Timothy Winey v. Department of Defense ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY WINEY, DOCKET NUMBER
Appellant, DC-0432-12-0839-I-4
v.
DEPARTMENT OF DEFENSE, DATE: August 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Joshua N. Rose, Esquire, Silver Spring, Maryland, for the appellant.
Carla Eldred, APO/AE, 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 as untimely refiled his appeal of a performance-based action.
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 or the erroneous application of
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. Except as
expressly MODIFIED by this Final Order, we AFFIRM the initial decision.
Specifically, we MODIFY the initial decision to address and reject the appellant’s
argument that good cause exists for the untimeliness of his refiled appeal because
the Board did not send him notice that his refiled appeal was untimely.
¶2 The appellant filed an appeal of his removal, which the administrative judge
dismissed without prejudice for 180 days pending the resolution of a related equal
employment opportunity (EEO) complaint. The appellant timely refiled, and the
administrative judge again dismissed the appeal without prejudice because the
EEO complaint was still pending. The administrative judge then dismissed the
appeal without prejudice a third time for the same reason. Winey v. Department
of Defense, MSPB Docket No. DC-0432-12-0839-I-3, Initial Decision
(Nov. 13, 2013). The administrative judge informed the appellant that he could
refile his appeal no sooner than 36 days and no later than 180 days from the date
of the initial decision. Id. at 4. The administrative judge further informed the
appellant that any failure to timely refile his appeal would result, absent a
showing of good cause, in the dismissal of the appeal with no right to refile. Id.
¶3 On November 24, 2015, the appellant refiled his appeal approximately
18 months late. Winey v. Department of Defense, MSPB Docket No. DC-0432-
12-0839-I-4, Appeal File (I-4 AF), Tab 1. The administrative judge ordered the
appellant to show cause why the refiled appeal should not be dismissed as
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untimely. I-4 AF, Tab 2. In response, the appellant argued that communications
between him and his former counsel broke down, he only recently learned that the
Equal Employment Opportunity Commission issued a decision in his complaint,
and he was never served with any pleadings or decisions in his Board appeals.
I-4 AF, Tab 3. The administrative judge dismissed the refiled appeal as untimely
filed with no showing of good cause for the filing delay. Initial Decision (ID)
at 7-11.
¶4 As the administrative judge noted, the appellant’s arguments are very
confusing. He appears to contend on review that good cause exists because his
counsel did not keep him apprised of activity in his appeal. Petition for Review
(PFR) File, Tab 1 at 2. The administrative judge correctly stated that it was not
clear whether the appellant’s counsel had terminated his representation of the
appellant. ID at 8-9. The appellant alleges on review that he is still represented
by counsel and that it is the Board’s burden to prove that he is not. PFR File,
Tab 1 at 3-4. Regardless, the appellant remained personally responsible for the
prosecution of his appeal. Helmstetter v. Department of Homeland
Security, 106 M.S.P.R. 101, ¶ 3 (2007). The appellant is responsible for the
errors of his chosen representative, except when he has proven that his diligent
efforts to prosecute his appeal were thwarted. Id. The appellant was a registered
e-filer and was properly served with all of the documents in his case, as he now
concedes. Therefore, he was on notice that the deadline for refiling his appeal
was 180 days from the date of the initial decision. He implicitly seems to
contend that he did not refile himself because he relied on his counsel to refile for
him. PFR File, Tab 1 at 2-3. However, the appellant does not claim, and there is
no evidence, that he affirmatively monitored the progress of his appeal rather than
merely waited to be informed of the next step. Belcher v. U.S. Postal
Service, 101 M.S.P.R. 58, ¶ 7 (2006). Therefore, the appellant has not shown that
his diligent efforts to prosecute his appeal were thwarted, and has not established
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sufficient grounds to overcome the well-established rule that an appellant is
responsible for the mistakes of his representative.
¶5 The appellant’s main argument on review is that he never received any
notice from the Board that the refiling period had elapsed or was about to elapse.
PFR File, Tab 1 at 4-6. The Board already had informed the appellant of the
refiling deadline in the initial decision. It was the appellant’s responsibility to
keep track of time. The Board does not send out reminders to parties that a
deadline is upcoming or has passed, and we are aware of no authority that
obligates the Board to do so.
¶6 Finally, the appellant may be attempting to argue that the administrative
judge was biased against him. Id. at 6-7. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation, 1 M.S.P.R. 382, 386 (1980). The appellant’s
apparent claim is based entirely on the rulings that the administrative judge made
during the adjudication of the appeal, and is therefore unpersuasive. Vaughn v.
Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013). Accordingly, we
deny the appellant’s petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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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 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.
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FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.