Opinion

Mark Marade v. Department of Labor

Court: Merit Systems Protection Board
Filed: May 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK MARADE, DOCKET NUMBER

Appellant, DC-0432-18-0365-I-2

DEPARTMENT OF LABOR, DATE: May 23, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mark Marade , Chesapeake, Virginia, pro se.

Rolando N. Valdez , Esquire, Washington, D.C., 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 removal 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Effective February 9, 2018, the agency removed the appellant from his

position as a GS-12 Economist. Marade v. Department of Labor, MSPB Docket

No. DC-0432-18-0365-I-1, Initial Appeal File (IAF), Tab 1 at 3-14, Tab 5 at 13.

He appealed his removal to the Board, and the parties subsequently reached an

agreement to settle the appeal. IAF, Tab 1; Marade v. Department of Labor,

MSPB Docket No. DC-0432-18-0365-I-2, Refiled Appeal File (RAF), Tab 5. In a

November 26, 2018 initial decision, the administrative judge entered the

settlement agreement into the record for purposes of enforcement by the Board,

and she dismissed the appeal as settled. RAF, Tab 6, Initial Decision (ID) at 1-2.

The administrative judge notified the appellant that the initial decision would

become final on December 31, 2018, unless a petition for review was filed by that

date. ID at 3.

DISCUSSION OF ARGUMENTS ON REVIEW

On October 1, 2019, the appellant filed a petition for review with the

Board. Petition for Review (PFR) File, Tab 1. 2 In his petition, the appellant

contends that the settlement agreement erroneously informed him that the

deadline by which he needed to apply for disability retirement benefits with the

Office of Personnel Management (OPM) was February 18, 2019. PFR File, Tab 2

at 3-4. The appellant asserts that he applied for disability retirement benefits

prior to this date but that OPM denied his application as untimely because it was

not filed by February 8, 2019. Id.

Thereafter, 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 3 at 2. The appellant did not respond.

On October 5, 2019, the Office of the Clerk of the Board contacted the appellant and

informed him that his petition for review was partially illegible. PFR File, Tab 3 at 1.

Later that same day, the appellant filed a supplementary, legible petition for review.

PFR File, Tab 2.

The agency has responded to the appellant’s petition for review, arguing that it is

untimely with no good cause shown and that the appellant has not shown a basis

for disturbing the initial decision. PFR File, Tab 4 at 4-10. Specifically, the

agency contends that, although the settlement agreement contained a

typographical error, i.e., it stated that the appellant must file an application for

disability retirement benefits not later than February 18, 2019, in lieu of

February 8, 2019, this error was readily apparent to the appellant, and, in any

event, he did not show that the error resulted in the denial of his application for

disability retirement under the Federal Employees’ Retirement System (FERS).

Id. at 4, 7-10.

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 November 26, 2018, and sent to the appellant via U.S. mail the

same day. RAF, Tab 7 at 1. The appellant does not allege that he did not receive

the initial decision within 5 days of its issuance; accordingly, his petition for

review is untimely by approximately 9 months. PFR File, Tabs 1-2; see 5 C.F.R.

§ 1201.114(e).

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

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. His 9-month delay in filing is

significant. See, e.g., Dean v. U.S. Postal Service, 100 M.S.P.R. 556, ¶ 5 (2005)

(finding a 6-month delay not minimal); Floyd v. Office of Personnel Management,

95 M.S.P.R. 260, ¶6 (2003) (finding a 1-month delay not minimal).

The appellant’s pro se status alone does not excuse his significant filing delay.

See Dean, 100 M.S.P.R. 556, ¶ 5. Moreover, the appellant provides no

explanation for his late filing despite being given an opportunity to do so.

The appellant’s failure to address the timeliness of his petition for review and the

lack of evidence of circumstances beyond his control or of unavoidable casualty

or misfortune that prevented him from filing a timely petition for review weigh

against finding good cause. See Cabarloc v. Department of Veterans Affairs,

112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se

appellant’s 10-day delay in filing a petition for review when he did not respond to

the Clerk’s notice regarding timeliness).

Moreover, the argument contained in the appellant’s petition for review and

supplement does not establish good cause for his untimeliness. 3 The appellant

appears to contend that he was unaware that the settlement agreement set forth

the incorrect date by which he needed to file his application for FERS disability

benefits until OPM denied his application as untimely. PFR File, Tab 2 at 3-4.

To the extent the appellant is alleging that his unawareness in this regard

The appellant asserts that he applied for disability benefits. PFR File, Tab 2 at 3-4. In

response, the Office of the Clerk of the Board explained that, to the extent he was

alleging that his health impacted his ability to meet filing deadlines, he needed to

provide additional information. PFR File, Tab 3 at 7 n.1. The appellant did not

respond. Thus, we find that he did not demonstrate good cause for his untimely filing

on the basis of illness, or mental or physical capacity. See Lacy v. Department of the

Navy, 78 M.S.P.R. 434, 437 (1998); see also Stribling v. Department of Education,

107 M.S.P.R. 166, ¶ 8 (2007).

constitutes good cause for his delay in filing, we find his assertion unavailing.

Here, the appellant’s employment with the agency ended on February 9, 2018, 4

IAF, Tab 5 at 13, and the contested provision of the settlement agreement stated

as follows, “Appellant understands that he may apply to [OPM] for [disability

retirement under FERS] up to one (1) year from the date of his separation from

[the agency] (i.e., no later than Tuesday, February 18, 2019),” RAF, Tab 5 at 5

(emphasis added). Thus, the error in the settlement agreement was readily

discoverable, and his allegations relate to information of which he was aware, or

could have been aware, at the time he entered into the agreement. See Wilson v.

General Services Administration, 15 M.S.P.R. 45, 47 (1983) (finding that the

appellant had not shown good cause for his untimeliness because, among other

things, he did not show that the “new” information on which he relied was

unavailable, despite due diligence, before the record closed) .

Moreover, even assuming that the error was not readily discoverable by the

appellant prior to the close of the record, the appellant does not explain when

OPM denied his application, i.e., he did not allege when he learned of the “new

and material” evidence. PFR File, Tab 2 at 3-4. Thus, we are unable to ascertain

whether he acted promptly upon discovery of the same. 5 For this reason, we find

that he has not established good cause for the late filing of his petition for review.

See Robinson v. Veterans Administration, 33 M.S.P.R. 483, 486-87 (1987)

(finding that the appellant did not show good cause for his untimeliness when he

did not verify when he learned of the existence of his allegedly new and material

evidence) .

To this end, the settlement agreement lists the dates of the appellant’s employment

with the agency as July 2, 2000, through February 9, 2018. RAF, Tab 5 at 7.

Here, the agency’s opposition to the appellant’s petition for review placed the

appellant on notice of his need to provide additional information about the timing and

basis of OPM’s alleged decision; however, he did not file a reply with additional detail.

PFR File, Tab 4 at 6, 9-10; see Cabarloc, 112 M.S.P.R. 453, ¶ 9.

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 dismissal of his removal appeal as settled.

NOTICE OF APPEAL RIGHTS 6

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. 7 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