Carlos Garza, Jr. v. Department of Homeland Security ( 2016 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    CARLOS GARZA, JR.,                              DOCKET NUMBER
    Appellant,                         DA-0752-15-0161-I-1
    v.
    DEPARTMENT OF HOMELAND                          DATE: January 11, 2016
    SECURITY,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Carlos Garza, Jr., McAllen, Texas, pro se.
    Eric J. Drootman, Edinburg, Texas, 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 his appeal as untimely filed without good cause shown.              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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    ¶2         On December 1, 2014, the appellant received a decision letter informing
    him that the agency was removing him from his GS-12 Border Patrol Agent
    position for conduct unbecoming a Border Patrol Agent effective that day. Initial
    Appeal File (IAF), Tab 5 at 12-15. The decision letter informed the appellant that
    he could contest his removal by electing one of several procedures outlined in the
    letter and provided the time limits for each option. 
    Id. at 13-15
    . The appellant
    filed an appeal through the Board’s electronic filing system, e-Appeal, on
    January 4, 2015, 4 days past the deadline for filing a Board appeal. IAF, Tab 1;
    see IAF, Tab 5 at 13-14.
    ¶3         On January 9, 2015, the administrative judge notified the appellant that his
    appeal appeared to be untimely filed and ordered him to submit evidence and
    argument within 10 calendar days showing that his appeal was timely filed or, in
    the alternative, that good cause existed for the delay. IAF, Tab 3. The appellant
    did not respond, and, on March 17, 2015, the administrative judge issued an
    initial decision dismissing the appeal as untimely filed without good cause shown
    for the delay. IAF, Tab 7, Initial Decision (ID). The initial decision advised the
    appellant that he had the option to file a petition for review with the Board by
    April 21, 2015, or, if he proved that he received the initial decision more than
    5 days after the date of issuance, within 30 days after the date he received the
    initial decision. ID at 4-5.
    ¶4         On August 25, 2015, the appellant submitted a request to reopen “an appeal
    dismissed without prejudice.”     Petition for Review (PFR) File, Tab 1.         On
    September 2, 2015, the Clerk of the Board issued an acknowledgment letter
    informing the appellant that the initial decision did not dismiss his appeal without
    prejudice, but rather dismissed it as untimely filed and that the Board would
    consider his request to reopen as a petition for review of the initial decision. PFR
    File, Tab 4 at 1. The acknowledgement letter further informed the appellant that
    3
    his petition for review was untimely filed because it was not postmarked or
    received by the Board on or before April 21, 2015, the 35 th day following the
    issuance of the initial decision. 
    Id. at 2
    . The letter directed the appellant to
    submit a motion asking the Board to accept his petition for review as timely filed
    or to waive the time limit for good cause, accompanied by a statement signed
    under penalty of perjury or an affidavit showing either that his petition was
    timely filed or that there is good cause for the late filing, on or before
    September 17, 2015. 
    Id.
     On October 5, 2015, the Board received the appellant’s
    affidavit and motion to waive the time limit on the grounds that, among other
    things, he did not understand that he could request review of the initial decision
    and that he had been in a “depressive state” for months after his termination. 2
    PFR File, Tab 6 at 2-5. The agency responded in opposition to the appellant’s
    petition for review. PFR File, Tab 5.
    DISCUSSION OF ARGUMENTS ON REVIEW
    ¶5         The Board will waive its filing deadline only upon a showing of good cause
    for the delay in filing. 
    5 C.F.R. § 1201.114
    (g). To establish good cause for the
    untimely filing of a petition for review, an appellant must show that he exercised
    due diligence or ordinary prudence under the particular circumstances of the case.
    Gaetos v. Department of Veterans Affairs, 
    121 M.S.P.R. 201
    , ¶ 5 (2014); Alonzo
    v. Department of the Air Force, 
    4 M.S.P.R. 180
    , 184 (1980). To determine if 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
    2
    The appellant’s motion to waive the time limit for his petition for review was untimely
    filed by at least 10 days; the Clerk of the Board directed him to submit a motion on or
    before September 17, 2015, but his motion was dated September 27, 2015, and was
    received by the Clerk of the Board on October 5, 2015. PFR File, Tab 4 at 2, Tab 6.
    Because the appellant’s motion to waive the time limit is itself untimely filed without
    good cause shown, we need not consider it.
    4
    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 timely file his petition. Gaetos, 
    121 M.S.P.R. 201
    ,
    ¶ 5; 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).
    ¶6        As stated in the initial decision and the petition for review acknowledgment
    letter, the deadline for filing a petition for review of the March 17, 2015 initial
    decision was April 21, 2015. ID at 4; PFR File, Tab 4 at 2. Thus, the appellant’s
    August 25, 2015 petition for review was filed approximately 4 months late, which
    is significant. See, e.g., Bennett v. Department of Veterans Affairs, 
    97 M.S.P.R. 1
    , ¶ 7 (2004) (finding a more than 3-month delay significant); Summers v. U.S.
    Postal Service, 
    87 M.S.P.R. 403
    , ¶¶ 6, 12 (2000) (finding delays of nearly
    1 month and of 15 days significant), aff’d, 25 F. App’x 827 (Fed. Cir. 2001). As
    noted above, the Clerk of the Board issued a petition for review acknowledgment
    letter to the appellant, which, in part, informed him that his petition for review
    was untimely filed and afforded him the opportunity to show good cause for his
    filing delay. PFR File, Tab 4. However, the appellant failed to respond to the
    acknowledgment letter within the time limit provided and, when he did respond,
    failed to offer any explanation as to why he had been unable to submit a timely
    response.     PFR File, Tab 6.   Thus, despite his pro se status, we find that the
    appellant has failed to demonstrate good cause for the untimeliness of his petition
    for review. See Garside v. Office of Personnel Management, 
    109 M.S.P.R. 65
    ,
    ¶ 6 (2008).
    ¶7        Even if we were to consider the appellant’s untimely motion to waive the
    time limit for his untimely petition for review, the outcome would be the same.
    In his affidavit, the appellant states that he thought his appeal was dismissed in
    January 2015, and that he did not understand that he could file a petition for
    review of the initial decision. PFR File, Tab 6 at 2-3. An appellant’s confusion
    5
    and lack of sophistication, which contribute to a late filing, may be taken into
    account when determining whether good cause for a late filing exists. Forst v.
    Office of Personnel Management, 
    97 M.S.P.R. 142
    , ¶ 7 (2004).          An appellant
    must show, however, that such confusion is related to a specific ambiguity in
    either the instructions he received or in a Board procedure. 
    Id.
     Here, although
    the appellant asserts that he mistakenly believed that he could not request review
    of the initial decision because his case was already closed, he has not identified a
    specific ambiguity in the initial decision or in any other instructions he received
    warranting his mistaken belief. PFR File, Tabs 1, 6. The initial decision, in fact,
    explicitly stated that the appellant could “request Board review of this initial
    decision by filing a petition for review” and explained how to do so. ID at 5.
    The initial decision further provided the appellant with the exact date on which it
    would become final unless he filed a petition for review with the Board. ID at 4.
    Thus, the appellant’s alleged confusion about his ability to request review of the
    initial decision does not contribute to a finding of good cause for his untimely
    petition for review.
    ¶8         The appellant also states in his affidavit that he was in a “depressive state”
    for months after his termination and that his “fragile mental state” may have
    contributed to his misunderstandings. PFR File, Tab 6 at 3. The Board will find
    good cause for an untimely filing when a party demonstrates that he was unable to
    timely file his petition due to illness, or mental or physical incapacity. Holley v.
    U.S. Postal Service, 
    97 M.S.P.R. 20
    , ¶ 8 (2004). To establish that the untimely
    filing was the result of a medical condition, an appellant must identify the time
    period during which he was incapacitated, submit medical evidence showing that
    he suffered from the alleged medical condition during the time period, and
    explain how the medical condition prevented him from timely filing his petition
    or a request for extension of time. 
    Id.
     Here, although the appellant was notified
    of the requirements for showing that his untimely filing was the result of a
    6
    medical condition, PFR File, Tab 4 at 7 n.1, he has failed to submit any medical
    records showing that his alleged medical condition prevented him from filing a
    timely petition for review. PFR File, Tab 6. As such, the appellant’s alleged
    medical impairment does not establish good cause for his untimely filed petition
    for review.
    ¶9         In light of the foregoing, we dismiss the appellant’s petition for review as
    untimely filed without good cause shown. 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 timeliness of
    the appellant’s initial appeal.
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    You have the right to request review of this final decision by the U.S.
    Court of Appeals for the Federal Circuit. You must submit your request to the
    court at the following address:
    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 U.S. 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 U.S. Code, at our
    7
    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 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 Merit Systems Protection Board neither endorses the services
    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.
    

Document Info

Filed Date: 1/11/2016

Precedential Status: Non-Precedential

Modified Date: 4/17/2021