Daniel E. Shipp v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL E. SHIPP, DOCKET NUMBER
Appellant, DA-0845-15-0287-I-1
v.
OFFICE OF PERSONNEL DATE: June 24, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Daniel E. Shipp, Bossier City, Louisiana, pro se.
Kristopher Lee Rogers, 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 his appeal as settled. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On March 23, 2015, the appellant filed an appeal of the agency’s
reconsideration decision that affirmed the existence of an overpayment of benefits
under the Federal Employees’ Retirement System and denied his request for a
waiver of the overpayment collection. Initial Appeal File (IAF), Tab 1. During
the proceedings below, the parties entered into a settlement agreement resolving
the appeal. IAF, Tab 10. On June 11, 2015, the administrative judge dismissed
the appeal as settled and entered the agreement into the record for enforcement
purposes. IAF, Tab 11, Initial Decision. The administrative judge informed the
appellant that the initial decision would become final on July 16, 2015, if neither
party filed a petition for review by that date. Id.¶3 On or about February 23, 2016, the appellant filed the instant petition for
review. Petition for Review (PFR) File, Tab 1. In a March 6, 2016
acknowledgment letter, the Clerk of the Board advised the appellant that his
petition for review was untimely filed and that a petition for review that appears
to be untimely must be accompanied by a motion to accept the filing as timely
and/or waive the time limit for good cause. PFR File, Tab 2. The Clerk enclosed
a “Motion to Accept Filing as Timely or to Waive Time Limit,” and instructed the
appellant to return the motion, along with an affidavit or signed statement under
penalty of perjury, by March 24, 2016. Id. The appellant failed to submit
any response.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review must be filed within 35 days after the date of issuance
of an initial decision, or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision. 5 C.F.R. § 1201.11(e). The appellant
has not alleged that he received the initial decision more than 5 days after its
issuance. Thus, the appellant’s petition for review was untimely filed by more
than 7 months.
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¶5 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 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). These same standards apply in
situations when an appellant has failed to file a timely petition for review. See,
e.g., Navas v. Office of Personnel Management, 100 M.S.P.R. 428, ¶ 5 (2005).
¶6 While we are mindful of the appellant’s pro se status, a filing delay of more
than 7 months is nonetheless significant. See, e.g., Robey v. U.S. Postal Service,
105 M.S.P.R. 539, ¶ 16, aff’d, 253 F. App’x 933 (Fed. Cir. 2007). Furthermore,
despite the instructions set forth in the acknowledgment letter, the appellant
has not submitted any motion attempting to establish good cause for the delay.
Silence does not constitute a showing of good cause. Navas, 100 M.S.P.R. 428,
¶ 6. Because the appellant was informed of the time limit for filing a petition for
review and failed to show any circumstances that reasonably prevented him from
timely filing his petition, we find that he has failed to demonstrate diligence or
ordinary prudence that would excuse his late filing. See id.¶7 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 settlement and dismissal of the appellant’s initial appeal.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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. 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
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.