ILLona A. Ramsey v. Department of Homeland Security ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ILLONA A. RAMSEY, DOCKET NUMBER
Appellant, DC-0432-14-0918-I-2
v.
DEPARTMENT OF HOMELAND DATE: May 29, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
ILLona A. Ramsey, Wardensville, West Virginia, pro se.
David Myers, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely refiled. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency removed the appellant for unacceptable performance and the
appellant filed an appeal with the Board. See Ramsey v. Department of Homeland
Security, MSPB Docket No. DC-0432-14-0918-I-1, Initial Appeal File (IAF),
Tabs 1, 7 at 104. The appellant subsequently asked the administrative judge to
dismiss her appeal without prejudice for a period of 90 days to obtain legal
counsel. IAF, Tab 8. The administrative judge issued an initial decision granting
the appellant’s request and dismissing the appeal without prejudice to refiling for
a period of up to 120 days. IAF, Tab 9, Initial Decision (I-1 ID) at 3. In the
initial decision, the administrative judge advised the appellant that she could not
refile her appeal sooner than 36 days after the September 8, 2014 initial decision.
Id. The administrative judge also warned the appellant that her failure to refile
her appeal in time for receipt by the Board within 120 days of the September 8,
2014 initial decision would result in the dismissal of her appeal with prejudice to
refiling. Id. The administrative judge noted that during the teleconference he
explained that the appellant was required to refile her appeal within the 120-day
period to be timely and that the appellant stated that she understood. I-1 ID
at n.*.
3
¶3 On January 22, 2015, the pro se appellant refiled her appeal 16 days after
the expiration of the January 6, 2015 filing deadline. See Ramsey v. Department
of Homeland Security, MSPB Docket No. DC-0432-14-0918-I-2, Refiled Appeal
File (RAF), Tab 1. The administrative judge informed the appellant that she
refiled her appeal late and advised her of the applicable standards for determining
whether good cause existed to waive the refiling deadline. RAF, Tab 2 at 2. The
administrative judge also ordered the appellant to file evidence and argument to
support a finding of good cause to waive the refiling deadline. Id. at 3. The
appellant failed to respond to the administrative judge’s order, and the agency
filed a motion to dismiss the appeal. RAF, Tab 3.
¶4 The administrative judge issued an initial decision dismissing the appeal
with prejudice to refiling based on his finding that the unrefuted record proved
that the appellant refiled an untimely appeal without a showing of good cause.
RAF, Tab 4, Initial Decision at 4. In reaching his decision, the administrative
judge noted that he explicitly warned the appellant that her failure to refile her
appeal on time would result in the dismissal of her appeal with prejudice to
refiling and that the appellant provided no evidence or argument to support
finding good cause to waive the refiling deadline. Id. The appellant filed a
petition for review of the initial decision explaining that she was confused about
the refiling deadline and asking the Board to reopen her appeal. Petition for
Review (PFR) File, Tab 1 at 3. The agency filed a response in opposition to her
petition. PFR File, Tab 3.
¶5 The Board has identified specific standards for determining whether good
cause exists for excusing an untimely-refiled appeal of a matter previously
dismissed without prejudice. Sherman v. U.S. Postal Service, 118 M.S.P.R. 265,
¶ 9 (2012). These include the following: the appellant’s pro se status; the
timeliness of the initial appeal; the appellant’s demonstrated intent throughout the
proceedings to refile the appeal; the length of the delay in refiling; confusion
surrounding and arbitrariness of the refiling deadline; the number of prior
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dismissals without prejudice; the agency’s failure to object to the dismissal
without prejudice; and the lack of prejudice to the agency in allowing the refiled
appeal. Id.¶6 For the first time on review, the appellant argues that she erroneously
assumed that the first 36 days “were not to be considered towards the 120 day
period that [she] had to re-submit [her] case.” PFR File, Tab 1 at 3. The Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that the appellant based her argument on new and
material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant
in this case did not make the required showing in her petition for review.
Moreover, the appellant also failed to respond to the administrative judge’s show
cause order, or to the agency’s motion to dismiss her refiled appeal, and she
failed to explain in her petition for review why she did not respond below. As a
result, we find that the administrative judge properly dismissed the appeal as
untimely refiled without a showing of good cause. 2 See Sledge v. Department of
Justice, 44 M.S.P.R. 455, 459, aff’d, 923 F.2d 870 (Fed. Cir. 1990) (Table).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
2
The in itial decision dismissing this appeal without prejudice to refiling clearly
informed the appellant of the 120-day deadline for refilin g her appeal, and the Board
has declined to find good cause for an untimely filing where, as here, the initial
decision clearly notified the appellant of the filing time lim it. See Crook v. U.S. Postal
Service, 108 M.S.P.R. 553, ¶ 6 (2008), aff’d, 301 F. App’x 982 (Fed. Cir. 2008).
Moreover, the undisputed record reflects that the administrative judge explained the
refiling deadline to the appellant at the teleconference. I-1 ID at 3 n.*; RAF, Tab 2
at 1-2.
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States 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 Merit Systems Protection Board neither endorses the services
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provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.