Levine v. Merit Systems Protection Board , 526 F. App'x 978 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE ALAN LEVINE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3171
______________________
Petition for review of the Merit Systems Protection
Board in No. DC0752100529-I-1.
----------------------
LAWRENCE ALAN LEVINE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2012-3172
______________________
Petition for review of the Merit Systems Protection
Board in No. DE315H110517-I-1.
2 LAWRENCE LEVINE v. MSPB
______________________
Decided: May 13, 2013
______________________
LAWRENCE ALAN LEVINE, of Leavenworth, Kansas, pro
se.
SARA B. REARDEN, Attorney, Office of General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
______________________
Before PROST, MAYER, and REYNA, Circuit Judges.
PER CURIAM.
Lawrence Alan Levine seeks review of two final or-
ders of the Merit Systems Protection Board (“board”):
Levine v. Dep’t of the Army, No. DC-0752-10-0529-I-1,
2012 MSPB LEXIS 3400 (June 14, 2012) (“Timeliness
Order”); Levine v. Dep’t of the Army, No. DE-315H-11-
0517-I-1, 2012 MSPB LEXIS 3399 (June 14, 2012) (“Ju-
risdictional Order”). We affirm both orders.
I. BACKGROUND
In February 2010, Levine began working for the Unit-
ed States Army as an Intelligence Specialist. This posi-
tion was subject to the completion of a one-year trial
period. In a letter dated April 12, 2010, the Army notified
Levine that he was being removed from his position
“because [his] work performance during [his] trial period
fail[ed] to demonstrate . . . fitness and qualification for
continued employment.”
Levine appealed his termination to the board, arguing
that the Army’s removal decision was based upon “incom-
LAWRENCE LEVINE v. MSPB 3
plete and inaccurate information.” In an initial decision
dated August 5, 2010, an administrative judge dismissed
the appeal for lack of jurisdiction. Citing 5 U.S.C.
§ 7511(a)(1)(B), the judge explained that board appeal
rights are generally available only to those employees who
have “completed 1 year of current continuous service in
the same or similar positions in an Executive agency or in
the United States Postal Service or Postal Rate Commis-
sion.” Because Levine had less than one year of continu-
ous government service at the time of his removal—and
he made no non-frivolous allegations that his termination
was based upon his marital status or partisan political
reasons—the administrative judge concluded that the
board had no jurisdiction over his appeal. The judge
rejected Levine’s argument that he had a right to appeal
to the board because he was hired pursuant to the Veter-
ans Readjustment Act (“VRA”), noting that the “unrefuted
record” established that Levine was not hired pursuant to
the VRA.
The administrative judge’s initial decision specifically
informed Levine that if he wished to file a petition for
review with the board, he was required to do so by Sep-
tember 9, 2010. Levine, however, did not file a petition
for review until December 19, 2011, more than fifteen
months after the filing deadline. On June 14, 2012, the
board issued a final order dismissing his petition for
review as untimely filed. The board noted that Levine’s
filing delay was “quite lengthy,” Timeliness Order, 2012
MSPB LEXIS 3400, at *3, and concluded that he had
failed to show good cause for the delay, id. at *5.
On April 25, 2011, Levine secured a new position with
the Army, this time as a Training Instructor with the
Army’s Counterinsurgency Center. This appointment was
also subject to a one-year probationary period. In his
application for the position, Levine averred that he had
not been “fired from any job for any reason” in the previ-
ous five years.
4 LAWRENCE LEVINE v. MSPB
On July 1, 2011, the Army notified Levine that it pro-
posed to remove him from his position as a Training
Instructor based upon his failure to disclose that he had
previously been terminated from his position as an Intel-
ligence Specialist. The Army provided him with an oppor-
tunity to respond to the proposed termination notice, and
Levine thereafter submitted a lengthy response. The
Army subsequently issued a written notice informing
Levine that he would be removed from his position effec-
tive August 2, 2011.
Levine appealed to the board. On September 13,
2011, an administrative judge issued an acknowledgment
order informing Levine that the board might not have
jurisdiction over his appeal because he was serving as a
probationary employee at the time of his termination. In
response, Levine indicated that he had been in contact
with Army employees, including officials in the Office of
Inspector General, regarding his termination and that he
had “made good-faith attempts to resolve [the] matter
through the chain of command.”
In an initial decision, dated November 14, 2011, the
administrative judge dismissed Levine’s appeal for lack of
jurisdiction. The judge determined that the board had no
jurisdiction over the appeal because he was terminated
from his position as a Training Instructor during his
probationary period and the Army had fully complied
with the procedures required by 5 C.F.R. § 315.805 when
it removed him.
Levine then filed a timely petition for review with
the board, but the board denied his petition on June 14,
2012. The board rejected the argument that the Army
had failed to follow the procedural requirements set forth
in section 315.805, concluding that Levine had been
properly provided with advance written notice of his
proposed termination and that the Army had afforded
him an adequate opportunity to respond to the notice
LAWRENCE LEVINE v. MSPB 5
proposing his removal. Jurisdictional Order, 2012 MSPB
LEXIS 3399, at *6-7.
Levine subsequently filed two appeals with this court:
(1) an appeal seeking review of the board’s decision to
dismiss, as untimely filed, his petition for review of the
initial decision dismissing his challenge to the Army’s
decision to remove him from his position as an Intelli-
gence Specialist; and (2) an appeal seeking review of the
board’s decision denying his petition for review of the
initial decision dismissing, for lack of jurisdiction, his
challenge to the Army’s decision to terminate him from
his position as a Training Instructor. We granted Lev-
ine’s motion to consolidate his appeals on April 25, 2013.
II. DISCUSSION
Our review of a decision of the board is circumscribed
by statute. We can set aside a board decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). We review the board’s deci-
sions regarding its own jurisdiction without deference.
King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996).
A. THE BOARD’S TIMELINESS ORDER
We turn first to Levine’s challenge to the Army’s deci-
sion to remove him from his position as an Intelligence
Specialist. In its Timeliness Order, the board concluded
that Levine had failed to establish good cause for his
fifteen-month delay in filing his petition for review of the
initial decision dismissing his appeal for lack of jurisdic-
tion. The board “has broad discretion to control its own
docket.” Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388
(Fed. Cir. 1994). Accordingly, “whether the regulatory
time limit for an appeal should be waived based upon a
showing of good cause is a matter committed to the
6 LAWRENCE LEVINE v. MSPB
Board’s discretion and this court will not substitute its
own judgment for that of the Board.” Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc).
A petitioner who files a petition for review past the fil-
ing deadline bears the burden of establishing that there
was “good cause” for his delay. Zamot v. Merit Sys. Prot.
Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003). Factors im-
portant in determining whether there was good cause for
an untimely filing include the length of the delay, wheth-
er the petitioner was notified of the time limit, the exist-
ence of circumstances beyond the petitioner’s control that
affected his ability to comply with the deadline, and
whether there was any unavoidable misfortune or other
circumstance that may have prevented the timely filing of
a petition for review. Id.
As the board correctly determined, Levine failed to es-
tablish good cause for filing his petition for review fifteen
months past the filing deadline. Levine’s filing delay was
substantial, and he presented no evidence showing that
he acted with due diligence or ordinary prudence in
attempting to meet the filing deadline. Before the board,
Levine asserted that he had good cause for his untimely
filing because he had only recently learned that the Army
should have provided him with appeal rights to the Secre-
tary of Defense before terminating him from his position
as an Intelligence Specialist. However, he failed to cite
any statute or regulation that gave him the right to
appeal his termination directly to the Secretary of De-
fense. See Timeliness Order, 2012 MSPB LEXIS 3400, at
*4-5.
On appeal, Levine alleges that he “began to experi-
ence harassment from defense contract management”
soon after he arrived in Afghanistan, and that when he
attempted to use “government-furnished computers to
support his mission, he was publically accused of having
LAWRENCE LEVINE v. MSPB 7
an ‘entitlement mentality.’” He further asserts that his
“confidential medical information” was improperly dis-
closed to employees of a defense contractor. Levine alleg-
es, moreover, that various individuals took part “in a
deliberate campaign to malign [his] integrity, reputation
and honor.” These unsupported allegations do not, how-
ever, provide any reasonable explanation for why Levine
waited fifteen months after the filing deadline to file his
petition for review. Because the record contains no evi-
dence demonstrating that circumstances beyond his
control prevented Levine from submitting his petition for
review in a timely manner, the board did not abuse its
discretion in refusing to waive the filing deadline. See
Zamot, 332 F.3d at 1377 (explaining that a petitioner
bears a “heavy burden” when attempting to show “that
the Board abused its discretion in finding that he failed to
show good cause for the delay in filing his petition for
review”).
B. THE BOARD’S JURISDICTIONAL ORDER
The board likewise correctly determined that it had
no jurisdiction to consider Levine’s appeal challenging the
Army’s decision to remove him from his position as a
Training Instructor. As discussed previously, the Army
removed Levine, during his probationary period, for
failing to disclose the fact that he had previously been
terminated from his position as an Intelligence Specialist.
Probationary employees have very limited rights to ap-
peal to the board. See Carrow v. Merit Sys. Prot. Bd., 626
F.3d 1348, 1352 (Fed. Cir. 2010); Bante v. Merit Sys. Prot.
Bd., 966 F.2d 647, 649-50 (Fed. Cir. 1992). In general, a
probationary employee can appeal to the board only if he
makes non-frivolous allegations that: (1) he was termi-
nated based on marital status or for partisan political
reasons; or (2) he was terminated for pre-appointment
reasons and the agency failed to follow the procedures
required by section 315.805. See 5 C.F.R. § 315.806;
8 LAWRENCE LEVINE v. MSPB
Pierce v. Gov. Printing Office, 70 F.3d 106, 108 (Fed. Cir.
1995).
As the board correctly determined, Levine failed to
carry his burden of establishing that the board had juris-
diction over his appeal. See Garcia v. Dep’t of Homeland
Sec., 437 F.3d 1322, 1344 (Fed. Cir. 2006) (en banc) (ex-
plaining that the petitioner bears the burden of establish-
ing board jurisdiction by a preponderance of the evidence).
Before the board, he made no non-frivolous allegations
that he was terminated based on his marital status or for
partisan political reasons. The record shows, moreover,
that the Army followed the procedures mandated by
section 315.805 when it removed Levine from his position
as a Training Instructor. See Younies v. Merit Sys. Prot.
Bd., 662 F.3d 1215, 1218 (Fed. Cir. 2011) (“The right to
appeal under § 315.806(c) is only available to those proba-
tionary employees who qualify for, but allegedly do not
receive, the termination procedures of § 315.805.”). He
was provided with advance written notice of the reasons
for his proposed termination, and was given fourteen days
to prepare a response to this notice. Levine submitted a
lengthy response, which totaled 145 pages with enclo-
sures. After receiving this response, the Army provided
Levine with written notice of its final decision to termi-
nate him effective August 2, 2011. See Jurisdictional
Order, 2012 MSPB LEXIS 3399, at *6-7.
Levine contends that he has a “Liberty Interest that
demands redress through Due Process of Law and pro-
vides [board] jurisdiction.” We disagree. A government
employee who has completed his probationary period is
afforded a number of protections, including, under many
circumstances, the right to appeal adverse actions to the
board. See 5 U.S.C. § 7513. Probationary employees such
as Levine do not, however, have the same procedural
rights and can appeal to the board only under very lim-
ited circumstances. See 5 C.F.R. § 315.803(a) (“The
agency shall utilize the probationary period as fully as
LAWRENCE LEVINE v. MSPB 9
possible to determine the fitness of the employee and
shall terminate his services during this period if he fails
to demonstrate fully his qualifications for continued
employment.”).
We have considered Levine’s remaining arguments
but do not find them persuasive. We therefore affirm
both the board’s Timeliness Order and its Jurisdictional
Order.
AFFIRMED