Henry L. Webster v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRY L. WEBSTER, DOCKET NUMBER
Appellant, CH-0731-13-1565-I-1
v.
DEPARTMENT OF VETERANS DATE: September 30, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Henry L. Webster, Chicago, Illinois, pro se.
Kevin J. Gaffney, Hines, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. For the reasons set forth below, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 In an initial decision dated December 12, 2013, the administrative judge
dismissed the appellant’s appeal for failure to prosecute after the appellant failed
to appear for status conferences on October 30, 2013, and November 8, 2013, and
failed to respond to her show-cause order. Initial Appeal File (IAF), Tabs 8-10,
Tab 12, Initial Decision (ID) at 1-3. The initial decision became the final
decision of the Board on January 16, 2014, when neither party filed a petition for
review. ID at 3.
¶3 On May 3, 2014, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. With his petition for review, the appellant filed a
Motion to Accept Late Filed Petition for Review, with supporting documents, in
which he stated under penalty of perjury that he moved in June 2013 and
submitted a change of address form to the U.S. Postal Service, but the post office
did not forward his mail until March 28, 2014, and, therefore, he did not receive
the administrative judge’s notices of status conference or her show cause order.
PFR File, Tab 1 at 8. The agency responds in opposition to the petition for
review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or, if the decision was received more than 5 days
after the date of issuance, within 30 days after receipt. Vandagriff v. Department
of the Army, 106 M.S.P.R. 446, ¶ 4 (2007); 5 C.F.R. § 1201.114(e). Here,
although the appellant alleges that he did not receive certain documents from the
administrative judge until on or shortly after March 28, 2014, he does not allege
or submit any documents to show that he received the initial decision more than
5 days after December 12, 2013. PFR File, Tab 1 at 4, 8, 16-27. Therefore, his
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petition for review was due on January 16, 2014, and was more than 3 months
untimely filed.
¶5 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(g). To establish good
cause for the untimely filing of an appeal, a party 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). 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.
Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d sub
nom. Moorman v. Merit Systems Protection Board, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
¶6 Reading the appellant’s pleadings liberally, he asserts that the post office’s
failure to timely forward his mail to the correct address, caused the delay in filing
his petition for review. PFR File, Tab 1 at 4. He contends that he moved in June
2013, id., which was 2 months before he filed his appeal. Thus, he should have
stated his new mailing address on his appeal form. Instead, he indicated that his
mailing address was his old address. IAF, Tab 1 at 1. He used the same former
address on two subsequent pleadings before the administrative judge as well, id.,Tab 5 at 1, Tab 6 at 1, when he should have informed the administrative judge
that he moved to a new address in June. The administrative judge directed all
orders, notices, and other documents, and the initial decision, to the appellant’s
address of record, i.e., to the old address he provided to the Board. See IAF, Tab
2 at 17, Tab 7 at 2, Tab 8 at 2, Tab 9 at 3, Tab 10 at 2, Tab 12 at 8.
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¶7 The Board’s regulations require that all appeals include the appellant’s
“address,” which obviously means the appellant’s correct address. 5 C.F.R.
§ 1201.24(a)(1). The Board’s regulations further provide that an appellant is
responsible for notifying the Board of any change of address. 5 C.F.R.
§ 1201.26(b)(2). The appellant’s failure to keep the Board informed of his
correct address delayed his receipt of documents essential to his appeal and
indicates a lack of due diligence and ordinary prudence on his part. See Jacks v.
Department of the Air Force, 114 M.S.P.R. 355, ¶ 8 (2010) (the appellant’s
failure to notify the Board of a change in address caused a delay in his receipt of
the initial decision and did not reflect due diligence).
¶8 Assuming arguendo that the appellant received the initial decision when he
received the other documents from the administrative judge, that is, on or shortly
after March 28, 2014, he has not explained why he waited until June 9, 2014,
before filing a petition for review. See Jacks, 114 M.S.P.R. 355, ¶ 9 (the
appellant failed to show good cause where he offered no explanation for his delay
in filing his petition for review once he received the initial decision). A delay of
this length is not minimal. Cf. Terrell v. U.S. Postal Service, 114 M.S.P.R. 38,
¶ 9 (2010) (a 42-day delay in filing a petition for review was significant).
¶9 We find that, by failing to keep the Board informed of his correct address
and therefore making it impossible for him to receive documents in a timely
manner, the appellant failed to show due diligence or ordinary prudence under the
circumstances of the case. See Terrell, 114 M.S.P.R. 38, ¶¶ 9-10; Alonzo,
4 M.S.P.R. at 184. Further, the appellant has failed to present 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 that similarly shows
a causal relationship to his inability to file his petition for review in a timely
manner. See Moorman, 68 M.S.P.R. at 63,
¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
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of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the underlying appeal for failure to prosecute.
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.
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
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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.