The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CRIS L. SONNICHSEN, DOCKET NUMBER
Appellant, DC-0752-19-0111-I-1
v.
DEPARTMENT OF THE NAVY, DATE: May 15, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Cheri L. Cannon , Esquire, Washington, D.C., for the appellant.
Anakah Harrison , Cherry Point, North Carolina, for the agency.
Malcolm G. Schaefer , San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown. For
the reasons discussed below, we GRANT his petition for review, REVERSE the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision, and REMAND the case to the regional office for further
adjudication.
BACKGROUND
The agency removed the appellant, a GS-11 Production Controller, from his
position effective August 31, 2018. Initial Appeal File (IAF), Tab 6 at 16-18.
The decision letter informed him that he could file a Board appeal challenging his
removal within 30 days after the effective date of his removal or after his receipt
of the decision, whichever was later. Id. at 18. On September 28, 2018, the
appellant’s attorney faxed to the Board’s regional office a request for a 30 -day
extension of time to appeal the removal, indicating that “[a]dditional time may be
needed or requested depending on area recovery efforts.” IAF, Tab 1 at 29. He
explained that his law office was closed “due to damage and continued utility
disruption from Hurricane Florence” and that “conditions precluded normal
operations, including client contact, phone, internet, electric, and attorney and
client displacement due to the storm and aftermath.” Id. He noted that the
Federal Emergency Management Agency had declared two North Carolina
counties to be disaster areas with an “incident date of September 7, 2018 and
declaration date of September 14, 2018, and [] continuing.” Id. According to an
affidavit he later submitted, a Board employee contacted him and informed him
that the Board had no way of granting an extension before the appeal was actually
filed. Id. at 20. He attested that the Board employee told him that, when he was
able to file the appeal, he should provide the same information contained in his
facsimile, request a waiver of the time limit, and reference his earlier request and
phone call with her. Id. at 20-21. He further stated that she told him she was
“sure that [his request] would be granted under the circumstances of the
hurricane.” Id. at 21.
On November 6, 2018, the appellant appealed his removal to the Board and
requested a waiver of the filing deadline based on his attorney’s conversation
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with the Board employee and the effects of Hurricane Florence. IAF, Tab 1. He
provided a copy the September 28, 2018 request for an extension of time and the
affidavit discussed above describing his attorney’s conversation with the Board
employee. Id. at 18-21. In the affidavit, the attorney also explained that he
evacuated North Carolina from September 12 to 18, 2018, and reopened his law
office to the general public on October 3, 2018, but continued to experience
erratic internet, phone service, and power supply throughout the next 2 weeks.
Id. at 19-20.
The agency moved to dismiss the appeal as untimely filed, arguing that the
appellant had failed to demonstrate good cause for his 33-day filing delay given,
among other things, the fact that his attorney conceded that he reopened his law
office on October 3, 2018. IAF, Tab 6 at 4-14. The appellant opposed the
agency’s motion and submitted another affidavit by his attorney providing
additional details about the difficulties he faced when reopening his law office
and prioritizing the work for all of his clients. IAF, Tab 8 at 23-27. He explained
that, although he opened his office to the general public on October 3, 2018, he
did not perform any legal work until October 7, 2018, because he and his staff
were reassembling the office and putting together “critical systems” and that he
was out of the office for 1 of the next 3 weeks to address significant storm
damage to his home and commercial real estate holdings. Id. at 26. He also
attested that he relied on his conversation with the Board employee in deciding
how to prioritize the appellant’s appeal, that she did not inform him that he would
be required to file the appeal within any specific period of time, and that he
inferred from the conversation that a reasonable extension of time would be
“routinely granted.” Id. at 24, 27.
In a February 14, 2019 initial decision, the administrative judge dismissed
the appeal as untimely filed without good cause shown. IAF, Tab 9, Initial
Decision (ID).
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The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3. 2
ANALYSIS
An appellant bears the burden of proving by preponderant evidence that his
appeal was timely filed. 3 5 C.F.R. § 1201.56(b)(2)(i)(B). Generally, an appeal
must be filed no later than 30 days after the effective date, if any, of the action
being appealed or 30 days after the date of receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). The Board will dismiss an untimely
filed appeal unless good cause is shown for the delay. 5 C.F.R. § 1201.22(c). To
establish good cause for the untimely filing of an appeal, 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, which similarly shows a causal relationship to his inability to timely
file his petition. 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). If the appellant establishes
good cause, waiver of the filing deadline is appropriate absent a showing of
2
For the first time on review, the agency has submitted two September 2018 orders
from the Chief Justice of the Supreme Court of North Carolina regarding filing
deadlines for counties affected by Hurricane Florence. PFR File, Tab 3 at 21-32.
Because the agency has not shown that it was unable to submit these orders below, we
do not consider them for the first time on review. See Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 214 (1980) (stating that 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).
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
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substantial prejudice to the agency. Boyd v. Department of Veterans Affairs,
111 M.S.P.R. 116, ¶ 12 (2009).
In the initial decision, the administrative judge found that the appellant
received the agency’s decision letter on September 4, 2018, and that any Board
appeal of his removal was thus due no later than October 4, 2018. ID at 5-6.
Because the appellant did not file his appeal until November 6, 2018, he found
that his appeal was untimely filed by 33 days. ID at 6. Neither party challenges
this finding on review, and we discern no reason to disturb it.
Regarding whether the appellant established good cause for his 33-day
filing delay, the administrative judge determined that his attorney acted diligently
when he contacted the Board in late September after recognizing that the
hurricane would affect his ability to timely file an appeal and that the hurricane
did interrupt his law practice from mid-September through October 8, 2018. ID
at 7. However, he found that the appellant’s attorney returned to his law practice
for 2 of the 3 weeks after October 8, 2018, and that he could have filed an appeal
during this time if he had exercised due diligence and ordinary prudence
notwithstanding his other professional and personal obligations. ID at 7-8. He
credited the attorney’s assertion that the Board employee informed him that she
was “sure” a waiver would be granted under the circumstances but found it was
unreasonable for him to assume that a 30-day waiver would be routinely granted
in the absence of evidence showing that good cause supported a waiver for the
entire time. ID at 8. Accordingly, the administrative judge concluded that good
cause supported waiver of the filing deadline through October 22, 2018, but that
the appellant failed to show good cause for his failure to file between October 23
and November 6, 2018. ID at 8-9.
The appellant challenges these findings on review. PFR File, Tab 1
at 9-21. He argues that the 33-day delay was caused by a “hurricane of historic
proportions and catastrophic damage to local infrastructure and his lawyer’s home
and place of business” and that his attorney acted with due diligence to inform the
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Board of his need for an extension. Id. at 9-15. He further argues that his
attorney had no prior experience before the Board, that he deferred to the Board
employee’s assurance that she was “sure” a waiver would be granted under the
circumstances, and that he assumed that she would have informed him “if some
other action was advisable or required [ ] to secure waiver of the deadline (such
as filing any appeal, no matter how incomplete, and amending it later).” Id.
at 16-17. The appellant also argues that the agency will not be prejudiced by a
“delay of barely one month.” Id. at 18. In response, the agency reiterates many
of the arguments it raised below, including that the appellant’s attorney could
have timely filed the initial appeal and has a history of untimely filings, the
length of the delay was significant, and the appellant failed to explain why his
attorney could not have filed the appeal on any other day before November 6,
2018. PFR File, Tab 3 at 7-20.
We agree with the administrative judge’s determination that Hurricane
Florence impaired the ability of the appellant’s attorney to file the appeal
between mid-September and October 8, 2018, and that good cause supports a
waiver of the filing deadline through October 22, 2018. ID at 7. For the reasons
discussed below, we further find that the appellant has shown good cause to
excuse the remainder of his filing delay.
The Board has previously found good cause to waive a filing deadline when
a pro se appellant reasonably relied on incorrect or misleading information from a
Board employee. See Annunziata v. U.S. Postal Service, 36 M.S.P.R. 192, 196-97
(1988) (finding good cause to waive a filing deadline because the pro se appellant
reasonably relied on the administrative judge’s misstatement concerning the
timing of his appeal); Meehan v. U.S. Postal Service, 7 M.S.P.R. 193, 196 (1981)
(finding good cause to excuse a filing delay when the pro se appellant was misled
by Board employees regarding the necessity to file an appeal). Although the
appellant was not pro se, his attorney had not previously practiced before the
Board, and we find that he reasonably relied on the Board employee’s assurance
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that waiver of the filing deadline would be granted under the circumstances.
While we agree with the administrative judge and the agency that the appellant’s
attorney could have filed the appeal before November 6, 2018, there is no
indication that the Board employee advised him that he should file within any
particular time or warned him that his request for a waiver might be denied if he
delayed more than 2 weeks after reopening his office to the general public. Given
the Board employee’s statements and the circumstances surrounding the hurricane
recovery efforts, we find that it was reasonable for the appellant’s attorney to
infer that a waiver through November 6, 2018, would be granted.
In addition, although our regulations do not provide for extensions of time
to file an initial appeal, the Board has found that timely requests for such
extension may constitute good cause to excuse an untimely filing. See
Caldwell v. Department of the Treasury, 85 M.S.P.R. 674, ¶ 5 (2000) (finding
good cause to waive the filing deadline when, among other things, a pro se
appellant submitted evidence showing that he requested an extension of time to
file his appeal before the filing deadline and then filed his appeal within 30 days
of his extension request); Quinones v. Office of Personnel Management,
33 M.S.P.R. 612, 614 (1987) (finding good cause to excuse a 13-day filing delay
when the pro se appellant claimed that he requested and received an extension of
time to file his initial appeal and submitted a mail return receipt signed by the
administrative officer on a date within the filing period); Quarezo v. Office of
Personnel Management, 11 M.S.P.R. 522, 523 (1982) (finding good cause to
waive the filing deadline when a pro se appellant timely filed a “Motion To Have
His Claim Freezed and/or To Be Held In Abeyance,” the regional office notified
him that the Board’s regulations did not permit such request and that the time
limit for filing an appeal was running, and he filed his appeal 2 days following
his receipt of this response). Here, the appellant’s attorney, who had not
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previously appeared before the Board, demonstrated due diligence by requesting
an extension of time to file the initial appeal during the filing period. 4
Although the filing delay in this case of 33 days is quite lengthy, we find
that the circumstances surrounding the hurricane and recovery efforts, the
appellant’s timely request for an extension, and his attorney’s reasonable reliance
on the Board employee’s assurance that a waiver would be granted establish good
cause to excuse the late filing. Because the agency has not shown that it will be
substantially prejudiced by the appellant’s filing delay, we waive the filing
deadline. See Boyd, 111 M.S.P.R. 116, ¶ 12.
4
We recognize that a better practice would have been for the appellant’s attorney to file
an initial appeal containing the minimum requirements specified in 5 C.F.R.
§ 1201.24(a), along with a motion for an extension of time to file any initial pleading he
wished to file and a motion to hold the proceedings in abeyance. However, there is no
indication that the Board employee informed him of this option or that he knew or
should have known to do so, given that he reasonably assumed he received the best
advice from the Board employee, had never practiced before the Board, and was dealing
with hurricane recovery efforts. Furthermore, we disagree with the administrative
judge’s suggestion that the appellant’s attorney lacked due diligence because he filed
the initial appeal several days after 30-day extension would have expired. ID at 8-9. It
is unfair to hold an appellant to a deadline that he requested but was not granted.
Moreover, the appellant’s attorney indicated in his faxed request that he may require
additional time depending on area recovery efforts, IAF, Tab 1 at 29, but ultimately had
no reason to request a second extension or to follow up with the Board given that the
Board employee informed him that no extensions were possible and that she was “sure”
a waiver would be granted.
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ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.