Beau B. Durio v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BEAU B. DURIO, DOCKET NUMBER
Appellant, CH-3443-15-0224-I-1
v.
DEPARTMENT OF VETERANS DATE: September 21, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Beau B. Durio, O’Fallon, Illinois, pro se.
Jeff Keys, St. Louis, Missouri, 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 for lack of jurisdiction. 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).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant, a GS-06 Police Officer, filed an appeal challenging his
nonselection for a promotion to a GS-08 lieutenant position. Initial Appeal File
(IAF), Tab 1. He indicated on the appeal form that he is entitled to veterans’
preference. Id. The administrative judge advised the appellant that the Board
generally does not have jurisdiction over nonselections but that he may have
raised a claim within the Board’s jurisdiction under the Veterans Employment
Opportunities Act (VEOA). IAF, Tab 4. The administrative judge set out the
jurisdictional requirements for a VEOA appeal and directed the appellant to
provide evidence and argument on the issue. Id. The appellant did not respond.
¶3 On March 5, 2015, the administrative judge issued an initial decision
dismissing the appeal for lack of jurisdiction based on the written record. IAF,
Tab 5, Initial Decision. In finding that the appellant had not established
jurisdiction under VEOA, the administrative judge noted that the appellant
had not alleged or shown that he exhausted his remedy with the Department of
Labor (DOL). ID at 6. The administrative judge advised the appellant that the
initial decision would become final on April 9, 2015, unless a petition for review
was filed by that date. ID at 7. The appellant filed a petition for review on
April 24, 2015. Petition for Review (PFR) File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(d). Here, the appellant has not alleged or established that he received
the initial decision more than 5 days after the date of issuance. PFR File, Tab 1.
Thus, the appellant’s petition for review, which was filed 50 days after the
issuance of the March 5, 2015 initial decision, was untimely filed by 15 days.
3
¶5 The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201.114(f). 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 sub nom. Moorman v. Merit
Systems Protection Board, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6 The appellant’s 15-day delay in filing is not minimal. See Crozier
v. Department of Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (a 13-day delay in
filing is not minimal). In the online interview accompanying his petition for
review, the appellant explains that he was unable to timely file his petition
because he was working 12-hour shifts as a supervisor and changing residences
on account of a custody battle. PFR File, Tab 1. However, the appellant’s
personal difficulties are insufficient to establish good cause for the delay in
filing. See Stewart v. Department of the Navy, 93 M.S.P.R. 147, ¶¶ 4-5 (2002)
(finding that appellant did not establish good cause for untimely filing based on
allegation that she had left her belongings in storage while searching for a new
job and residence); Smith v. Department of Agriculture, 61 M.S.P.R. 309, 312
(1994) (finding that the fact that appellant may have been working long hours
did not establish good cause for 1-day filing delay). The appellant further states
that it was unclear to him how to file, but, while we are mindful of his pro se
status, the instructions provided in the initial decision were clear and
unambiguous. See Smith v. U.S. Postal Service, 106 M.S.P.R. 405, ¶ 8 (2007),
4
aff’d sub nom. Smith v. Merit Systems Protection Board, 277 F. App’x 1017 (Fed.
Cir. 2008). The appellant also states that he submitted an inquiry through the
DOL website as soon he received the jurisdictional order requesting proof of
DOL exhaustion, but has not yet received any response. However, the fact that
the appellant may have been awaiting evidence of jurisdiction from another
agency does not constitute good cause for the untimely filing of his petition. See
Zamot v. Merit Systems Protection Board, 332 F.3d 1374, 1377 (Fed. Cir. 2003)
(“The difficulty in obtaining evidence from the Navy [relating to the appellant’s
preference-eligible status] may have been a circumstance out of [his] control, but
the failure to file a document to serve as a petition for review was not.”). Finally,
the appellant’s suggestion that his appeal be consolidated with a pending appeal
filed by a coworker does not serve to excuse his own late filing. 2 Cf.
Carpenter v. Department of Health & Human Services, 40 M.S.P.R. 55, 56 (1989)
(holding that the appellant’s decision to await developments in another Board
action did not constitute good cause for untimely filing of petition for review).
¶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 concerning our lack of jurisdiction over the appeal.
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:
2
The Board may consolidate appeals filed by different parties if doing so would
expedite processing of the cases and would not adversely affect the interests of the
parties. 5 C.F.R. § 1201.36. Because we dismiss the appellant’s petition for review as
untimely filed, we find that these criteria are not met.
5
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 appeal to
the 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
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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.