Laura Limbrick v. Department of the Treasury ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA A. LIMBRICK, DOCKET NUMBER
Appellant, DA-0752-21-0293-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: April 27, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kristopher K. Ahn, Esquire, Houston, Texas, for the appellant.
Bridgette Gibson, Esquire, and Shelley Poe, Esquire, Dallas, Texas, for the
agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal. Generally, we grant petitions such as this one only
in the following circumstances: the initial decision contains erroneous findings
of material fact; the initial decision is based on an erroneous interpretation of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
statute or regulation or the erroneous application of the law to the facts of the
case; the administrative 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. 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, 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 On petition for review, the appellant does not challenge the administrative
judge’s finding that her appeal was untimely filed. Petition for Review (PFR)
File, Tab 9 at 5-16. Rather, she challenges the merits of her underlying removal
and raises several arguments regarding good cause for her filing delay. Id.
at 5-16, 47. The appellant repeats her argument about being displaced from her
home and dealing with her child’s hospitalization. Id. at 14, 20-23; Initial Appeal
File (IAF), Tab 7 at 1, 4, Tab 11 at 4-7. She also raises new timeliness
arguments. The appellant maintains that her receipt of the decision letter was not
sufficient notice of her Board appeal rights due to her medical condition affecting
her vision in one eye, and that her “partial blindness” affected her ability to file
an appeal. PFR File, Tab 1 at 14, 19, 23. She argues that the filing deadline is
not jurisdictional and that the agency would not be prejudiced if the Board
waived the deadline. Id. at 15. Finally, she asserts that she acted “promptly and
without delay” in filing her appeal once she found her letter. Id. at 16.
¶3 The appellant also submits new evidence in support of her timeliness
argument, namely documents concerning the presidential declaration of a national
emergency concerning Covid-19 and notices of the relaxing of certain
administrative procedures by the Texas Supreme Court and the U.S. Department
3
of Labor due to the pandemic. PFR File, Tab 9 at 25-36. Although the appellant
referred generally to “Stay at Home orders” during the Covid -19 pandemic in her
timeliness response, IAF, Tab 11 at 6, her representative argues on review that
her filing deadline should have been stayed as of March 1, 2020, when the
national emergency was declared, PFR File, Tab 9 at 15 -16.
¶4 Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). The appellant
offers no explanation why she did not submit this evidence or raise these new
arguments in her timeliness response. PFR File, Tab 9 at 14-16; IAF, Tab 11.
The fact that the appellant has a new representative on review is not grounds to
consider argument and evidence that was not raised during t he pendency of the
appeal. PFR File, Tab 9 at 47. In any event, none of these arguments support a
finding of good cause for the filing delay.
¶5 The appellant has provided no basis for disturbing the initial decision. The
administrative judge considered the relevant factors and made reasoned findings
that the appellant failed to establish good cause to waive the filing deadline. IAF,
Tab 19, Initial Decision (ID) at 3-9; see 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).
Although the appellant was pro se during the pendency of her appeal, a 15-month 2
2
The administrative judge correctly found that the deadline to file an initial appeal was
March 2, 2020. ID at 3. However, he incorrectly calculated the length of the filing
delay as 464 days. Id. The appellant’s June 7, 2021 initial appeal was filed 462 da ys
after the filing deadline. However, this discrepancy is immaterial. The appellant has
failed to show that her appeal was timely or that good cause existed for the significant
delay of over 15 months.
4
delay is lengthy. See Smith v. Department of the Army, 110 M.S.P.R. 50, ¶ 10
(2008) (stating that a filing delay of 15 months is significant). As noted by the
administrative judge, the appellant offered no explanation why, if she moved back
to her home in January 2021, she did not file her appeal until June 2021. ID at 4.
The appellant’s statement on review that she “finally unloaded her suitcases that
she was living out of for the past two years and found the January 29, 2020
termination letter” does not demonstrate due diligence in challenging her
removal. PFR File, Tab 9 at 14; see Moorman, 68 M.S.P.R. at 63. Similarly, the
appellant’s conclusory argument about the Covid -19 pandemic provides no
explanation why she was unable to file an appeal until June 2021, but able to do
so at that time while the pandemic was ongoing. PFR File, Tab 9 at 15-16.
¶6 The administrative judge correctly noted that the appellant first claimed that
the agency had not provided her with the removal decision letter , but later
submitted a copy of it into the record and acknowledged receiving the letter
during a meeting with management. ID at 5; IAF, Tab 1 at 16, Tab 7 at 6-10,
Tab 11 at 5. On review, she maintains that she was given “no instructions for
appeal,” but instead was “only given [the decision letter] and escorted out of the
building.” PFR File, Tab 1 at 21. However, the decision letter explicitly
provides detailed information regarding Board appeal rights. IAF, Tab 7 at 8 -9.
Despite her representative’s argument that her partial blindness in one eye
affected her ability to read the decision letter and the Board appeal rights, the
appellant does not raise this issue in her signed statement, instead maintaining
that she did not understand that the letter was a removal decision. Id. at 14, 19,
21-22. The appellant has set forth no facts that could support a finding of good
cause due to illness or incapacity. See Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998) (setting forth the factors a party must establish to
demonstrate that an untimely filing was the result of illness or incapacity).
Finally, regarding the appellant’s argument that the Board should waive her
untimely filing because the issue of timeliness is not jurisdictional, her citation to
5
a U.S. Supreme Court case concerning the adjudication of veterans’ benefit
claims before the Department of Veterans Affairs is not relevant to the Board’s
regulations concerning timeliness and waiver for good cause shown. PFR File,
Tab 9 at 15 (citing Henderson v. Shinseki, 562 U.S. 428 (2011)); 5 C.F.R.
§ 1201.22(b)-(c).
NOTICE OF APPEAL RIGHTS 3
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 withi n 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
3
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
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:
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 Fo rms 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 ob tain
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
7
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
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(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. 4 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.
4
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 judi cial 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
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 w ebsite 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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.