Shane Dunne v. Department of Education ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANE DUNNE, DOCKET NUMBER
Appellant, CB-7121-15-0003-V-1
v.
DEPARTMENT OF EDUCATION, DATE: April 1, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Shane Dunne, San Francisco, California, pro se.
Michael S. Taylor, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant requests review of an arbitrator’s decision regarding his
removal. For the reasons set forth below, we DENY the request for review for
failure to meet the requirements of 5 C.F.R. § 1201.155(d).
¶2 The appellant was removed from his position as an Institutional Review
Specialist for poor performance. Request for Review (RFR) File, Tab 1 at 7.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
According to the appellant, he challenged his removal through arbitration
pursuant to the grievance procedure and the arbitrator issued a decision dated
September 26, 2014. RFR File, Tab 2 at 1. On October 26, 2014, the appellant
filed a request for review of the arbitrator’s decision with the Board. RFR File,
Tab 1. In his request for review, the appellant raised claims of harmful
procedural error and prohibited personnel practice, but did not address any of the
arbitrator’s findings. See id. at 5. The appellant also submitted copies of the
agency’s proposal notice and a Standard Form 50 evidencing his removal. 2 Id.
at 7, 9-21.
¶3 On October 28, 2014, the appellant filed a motion for an extension of time
to supplement his request for review. RFR File, Tab 2. On November 4, 2014,
the Clerk of the Board issued a notice to the parties informing them of the
docketing of the appellant’s request for review and notifying the appellant that he
was required to provide the Board with the information required under 5 C.F.R.
§ 1201.155(d). RFR File, Tab 3 at 1. The Clerk gave the appellant until
December 9, 2014, to supplement his request for review. Id.¶4 On December 9, 2014, 3 the appellant filed a request for another 10-day
extension. RFR File, Tab 5 at 5. The Clerk granted the appellant’s request and
gave him until December 19, 2014, to supplement his request for review. RFR
File, Tab 6. On December 19, 2014, 4 the appellant filed a third request for an
2
While the appellant indicates that he also has attached an expedited grievance filed on
April 2, 2013, such document is not attached to his request for review. RFR File, Tab 1
at 5. In addition, the appellant indicated that he attached the removal decision, but he
has only attached the first page of that decision. RFR File, Tab 1 at 6, 107.
3
Although the time and date stamp on the electronically filed extension of time request
indicates that the pleading was filed shortly after midn ight Eastern Time on
December 10, 2014, the Clerk deemed this pleading to have been timely filed on
December 9, 2014, because it was filed from the Pacific Time Zone. RFR File, Tab 6;
see 5 C.F.R. § 1201.14(m)(1).
4
This pleading also was filed shortly after midnight Eastern Time on December 20,
2014, and the Clerk deemed it to have been timely filed on December 19, 2014, because
3
extension of time until December 22, 2014, which also was granted. RFR File,
Tab 7 at 4, Tab 8. The appellant never filed a supplement to his request for
review and on January 5, 2014, the agency moved to dismiss the appellant’s
request for failure to comply with the requirements of 5 C.F.R. § 1201.155(d).
RFR File, Tab 9.
¶5 Now, months later and well past the deadline set by the Clerk of the Board,
the appellant (despite the fact that he received both the Clerk’s notice and the
agency response), has still failed to supplement his request for review. A prudent
person in the appellant’s position would not have neglected to respond for this
length of time. See Campa v. Office of Personnel Management, 65 M.S.P.R. 321,
323 (1994) (allowing an inordinate time period to elapse without inquiring about
the status of one’s appeal is not the act of a reasonably prudent person). The
length of time of the appellant’s failure to supplement his submission is
significant; as such, the Board may proceed on the record as provided. See, e.g.,
Goldberg v. Department of Defense, 39 M.S.P.R. 515, 517-18 (1989)
(supplemental responses filed even 7 days after the filing deadline may be denied
in the interest of judicial efficiency and fairness).
¶6 A request for review of an arbitration decision must contain: (1) a
statement of the grounds on which review is requested; (2) references to evidence
of record or rulings related to the issues before the Board; (3) arguments in
support of the stated grounds that refer specifically to relevant documents, and
that include relevant citations of authority; and (4) legible copies of the final
grievance or arbitration decision, the agency decision to take the action, and other
relevant documents. 5 C.F.R. § 1201.155(d). Because the Clerk of the Board
correctly articulated these requirements in its November 4, 2014 acknowledgment
letter, the appellant was on notice regarding the requirements. RFR File, Tab 3
at 1.
it was filed from the Pacific Time Zone. RFR File, Tab 8; see 5 C.F.R.
§ 1201.14(m)(1).
4
¶7 The appellant’s request for review is insufficient to satisfy any of the
requirements of 5 C.F.R. § 1201.155(d). Despite being granted three extensions,
the appellant has failed to provide a statement of the grounds on which review is
requested, provide references to the evidence of record or rulings related to the
issues before the Board, arguments in support of the stated grounds, or a legible
copy of the final grievance or arbitration decision. Significantly, the appellant
fails to articulate what aspects of the arbitrator’s decision he is challenging or
even provide a copy of the decision itself. Because the appellant has not met the
regulatory requirements for Board review of an arbitration decision and has
provided no reason to disturb the arbitration award, we DENY the appellant’s
request for review of the arbitration decision.
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:
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.
5
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.