevada, 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 individual right of action (IRA) appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 October 14, 2021, the appellant filed a Board appeal alleging, among

other things, that he had sought corrective action from the Office of Special

Counsel (OSC) for various agency misdeeds; however, OSC had purportedly

mishandled his complaint. Initial Appeal File (IAF), Tab 1 at 5-33. The

appellant requested that the Board stay his appeal while OSC considered his

request for reconsideration of his complaint. Id. at 5-6. The appellant did not

provide his OSC complaint, OSC’s close-out letter, or any documentation that he

submitted to OSC.

On October 18, 2021, the administrative judge issued an order wherein she

explained the circumstances under which the Board has jurisdiction to adjudicate

IRA appeals, and she ordered the appellant to identify his claims and to provide

specific evidence and argument related thereto not later than October 28, 2021.

IAF, Tab 4 at 1-9. The appellant did not respond; instead, on November 28,

2021, he filed a motion requesting that his appeal be stayed “pending the

resolution of [an] accepted request for reconsideration of [an] OSC decision

[issued on August 11, 2021].” IAF, Tab 8 at 4. In this filing, the appellant

averred that he had not seen the administrative judge’s October 18, 2021 order

until November 28, 2021, because of various “unavoidable circumstances,”

including a family “hospitalization event” and his pursuit of other litigation. Id.

The administrative judge denied the appellant’s request on November 29,

2021, IAF, Tab 9 at 1-2, 2 and, on December 9, 2021, she issued an initial decision

dismissing the matter for lack of jurisdiction, IAF, Tab 10, Initial Decision (ID)

at 1, 7. In so doing, the administrative judge explained that it was unclear as to

what issues the appellant raised with OSC and, therefore, the appellant had failed

to show what, if any, claims he had exhausted. ID at 5-6. The administrative

In her order denying the request, the administrative judge provided the appellant

additional time, until December 6, 2021, to respond to her order regarding jurisdiction

and/or a motion to dismiss that the agency had filed on November 9, 2021. IAF, Tab 9

at 2. The appellant did not respond to either filing.

judge notified the appellant that the initial decision would become final on

January 13, 2022, unless a petition for review was filed by that date. ID at 7.

On January 19, 2022, the appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1. 3 In his petition, the appellant asserts, among other

things, that he did not receive the initial decision until January 19, 2022, because

of “home computer e-mail issues.” Id. at 4. He also references car trouble and

unspecified “[COVID]-19 related issues,” and avers that both the OSC attorney

assigned to his case and the administrative judge were under “undue influence.”

Id. at 4-5, 7. With his petition, the appellant provides email correspondence with

the Office of the Clerk of the Board suggesting that, in October 2021, he

experienced difficulties submitting an attachment with a Board filing. Id. at 8-11.

The Office of the Clerk of the Board notified the appellant that his petition

for review was untimely and explained that he must file a motion asking the

Board to accept the petition for review as untimely and/or to waive the time limit

for good cause. PFR File, Tab 2 at 1. The appellant thereafter filed a motion

requesting that the Board waive the time limit for good cause. PFR File, Tab 3

at 4-6. In so requesting, the appellant seemingly asserts, among other things,

that, on January 19, 2022, he experienced car problems, which caused him to

“suspect[] imminent danger” and prompted him to log into the “MSPB portal for

the first time since November 2021” and see that an initial decision had been

issued. Id. at 4. He also asserts that he was “encumbered with [an American

Federation of Government Employees (AFGE)] grievance compliant” and other

“[COVID]-19 associated problems, kids and family school preparation and

holiday,” which caused him to be “out of work for about 3-4 weeks.”

Id. at 4 & n.2 (grammar in original). With his motion, the appellant provides

documents related to his AFGE grievance and his car troubles. Id. at 7-13, 15-17.

The appellant’s ostensible petition, however, was entitled “NOTICE OF PETITION

FOR REVIEW,” and indicated that the appellant would “be submitting a petition for

review on or before 2/18/2022 or as may be ordered by [the] Board.” PFR File, Tab 1

at 4, 7.

He also provides an email indicating that OSC issued a “final decision to close

[his] case” on January 18, 2022. Id. at 14. The agency has responded to the

appellant’s petition for review, arguing that the appellant “has a lengthy history

of missing deadlines and blaming his email account and/or general family issues”

and that, as a registered e-filer, the appellant consented to accept electronic

service of pleadings. PFR File, Tab 5 at 4-5. The appellant has filed a reply

contending, among other things, that the initial decision went to his junk email

folder. PFR File, Tab 6 at 5. With his reply, the appellant provides a screen shot

of his email inbox and email correspondence with agency officials regarding his

requests for annual leave for 3 days in January 2021. 4 Id. at 10-12.

ANALYSIS

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

initial decision, or, if the petitioner shows that he received the initial decision

more than 5 days after the date of the issuance, within 30 days after the date he

received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision

was issued on December 9, 2021, and electronically sent to the appellant the same

day. IAF, Tab 11 at 1. Documents served on registered e-filers are deemed

received on the date of electronic submission; thus, the appellant’s petition for

review is untimely by 6 days. PFR File, Tab 1; see 5 C.F.R. § 1201.14(m)(2)

(2021).

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. 5 C.F.R. § 1201.114(g). To

establish good cause for an untimely filing, the appellant must show that he

exercised due diligence or ordinary prudence under the particular circumstances

Following the submission of his reply, the appellant filed a motion requesting to

submit a “brief and supporting documents” in support of his petition for review. PFR

File, Tab 7 at 4-5. The motion, however, neither identifies what the appellant seeks to

submit nor explains why he was unable to submit the unidentified evidence/argument

before the close of the record on review. See 5 C.F.R. § 1201.114(k). Accordingly, we

deny the motion.

of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).

In determining whether there is good cause, the Board considers the length of the

delay, the reasonableness of the excuse and showing of due diligence, whether the

appellant 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 file a timely petition. See Wyeroski v.

Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.

Cir. 2007).

We find that the appellant has not demonstrated good cause for the

untimely filing of his petition for review. Although the appellant is pro se and his

6-day delay is not especially lengthy, we find the appellant’s explanations for his

untimeliness unpersuasive. As a registered e-filer, the appellant consented to

accept all documents issued by the Board in electronic form and to monitor case

activity at e-Appeal to ensure that he had received all case -related documents;

indeed, he was responsible for ensuring that email from @mspb.gov was not

blocked by filters. IAF, Tab 1 at 2; see Rivera v. Social Security Administration,

111 M.S.P.R. 581, ¶ 7 (2009) (finding that the appellant failed to show that he

exercised due diligence in monitoring his case as a registered e -filer); see also

5 C.F.R. § 1201.14(j)(2)-(3) (2021). Moreover, the appellant’s vague assertions

regarding his family and a holiday do not provide a basis for waiver of the filing

deadline. 5 See Fields v. U.S. Postal Service, 56 M.S.P.R. 78, 80 (1992)

(explaining that general family difficulties do not constitute good cause for

The appellant’s assertions regarding unspecified “[COVID]-19 associated problems”

are similarly unavailing. PFR File, Tab 3 at 4. Indeed, in notifying the appellant that

his petition was untimely, the Office of the Clerk of the Board explained that, to the

extent the appellant was alleging that his health affected his ability to meet filing

deadlines, he must do the following: (1) identify the time period during which he

suffered from the illness; (2) submit medical or other evidence showing that he suffered

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

prevented him from timely filing his petition for review. PFR File, Tab 2 at 7 n.1. The

appellant did not provide this information.

waiver of the deadline for filing a petition for review). Accordingly, we find that

the appellant has failed to show good cause for his delay, and we decline to

excuse the same. See Lockhart v. Office of Personnel Management, 94 M.S.P.R.

396, ¶¶ 7-8 (2003) (declining to excuse a 5 -day delay in filing a petition for

review when the pro se appellant failed to show good cause for the same).

To the extent the appellant’s filings dispute the administrative judge’s

jurisdictional conclusion or pertain to the merits of his IRA appeal, we find that a

different outcome is not warranted. See Guevara v. Department of the Navy,

112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good

cause for his untimely filed petition for review when he merely argued the merits

of the agency’s removal action). Indeed, the appellant does not allege, and

nothing in his filings on review suggests, that any of the new evidence that he

provides on review challenges the initial decision; rather, the appellant seemingly

provides this evidence to support his unpersuasive claim that good cause exists

for his untimeliness. 6 Cf. Armstrong v. Department of the Treasury, 591 F.3d

1358, 1363 (Fed. Cir. 2010) (directing the Board to consider whether an appellant

diligently filed newly discovered evidence related to a claim of agency fraud with

the Board).

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.

As stated, the appellant provides a January 18, 2022 email indicating that OSC issued

a “final decision to close [his] case.” PFR File, Tab 3 at 14. To the extent the appellant

argues that this email evinces error with the administrative judge’s jurisdictional

conclusion, a different outcome is not warranted. Indeed, despite numerous

opportunities to do so, the appellant has failed to show what claims he exhausted with

OSC. Accordingly, the email does not provide a basis to disturb the initial decision.

See Mason v. Department of Homeland Security, 116 M.S.P.R. 135, ¶ 8 (2011)

(explaining that, pursuant to 5 U.S.C. § 1214(a)(3), an IRA appellant must to seek

corrective action from OSC before seeking corrective action from the Board, which he

may demonstrate proof of through his initial OSC complaint, evidence that he amended

his initial complaint, and his written correspondence with OSC).

NOTICE OF APPEAL RIGHTS 7

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).

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.

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. 8 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