The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIE WYATT, DOCKET NUMBER
Appellant, DC-0752-19-0176-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christie Wyatt , Woodbridge, Virginia, pro se.
Kristen L. Walsh , Esquire, Atlanta, Georgia, 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 appeal as untimely filed. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 agency removed the appellant from her EAS-23 Strategic Planning
Specialist position effective June 1, 2018. Initial Appeal File (IAF), Tab 4 at 13.
The appellant filed her Board appeal on December 1, 2018, IAF, Tab 1, and the
agency moved to dismiss the appeal as untimely filed. IAF, Tab 4 at 5-11. The
administrative judge granted the agency’s motion and issued an initial decision
dismissing the appeal as untimely filed. IAF, Tab 7, Initial Decision (ID). The
initial decision, issued on February 15, 2019, informed the appellant that a
petition for review must be filed with the Board by March 22, 2019, or, if the
appellant proved that she received the initial decision more than 5 days after the
date it was issued, then she could file a petition for review within 30 days of the
date that she actually received the initial decision. ID at 4.
The appellant filed a petition for review on April 18, 2019, asserting that
she was “mentally incapacitated and unable to proceed mentally.” Petition for
Review (PFR) File, Tab 1. The Clerk of the Board informed the appellant that
her petition was untimely filed and afforded her the opportunity to file a motion
to accept the filing as timely and/or to waive the time limit for good cause. PFR
File, Tab 2 at 2. The Clerk also informed the appellant that such a motion must
be accompanied by a statement signed under penalty of perjury or an affidavit.
Id. The appellant did not respond. The agency has responded to the petition.
PFR File, Tab 3.
ANALYSIS
The Board will accept a petition for review filed beyond the deadline if the
appellant establishes circumstances showing that the petition for review was
timely filed, e.g., that it was filed 30 days after receipt, or 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. §§ 1201.113(d), .114(e)-(g). The party who submits an
untimely petition for review has the burden of establishing good cause for the
3
delayed filing by showing that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Sanders v. Department of the
Treasury, 88 M.S.P.R. 370, ¶ 5 (2001). To determine whether a party has shown
good cause, the Board will consider the length of the delay, the reasonableness of
the party’s 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. 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). To
establish that an untimely filing was the result of an illness, the party must:
(1) identify the time period during which she suffered from the illness; (2) submit
medical or other 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 requesting an extension of time. Pirkkala v.
Department of Justice, 123 M.S.P.R. 288, ¶ 19 (2016); Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 (1998).
In her petition for review, the appellant states that her best friend died of
cancer in October 2018 which resulted in her being hospitalized for mental health
issues. PFR File, Tab 1 at 3. She also asserted that three relatives died in
January and March of 2019, which extended her mental illness. Id. With her
petition, the appellant submits copies of medical bills showing that, during
December 2018, she received psychiatric evaluations and was hospitalized. Id.
at 4-5. She also submits copies of four death notices showing she lost her friend
in October 2018, two relatives in January 2019, and a relative in March 2019. Id.
at 6-9.
The appellant’s evidence and argument, however, do not justify her delay
in filing her petition for review. The appellant’s medical treatment and the deaths
of her friend and two relatives predated the February 15, 2019 issuance of the
4
initial decision and thus do not explain the delay in filing between the March 22,
2019 deadline and the April 18, 2019 filing. Although the appellant submitted
the death notice of a family member who died on March 24, 2019, and asserts that
the death of her relative extended her mental illness, she submits no medical
evidence in support of her assertion.
In addition to the assertions raised in the appellant’s petition for review, as
noted, the Clerk of the Board afforded the appellant an opportunity to submit an
explanation for her untimely filing. PFR File, Tab 2. The appellant, however,
has not responded.
We note that the appellant is pro se and that her 27-day delay is not very
lengthy. Nevertheless, the delay is not minimal. See Gonzalez v. Department of
Veterans Affairs, 111 M.S.P.R. 697, ¶ 11 (2009) (finding an 8-day delay not
minimal). Moreover, the Board has consistently denied a waiver of the filing
deadline even when the delay is not lengthy and the appellant is pro se if no good
reason for an untimely filing is shown. See, e.g., id.; Scott v. Social Security
Administration, 110 M.S.P.R. 92, ¶ 8 (2008) (finding no good cause for an
unexplained 11–day delay).
In sum, we conclude that the appellant has failed to show that she exercised
the due diligence or ordinary prudence that would justify waiving the deadline for
filing a petition for review. 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 removal appeal.
5
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:
2
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
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
7
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
8
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
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.
3
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
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.