Bashar J. Alhajjar v. Department of Homeland Security ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BASHAR J. ALHAJJAR, DOCKET NUMBER
Appellant, SF-0752-14-0025-C-1
v.
DEPARTMENT OF HOMELAND DATE: April 5, 2016
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Bashar J. Alhajjar, El Cajon, California, pro se.
Janet W. Muller, Chula Vista, California, 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 compliance initial
decision, which denied his petition for enforcement. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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BACKGROUND
¶2 The appellant appealed his removal from the GS-13 position of Program
Manager, and the administrative judge issued an initial decision reversing the
agency’s action, finding that the agency had not afforded the appellant due
process. Alhajjar v. Department of Homeland Security, Initial Appeal File (IAF),
Tab 32, Initial Decision (ID); Compliance File (CF), Tab 10; Compliance Initial
Decision (CID) at 2. In the initial decision, the administrative judge did not reach
the merits of the removal action. ID. The initial decision became the final
decision of the Board when neither party petitioned for review. CID at 2.
¶3 The appellant filed a petition for enforcement contending that the agency
did not make appropriate adjustments to his Thrift Savings Plan, improperly
deducted a lump sum from his back pay for restoration of his annual leave, and
did not allow him to enroll in health insurance. CF, Tab 1. Based on the record,
the administrative judge found that, although the agency was not in compliance
with the final decision when the appellant filed his petition for enforcement, he
had not rebutted the agency’s evidence of its eventual compliance. CID at 3. The
compliance initial decision, issued on September 2, 2015, stated that it would
become final on October 7, 2015, unless either party filed a petition for review by
that date. CID at 4.
¶4 On October 20, 2015, the appellant filed an apparently untimely petition for
review. Petition for Review (PFR) File, Tab 1. In his petition, he states that he
learned on October 19, 2015, that he was to undergo a periodic reinvestigation,
which would require him to complete the Office of Personnel Management’s
Questionnaire for Public Trust Positions. Id. He believes that this periodic
reinvestigation may be the start of another removal action by the agency. Id. The
Clerk of the Board acknowledged the appellant’s petition, and afforded him the
opportunity to file a Motion to Accept Filing as Timely or to Waive Time Limit.
PFR File, Tab 2. The agency filed a response to the petition for review and the
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appellant filed a motion requesting that the Board waive the time limit for good
cause. PFR File, Tabs 3-4.
ANALYSIS
¶5 To be timely, a petition for review must be filed within 35 days after the
initial decision was issued or, if the appellant shows that he received the initial
decision more than 5 days after it was issued, within 30 days after the date it was
received. 5 C.F.R. § 1201.114(d). Here, the appellant does not allege that he
received the compliance initial decision more than 5 days after its issuance date,
and he did not file his petition for review until October 20, 2015. PFR File,
Tab 1. Thus, the petition for review was filed 13 days late.
¶6 The Board will waive its time limit only upon a showing of good cause for
the delay in filing. 5 C.F.R. § 1201.114(f). To establish good cause for the
untimely filing of a petition for review, the appellant must show that he exercised
due diligence or ordinary prudence under the particular circumstances of the case.
See Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To
determine whether an appellant has shown good cause, 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 for
review. 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).
¶7 At issue here is the reasonableness of the appellant’s excuse for his delayed
filing. As noted, his explanation for the delay is the agency’s initiating a periodic
background investigation. In his petition and his motion to waive the time limit,
he admits being aware that the compliance initial decision became final on
October 7, 2015. PFR File, Tab 1 at 3, Tab 4. However, he did not file the
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petition until learning that the agency was initiating a background investigation.
The agency’s investigation, though, is unrelated to the issues in the appellant’s
petition for enforcement, and his learning of the investigation does not constitute
a reasonable excuse for his 13‑day delay in filing. To the extent that the
appellant alleges that learning of a periodic reinvestigation is new evidence that
excuses his untimeliness, we also decline to excuse his untimeliness on this basis.
Such evidence does not warrant a different outcome in his petition for
enforcement. See Young v. Department of the Interior, 76 M.S.P.R. 501, 503
(1997) (determining that the discovery of new evidence, without more, does not
excuse the untimely filing of a petition for review; rather, the evidence must be of
sufficient weight to warrant a different outcome). Thus, we dismiss the petition
for review as untimely filed with no showing of good cause for the delay.
See 5 C.F.R. § 1201.114(f).
¶8 This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition for review. The compliance initial decision remains
the final decision of the Board regarding the issues raised in the appellant’s
petition for enforcement.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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
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If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.