Raymond Kostromin v. Department of Veterans Affairs ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYMOND KOSTROMIN, DOCKET NUMBER
Appellant, AT-0752-14-0244-I-1
v.
DEPARTMENT OF VETERANS DATE: November 5, 2014
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John M. Brown and Charles E. Day, Augusta, Georgia, for the appellant.
Neil S. Deol, Esquire, Decatur, Georgia, 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 termination appeal for lack of jurisdiction. For the reasons set forth
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 Effective October 5, 2000, the agency appointed the appellant to an
excepted service position as a physician, under special appointment
authority 38 U.S.C. § 7401(1). Initial Appeal File (IAF), Tab 7 at 6. The agency
terminated the appellant’s employment, effective October 28, 2013, based on two
charges: (1) receiving services that he was not eligible to receive; and
(2) unprofessional conduct. IAF, Tab 1 at 10.
¶3 The appellant filed an initial appeal, arguing that the agency committed
procedural errors, failed to fairly consider the Douglas factors, 2 and may have
terminated the appellant in retaliation for whistleblowing. IAF, Tab 1 at 6. The
agency filed a motion to dismiss, arguing that the Board lacks jurisdiction over
Veterans Health Administration (VHA) professionals appointed under 38 U.S.C.
§ 7401(1) because they are not employees as defined by 5 U.S.C. § 7511(b)(10)
and, thus, are not afforded 5 U.S.C. chapter 75 appeal rights. IAF, Tab 7. In
response, on January 14, 2014, the administrative judge ordered the appellant to
file argument and evidence showing that the Board had jurisdiction to review his
termination and his whistleblower reprisal claim. IAF, Tab 10. On January 15,
2014, the appellant filed three identical copies of his response to the January 14,
2014 show cause order; however, his submission did not address the issues raised
by the administrative judge’s order. IAF, Tab 11.
¶4 On January 27, 2014, the administrative judge dismissed the appellant’s
appeal for lack of jurisdiction, without holding the requested hearing.
IAF, Tab 12, Initial Decision (ID). She determined that the appellant lacks
adverse action appeal rights under 5 U.S.C. chapter 75 because he held a position
2
See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
3
within the VHA that has been excluded from the competitive service by or under
a provision of Title 38. ID at 3; see 5 U.S.C. § 7511(b)(10). In addition, she
denied the appellant’s whistleblower reprisal claim because he failed to show
exhaustion of his administrative remedies before the Office of Special Counsel.
¶5 On March 29, 2014, the appellant filed an untimely petition for review.
Petition for Review (PFR) File, Tab 1. In response to a notice from the Clerk of
the Board, PFR File, Tab 4, the appellant has filed a motion to accept his petition
for review as timely filed or to waive the time limit, PFR File, Tab 5. The agency
has responded in opposition. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Regarding the timeliness issue, the appellant does not dispute that he had
until March 3, 2014, to file his petition for review. See PFR File, Tab 5 at 4.
Rather, the appellant argues that: (1) his petition for review was not untimely
because he filed it on January 15, 2014, well before the deadline; and (2) any
untimeliness should be excused because he “only recently came to realize” that
the agency failed to advise him that he lacked the right to appeal his termination
to the Board. Id.¶7 We do not accept the appellant’s petition for review as timely. To be
timely, a petition for review must be filed within 35 days of the date of the initial
decision’s issuance or within 30 days after receipt, if the initial decision was
received more than 5 days after the date of issuance. 5 C.F.R. § 1201.114(e).
The appellant’s January 15, 2014 pleading cannot serve as his petition for review
of the initial decision, which was issued on January 27, 2014. 3 A petition for
3
The appellant argues that “I do not feel that I should be held accountable for a key
document [the January 15, 2014 pleading] being withheld from my official file by your
own clerical staff.” PFR File, Tab 5 at 4. This document was not “withheld.” On
January 15, 2014, the Atlanta Regional Office received the three copies of the
appellant’s correspondence dated and faxed the same day. IAF, Tab 11. The
4
review is a pleading in which a party contends that an initial decision was
incorrectly decided in whole or in part. 5 C.F.R. § 1201.114(a)(1). However, the
appellant’s January 15, 2014 correspondence was filed in response to the
administrative judge’s January 14, 2014 show cause order, not to the initial
decision, which was not issued for another 12 days. See IAF, Tabs 10-12. Thus,
the Clerk of the Board has properly treated the appellant’s March 29, 2014
pleading as his petition for review. See PFR File, Tab 4. Therefore, because the
appellant did not file his petition for review until March 29, 2014,
PFR File, Tab 1, we find that his petition for review is untimely by 26 days.
¶8 As explained by the Clerk of the Board, PFR File, Tab 4 at 2, the Board will
waive its filing deadline only upon a showing of good cause, regardless of how
minimal the delay, 5 C.F.R. § 1201.114(g); see, e.g., Lands v. Department of the
Air Force, 95 M.S.P.R. 593, ¶¶ 5-7 (2004) (filing even 1-day late requires a
showing of good cause). To establish good cause for an untimely filing, 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, 79 F.3d 1167 (Fed. Cir. 1996)
(Table).
submission was added to the appellant’s file, and the administrative judge considered it
in determining the outcome of the initial appeal. ID at 3.
5
¶9 The appellant’s allegedly “compelling reason” for the 26-day delay in filing
his petition for review, PFR File, Tab 5 at 4, is insufficient to excuse its
untimeliness. The appellant has filed a motion requesting a waiver of the filing
deadline on the basis that it was unfair or unethical for the agency not to
encourage him to abandon his decision to appeal his termination. PFR File, Tab 5
at 4, 10. However, the appellant’s argument is premised entirely on two facts
known to him even before he filed his initial appeal, namely that: (1) he sent two
emails to the Chief of Human Resources to notify the agency of his intention to
appeal his termination to the Board, and (2) the agency did not take any steps to
dissuade him from taking that course of action. Id. Thus, the appellant has failed
to present any new evidence to justify his 26-day delay in filing his petition for
review. See, e.g., Harris v. Department of Agriculture, 54 M.S.P.R. 211, 214
(1992) (finding that the appellant’s allegation of “recently discovered facts” were
not good cause for waiving the time limit for filing a petition for review where
the appellant failed to show why his allegations could not have been raised prior
to the expiration of the time limit for filing a petition for review).
¶10 Furthermore, the appellant’s belated recognition of a potential argument is
not a basis for review. See Jones v. Department of
Transportation, 69 M.S.P.R. 21, 27 (1995) (explaining that the discovery of, or
the decision to pursue, a new legal argument after the period for filing a petition
for review has expired does not constitute good cause for the delay in filing the
petition for review), aff’d, 111 F.3d 144 (Fed. Cir. 1997) (Table). The appellant
claims that he felt “betrayed” by the agency for not notifying him that employees
hired pursuant to 38 U.S.C. § 7401(1) lack adverse action appeal rights before the
Board. PFR File, Tab 5 at 10. The appellant also alleges that this betrayal is only
recently known to him, but provides no date as to when this realization occurred.
Id. However, the administrative judge’s January 14, 2014 show cause order
notified the appellant, prior to the close of the record, that employees hired
6
pursuant to 38 U.S.C. § 7401(1) lack adverse action appeal rights before the
Board. IAF, Tab 10. Also, the appellant’s January 15, 2014 response to the show
cause order indicates that he had the information underlying his “betrayal” claim
on or before January 15, 2014, IAF, Tab 11, 4 over 2 months before raising the
argument as a basis for excusing his untimely filing of his petition for review,
PFR File, Tab 1 at 2, Tab 5 at 5. Therefore, the appellant’s representation that he
“only recently came to realize” the effect of the agency’s decision not to advise
him to abandon his Board appeal does not show that he exercised due diligence or
ordinary prudence.
¶11 Finally, the appellant has failed to offer any other grounds for excusing the
untimely filing of his petition for review. The appellant’s discussion of the
timeliness of his initial appeal is immaterial to whether his petition for review is
timely. In addition, the appellant is an e-filer and makes no claim that he failed
to receive the initial decision, which indicated that the “initial decision will
become final on March 3, 2014, unless a petition for review is filed by that date.”
ID at 4 (emphasis in original). Although the appellant states that he is unfamiliar
with the Board’s appeals process, the appellant is not pro se, IAF, Tab 5; PFR
File, Tab 6, 5 and he has offered no argument or evidence showing that the delay
was caused by circumstances outside of his control. Therefore, the appellant has
failed to show good cause for the 26-day delay in filing his petition for review.
4
In the appellant’s January 15, 2014 pleading, he stated, “It’s a shame a physician isn’t
afforded the same protection rights as any other employee.” IAF, Tab 11.
5
The appellant pursued a Board appeal upon advice of his union representative. The
appellant states that “my union reps thought that after everything that the VA had put
me thr[ough,] [the Board appeal process] was my best option.” PFR File, Tab 1 at 2.
Even if the delay is somehow attributed to the improper advice of his representative,
this does not establish good cause. Sofio v. Internal Revenue Service,
7 M.S.P.R 667, 670 (1981) (explaining that an appellant is responsible for the errors of
his chosen representative).
7
¶12 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appeal for lack of jurisdiction.
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.
8
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.