Joseph Wilbur, Jr. v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH WILBUR, JR., DOCKET NUMBER
Appellant, AT-0731-16-0356-I-1
v.
DEPARTMENT OF HOMELAND DATE: September 2, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Joseph Wilbur, Jr., Daphne, Alabama, pro se.
Linda L. Bowers, Esquire, Lincoln, Nebraska, 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. 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 regulation
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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. 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, 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 appellant filed this appeal contesting a finding of the Department of
Homeland Security (DHS) that he was unsuitable for agency employment. Initial
Appeal File (IAF), Tab 1 at 1, 3. DHS issued the unsuitability decision on
February 5, 2015. Id. at 7. The appellant filed this appeal on February 9,
2016. Id. at 1. On March 16, 2016, the administrative judge issued a timeliness
order, indicating that the appeal appeared to be late by 339 days and ordering the
appellant to present evidence and argument showing that his appeal was timely
filed or good cause existed for the delay in filing. IAF, Tab 5 at 1-4. In response
to that order, the appellant explained that he had been on a military deployment
between February 3, 2015, and September 23, 2015. IAF, Tab 6 at 14-15, 26,
30-31, Tab 8. Accordingly, the administrative judge found that the time for
filing the appeal was tolled under the Servicemembers Civil Relief Act (SCRA).
IAF, Tab 9; see 50 U.S.C. § 3936(a). Based on the appellant’s September 23,
2015 release from military service, the administrative judge issued a second
timeliness order indicating that his appeal appeared to be 109 days late. IAF,
Tab 9 at 2-4. The appellant responded to the order, as did the agency. IAF,
Tabs 10-11. The administrative judge then concluded that the appellant failed to
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establish good cause for waiving the filing deadline and dismissed the appeal as
untimely filed. IAF, Tab 12, Initial Decision (ID) at 4-5.
¶3 The appellant filed a petition for review wherein he argues that he was
unaware that an investigation of incidents related to his resignation from the
Occupational Safety and Health Administration (OSHA) had been completed.
Petition for Review (PFR) File, Tab 1 at 5; see IAF, Tab 1 at 6. The investigation
formed the basis for DHS to issue a November 18, 2014 Notice of Proposed
Action (NOPA) regarding the appellant’s suitability for employment at DHS.
IAF, Tab 1 at 7-10. The appellant asserts that he was unable to respond to the
NOPA because of his deployment. PFR File, Tab 1 at 5. DHS later made a
negative suitability finding upon which this appeal is based. PFR File, Tab 1
at 5; see IAF, Tab 1 at 7-10. On review, the appellant seeks to present reasons
why the negative suitability finding was incorrect. PFR File, Tab 1 at 5. He also
reargues his position from below as to why the Board should waive the filing
deadline for his appeal: that when he returned from his deployment, he had to
deal with “a backlog of mail,” family issues, readjustment to civilian life, and
ongoing unemployment. Id. at 6. He additionally asserts that the availability of
new and material evidence—his response to the NOPA—is sufficient reason for
the Board to waive the filing deadline. Id. at 6-8.
¶4 The appellant’s arguments are unavailing. The administrative judge
correctly found that the deadline for filing the appeal was extended under SCRA
based on the appellant’s September 23, 2015 release from military service, and
his appeal should have been filed by October 23, 2015. ID at 2; see 50 U.S.C.
§ 3936(a); Neighoff v. Department of Homeland Security, 122 M.S.P.R. 86,
¶¶ 6-10 (2015). The appeal was filed via e‑Appeal on February 9, 2016, which is
109 days past the October 23, 2015 filing deadline. IAF, Tab 1.
¶5 When an appeal is filed late, an administrative judge may waive the Board’s
regulatory filing deadline if the appellant shows good cause for the late
filing. 5 C.F.R. §§ 1201.12, 1201.22(c). To establish good cause, an appellant
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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). 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 circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. 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 Although the appellant is pro se, a 109-day delay in filing is not a minimal
one, as the administrative judge correctly pointed out. ID at 3. DHS’s final
decision specifically informed the appellant that he had a 30-day deadline for
filing a Board appeal. IAF, Tab 1 at 9; see 5 C.F.R. § 1201.22. Although a brief
delay caused by personal issues and the need to sift through mail accumulated
during a half-year absence would be understandable, a 109-day delay is excessive
and suggests that the appellant was neglectful in exercising his appeal rights. The
appellant has not alleged any circumstances rising to unavoidable casualty or
misfortune that would have affected his ability to timely file an appeal. As the
administrative judge explained, the appellant’s assertion that he could not find the
Board’s appeal form is likewise unconvincing. ID at 4.
¶7 We also reject the appellant’s assertion that he offers new and material
evidence on review, in the form of his response to the NOPA. For the Board to
accept such evidence as new, an appellant must show that it was unavailable
despite his due diligence before the record in the proceeding below closed.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the NOPA
was issued on November 18, 2014, IAF, Tab 1 at 7, prior to the appellant’s
deployment, see IAF, Tab 6 at 26, 29-31. Additionally, the record in the
proceeding below includes the appellant’s post-deployment response to the
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NOPA. Id. at 5-14. Evidence that is already a part of the record is not new.
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see Grassell v.
Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed to constitute
new evidence). In any event, the appellant’s response to the NOPA pertains to
the merits of his appeal and not to the administrative judge’s dismissal for
untimely filing. Accordingly, we affirm the administrative judge’s finding that
the appeal was untimely filed without good cause shown for the delay in filing.
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 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.
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.