Bobby Bierley v. Department of Energy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BOBBY E. BIERLEY, SR., DOCKET NUMBER
Appellant, SF-0752-16-0773-I-1
v.
DEPARTMENT OF ENERGY, DATE: March 24, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bobby E. Bierley, Sr., Mead, Washington, pro se.
Sarah T. Hawkins, Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a removal action as untimely filed without good cause
shown. Generally, we grant petitions such as this one only in the following
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
circumstances: 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 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 In a memorandum dated April 29, 2016, the agency informed the appellant
of its proposal to remove him from the position of Electrician with its Bonneville
Power Administration, no less than 30 days from the date of his receipt of that
proposal, based on the charges of drug use and failure to follow instructions .
Initial Appeal File (IAF), Tab 5, Subtab 4i at 1-2. The appellant, through
counsel, replied. IAF, Tab 4, Subtabs 4d-4g. In a memorandum dated August 11,
2016, the agency set forth its decision to remove him effective August 12, 2016,
and provided notice of his right to file a Board appeal within 30 calendar days
after the receipt of the removal decision. IAF, Tab 1 at 7-8.
¶3 On September 14, 2016, the appellant electronically filed an appeal with the
Board’s Western Regional Office. IAF, Tab 1 at 1, Tab 6 at 2. He set forth
August 15, 2016, as the date of his receipt of the agency’s decision. IAF, Tab 1
at 3. He also requested a hearing. Id. at 2. Upon the regional office’s
September 14, 2016 email request that the appellant provide copies of
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attachments that were not submitted online regarding his appeal, the appellant
provided a copy of the August 11, 2016 removal decision by facsimile on
September 16, 2016. Id. at 6-14.
¶4 The agency responded to the appeal, asserting that the appellant had
received the removal decision by email on August 12, 2016, and that the appeal
was untimely because it should have been filed no later than September 12, 2016.
IAF, Tab 4 at 10, Subtab 4b at 4. The agency provided a copy of an email dated
August 12, 2016, from the appellant acknowledging receipt of the decision and
forwarding it to his attorney of record. Id., Subtab 4b at 4.
¶5 In an order on timeliness, the administrative judge noted that the appellant’s
appeal appeared to have been filed 2 days late. IAF, Tab 6 at 2. He further
informed the appellant of his burden on timeliness and directed him to submit
evidence and/or argument demonstrating that he timely filed his appeal or that
there was good cause for the filing delay. Id. at 2-3. The appellant filed a
document, which did not explain why his appeal was filed late. IAF, Tab 7. He
provided instead a narrative regarding the removal, his work history, an Office of
Workers’ Compensation Programs (OWCP) claim, and the penalty determination.
Id. He submitted various medical records and statements bearing dates within the
range of either years or months prior to his removal. Id.¶6 Without holding the requested hearing, the administrative judge issued an
initial decision, finding that the appeal was untimely and that good cause for the
filing delay had not been shown. IAF, Tab 9, Initial Decision (ID) at 1, 5. The
administrative judge found that, notwithstanding the appellant’s allegation that he
received the decision on August 15, 2016, the record reflects that he was in
receipt of the decision notice on August 12, 2016, the date that he responded to
the agency regarding the email. ID at 4. She noted that the decision informed
him of the filing time limit but that the appellant provided no explanation for his
untimely filing. ID at 4-5. Thus, she found that he had not identified any
circumstances beyond his control that affected his ability to timely file his appeal ,
4
nor had he shown he exercised due diligence or ordinary prudence under the
particular circumstances of the case. ID at 5.
¶7 The appellant has filed a timely petition for review, and the agency has filed
an opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 Generally, an appellant must file an appeal with the Board no later than
30 calendar days after the effective date of the contested action or 30 calendar
days after the date of the appellant’s receipt of the agency’s decision, whichever
is later. 5 C.F.R. § 1201.22(b)(1). An appeal that is not filed within the
applicable time limit will be dismissed as untimely unless the appellant shows
good cause for the delay. 5 C.F.R. § 1201.22(c). To establish good cause, 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 considers 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 h is
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
timely file his appeal. 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). The appellant has the
burden of proof on the issue of timeliness, which he must establish by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶9 On review, the appellant appears to challenge the administrative judge’s
finding that the filing date for his appeal was September 12, 2016, based on his
receipt of the notice of decision on August 12, 2016. PFR File, Tab 1 at 1; ID
at 4. For the first time on review, the appellant asserts the following: “The Email
dated Aug. 11 2016, I didn’t receive until 4 to 5 weeks later due to 2 factors.”
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PFR File, Tab 1 at 1. Without specifically identifying the two factors, which
allegedly precluded his receipt of the decision notice, he states that he was
attacked and injured in his home by someone whom he thought was his friend.
Id. He alleges that he sustained a life-threatening injury. Id. He submits,
however, an incident report by the Spokane Police/Spokane County Sheriff, dated
August 11, 2016, regarding a simple assault and an emergency room report signed
on August 14, 2016. PFR File, Tab 1 at 4-5. Both documents predate the
October 24, 2016 close of record on timeliness. IAF, Tab 6 at 4. He asserts that
he lost access to both his home and his computer until October 25, 2016, when his
lawyer went to his home and got his laptop. PFR File, Tab 1 at 1. The Board
generally will not consider an argument raised for the first time on review absent
a showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). The appellant has not explained why he could not
have raised these arguments in response to the administrative judge’s timeliness
order, and we will not consider them for the first time on review. Furthermore,
the argument of a delayed receipt of the decision notice is undercut by the
appellant’s filing a copy of the August 11, 2016 decision notice with the regional
office on September 16, 2016, IAF, Tab 1 at 7, and his acknowledgment on his
appeal form of his receipt of the August 11, 2016 decision in August 2016, id.
at 3. The appellant has not refuted the email submitted by the agency showing
that he received an electronic copy of the decision letter and forwa rded it to his
counsel. IAF, Tab 4, Subtab 4b at 4.
¶10 The appellant also asserts that he did not receive the Standard Form 50
documenting his removal until November 2016 and submits narratives regarding
personal matters, a grievance, and an OWCP claim. PFR File, Tab 1 at 1-43. He
offers no explanation, argument, or evidence as to how any of these matters
relates to the issue of timeliness of his appeal. Id. Thus, he has provided no
basis for disturbing the initial decision.
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¶11 Based on the foregoing analysis, we affirm the initial decision dismissing
the appeal.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative rece ives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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discrimination based on race, color, religion, sex, national or igin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for ju dicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.