Amiee Dillworth v. Department of Justice ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMIEE DILLWORTH, DOCKET NUMBER
Appellant, NY-0752-15-0196-I-1
v.
DEPARTMENT OF JUSTICE, DATE: October 29, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
J. Cathryne Watson, Esquire, Washington, D.C., for the appellant.
Marlon A. Martinez, Esquire, Washington, D.C., 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 her removal appeal as untimely. 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 the law to the facts of the case; the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 held a Supervisory Intelligence Analyst position with the
agency’s Federal Bureau of Investigation (FBI), in Albany, New York. Initial
Appeal File (IAF), Tab 8 at 7. In April 2013, the agency proposed removing her
based upon allegations of insubordination and false attendance reporting. IAF,
Tab 7 at 13-15. The appellant provided a written and an oral response to the
proposal in July 2013. Id. at 13. Days later, the deciding official issued a
decision to remove the appellant from service. Id. at 13-19. The removal was
effectuated on July 19, 2013. IAF, Tab 8 at 7.
¶3 On April 29, 2015, the appellant filed a Board appeal, challenging her
removal from service. IAF, Tab 1. After providing the parties with an
opportunity to address the timeliness of her appeal, IAF, Tabs 11, 13-14, the
administrative judge dismissed the appeal as untimely filed without good cause
shown for the delay, IAF, Tab 15, Initial Decision (ID). The appellant has filed a
petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
a response. PFR File, Tab 3.
¶4 Following her removal, the appellant challenged the action through the
FBI’s Disciplinary Review Board (DRB). IAF, Tab 13 at 6-7. The DRB issued a
final decision, affirming her removal, on March 30, 2015. Id. The appellant
argued below, and again on review, that her subsequent Board appeal is timely
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because she filed within 30 days of that DRB decision. Id. at 4; PFR File, Tab 1
at 4-5. We disagree. The appellant, in her pleadings, did not provide any
argument or evidence to show good cause for her delay in filing.
¶5 An appellant bears the burden of proof regarding the timeliness of her
appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). Generally, an appellant must file an
appeal no later than 30 days after the effective date, if any, of the action being
appealed, or 30 days after the date of her receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). If an appellant does not submit an
appeal within the time set by the applicable law or regulation, the appeal will be
dismissed as untimely filed unless a good reason for the delay is shown. 5 C.F.R.
§ 1201.22(c); see Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184
(1980) (finding that to establish good cause for the untimely filing of an appeal, a
party must show that she exercised due diligence or ordinary prudence under the
particular circumstances of the case).
¶6 In this case, it is undisputed that the agency notified the appellant of its
decision to remove her on July 16, 2013, and effectuated that removal on July 19,
2013. IAF, Tab 7 at 13, Tab 8 at 7. It is also undisputed that the agency’s
decision letter informed the appellant of her Board appeal rights, including the
applicable timeliness requirements. IAF, Tab 7 at 17. Specifically, the removal
letter explained that a Board appeal “must be filed no later than thirty calendar
days from the effective date of this action or thirty days after the date of receipt
of this decision, whichever is later.” Id. (emphasis added). Therefore, the 30-day
period during which the appellant could file a timely appeal started on July 19,
2013, the day her removal was effectuated. See, e.g., Montgomery v. U.S. Postal
Service, 77 M.S.P.R. 401, 403-04 (1998) (discussing that an appeal of a removal
action must be filed with the Board no later than 30 days after the effective date
of that removal action or 30 days after receiving notice of the agency’s decision
to remove, whichever is later); 5 C.F.R. § 1201.22(b)(1). The appellant’s
challenge of her removal through the agency’s DRB process did not extend that
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30-day period. See generally Anderson v. U.S. Postal Service, 109 M.S.P.R. 558,
¶ 7 (2008) (explaining that the pursuit of a grievance does not extend the time for
filing a Board appeal challenging a removal from service). The appellant has
presented no law, rule, regulation, or Board precedent in support of her argument
to the contrary.
¶7 Because we find no merit to the appellant’s assertion that she was timely in
appealing her July 19, 2013 removal on April 29, 2015, and she has presented no
argument or evidence to establish good cause for her untimeliness, we affirm the
administrative judge’s decision to dismiss the appeal.
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.
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
United States 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.