Laura Wilson v. Social Security Administration ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURA WILSON, DOCKET NUMBER
Appellant, CB-7121-22-0006-V-1
v.
SOCIAL SECURITY DATE: May 4, 2023
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laura Wilson, Sun City, Arizona, pro se.
Sundeep R. Patel, San Francisco, California, 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 request for review of an arbitrator’s decision that
denied her grievance of her removal. For the reasons set forth below, the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s request for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.155(b).
BACKGROUND
¶2 The appellant was formerly employed as a Claims Specialist with the
agency. Request for Review (RFR) File, Tab 1 at 1. On January 10, 2022, she
filed an appeal challenging an arbitration decision with the Board’s Denver Field
Office, and it was forwarded to the Office of the Clerk of the Board for docketing
as a request for review of an arbitrator’s decision. RFR File, Tab 2 at 1. The
appellant’s request included a copy of the Board’s standard appeal form, a
removal proposal letter, a copy of a December 7, 2021 order from a Magistrate
Judge for the U.S. District Court for the District of Arizona , and other documents
seemingly related to her grievance. RFR File, Tab 1. In her initial request for
review, the appellant asserted that the agency “mislead [her] in the next steps
after Arbitration as [she] was notified on 12/7/2021 by the Judge in the U.S.
District Court of Appeals in Arizona that [she] needed to file MSPB on the
Arbitrator[’]s decision.” Id. at 5. Further, the December 7, 2021 Magistrate
Judge’s order identified that the arbitrator issued a decision denying the
appellant’s grievance on June 4, 2020. Id. at 108. However, the appellant’s
submission did not include a copy of the arbitrator’s decision.
¶3 The Office of the Clerk of the Board issued an acknowledgment order that
set forth the jurisdictional and timeliness requirements that the appellant must
meet to obtain review of the arbitration decision. RFR File, Tab 2 at 2-3. It
ordered the appellant to file evidence and argument to prove that the Board has
jurisdiction over the request for review and that the request for review was timely
and/or there existed good cause for any delay in filing her request for review. Id.
at 2-4. The appellant did not respond to the acknowledgment order, and the
agency did not submit a response to the appellant’s request for review.
3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s request for review is untimely filed without good cause shown for
the delay.
¶4 The Board has jurisdiction over a request for review of an arbitration
decision when the following conditions are met: (1) the subject matter of the
grievance is one over which the Board has jurisdiction; (2) the appellant either
(i) raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with the
arbitrator in connection with the underlying action, or (ii) raises a claim of
discrimination in connection with the underlying action under 5 U.S.C.
§ 2302(b)(1) for the first time with the Board if such allegations could not be
raised in the negotiated grievance procedure; and (3) a final decision has been
issued. Scanlin v. Social Security Administration, 2022 MSPB 10, ¶ 4; 5 C.F.R.
§ 1201.155(a)(1), (c); see 5 U.S.C. § 7121(d). Further, a request for review of an
arbitrator’s decision is timely if filed 35 days from the issuance of the arbitration
decision or, if the appellant shows that she received the decision more than 5 days
after it was issued, within 30 days after the date she received the decision.
Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶ 4 (2013);
5 C.F.R. § 1201.155(b).
¶5 The appellant failed to respond to the acknowledgment order regarding
timeliness and failed to include a copy of the final arbitration decision with her
request for review. However, as indicated above, the Magistrate Judge’s order
identified June 4, 2020, as the date the arbitrator issued a decision denying the
appellant’s grievance. Further, there is additional evidence pertaining to the
timeliness of her request for review. Prior to forwarding the appellant’s request
for review to the Board, an administrative judge in the Denver Field Office
initially docketed the appeal as an appeal of the agency’s removal decision , and
the parties submitted pleadings to the record in that appeal. Wilson v. Social
Security Administration, MSPB Docket No. DE-0752-22-0084-I-1, Initial Appeal
File (0084 IAF), Tabs 1, 10. One such pleading included a copy of the agency
4
removal decision letter and the June 4, 2020 final arbitration decision denying the
appellant’s grievance. 0084 IAF, Tab 7 at 6-56.
¶6 As set forth in the January 30, 2019 removal decision, the agency removed
the appellant based on a charge of misuse of official time with one specification,
a charge of failure to follow instructions with two specifications, and a charge of
lack of candor with three specifications. 0084 IAF, Tab 7 at 6-12. The removal
decision informed the appellant of her options for contesting the agency action.
Id. at 8-12. The appellant’s union grieved the removal action, and agency
management denied the grievance. RFR File, Tab 1 at 114-29. The union
subsequently invoked arbitration on the appellant’s behal f, and following a
hearing, the arbitrator issued a decision on June 4, 2020, denying the appellant’s
grievance. 0084 IAF, Tab 7 at 13-56. Because the appellant does not claim that
she received the arbitration decision more than 5 days after the June 4, 2020
decision was issued, she should have filed a request for review with the Board by
July 9, 2020; thus, her request was untimely by approximately 1 year and
6 months.
¶7 The appellant has the burden of proving by preponderant evidence that the
request was timely filed with the Board. 5 C.F.R. § 1201.56(b)(2)(i)(B). The
Board will dismiss an untimely request unless the appellant establishes good
cause for the delayed filing. Kirkland, 119 M.S.P.R. 74, ¶ 5. To establish good
cause, the appellant must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id.; see 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 the excuse and the showing of due diligence, whether
the appellant is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to timely
file the request for review. Kirkland, 119 M.S.P.R. 74, ¶ 5; see Moorman v.
5
Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
¶8 As previously noted, the acknowledgment order informed the appellant that
a request for review of an arbitration decision is timely if it was filed 35 days
from the issuance of the decision or, if the decision was received more than
5 days after it was issued, within 30 days after the date of receipt. RFR File,
Tab 2 at 3. It ordered her to provide evidence and argument on the issue of
timeliness and warned her that noncompliance could result in dismissal of her
request for review, and the appellant failed to respon d to the order and to include
a copy of the final arbitration decision with her request for review. Id. at 1, 3.
Consequently, the appellant has failed to show good cause for her filing delay.
See Beckley v. U.S. Postal Service, 43 M.S.P.R. 397, 399 (1990) (noting that in
the interest of judicial efficiency and fairness, regardless of how minimal the
delay, the Board will not waive its timeliness requirements in the absence of good
cause shown).
¶9 Nevertheless, an agency’s failure to notify an employee of her Board appeal
rights when such notification is required generally constitutes good cause for late
filing. Kirkland, 119 M.S.P.R. 74, ¶ 6. The Board has also made clear that the
agency’s notice must be explicit and must, among other things, inform the
employee “[w]hether there is any right to request Board review of a final decision
on a grievance in accordance with” the provisions governing requests for Board
review of arbitrators’ decisions. McCurn v. Department of Defense, 119 M.S.P.R.
226, ¶ 11 (2013); Kirkland, 119 M.S.P.R. 74, ¶ 8. 3 Thus, when an agency
provides inadequate notice of Board appeal rights, the appellant is not required to
show that she exercised due diligence in attempting to discover her appeal rights
3
As noted in McCurn, the Board revised its regulations after Kirkland was issued, but
the revision did not change an agency’s obligation to explicitly inform an appellant of
her right to request Board review of an arbitration decision within 35 days of issuance.
McCurn, 119 M.S.P.R. 226, ¶ 11 n.5.
6
but rather must show diligence in filing the appeal after learning that she could.
McCurn, 119 M.S.P.R. 226, ¶¶ 12-13; Kirkland, 119 M.S.P.R. 74, ¶ 6.
¶10 Unlike in McCurn and Kirkland, the agency explicitly advised the appellant
in its removal decision of her right to request review of the final arbitration
decision on her grievance to the Board. Specifically, the removal decision
provides a roadmap for pursuing a grievance raising a claim of illegal
discrimination from the pre-arbitration stage through a request for Board review.
0084 IAF, Tab 7 at 8-9. Thus, the appellant cannot establish that good cause
exists for her untimeliness based on the agency’s failure to notify her of her right
to request review of the arbitration decision with the Board. 4
¶11 Finally, to whatever extent the appellant appears to allege that her union
representative’s failure to notify her of her right to request review of the
arbitration decision with the Board is the cause of her untimeliness, it is well
settled that an appellant is responsible for the errors of her chosen representative .
See, e.g., Miller v. Department of Homeland Security, 110 M.S.P.R. 258, ¶ 11
(2008); Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981); cf.
McCurn, 119 M.S.P.R. 226, ¶ 13 (acknowledging the well-settled principle that
an appellant is responsible for the errors of his representative and clarifying that
the critical issue in that case was not the appellant’s attorney’s failure to inform
the appellant of his Board appeal rights but the agency’s failure to give the
appellant proper notice of his right to request review of the arbitration decision
before the Board). Aside from her bare assertion that she was misled regarding
the next steps after the arbitration decision, the appellant has not provided any
additional evidence or argument suggesting that her untimeliness was the product
of deception, negligence, or malfeasance by her representa tive. See Hamilton v.
4
In McCurn, 119 M.S.P.R. 226, ¶ 11 n.6, the Board made clear that its regulations do
not impose on arbitrators an obligation to notify appellants of their right to further
appeal in matters subject to Board review. Consequently, the arbitrator’s failure to
provide such notice here also does not establish good cause for the appellant’s untimely
filing. 0084 IAF, Tab 7 at 13-56.
7
Department of Homeland Security, 117 M.S.P.R. 384, ¶ 13 (2012) (finding that
the appellant’s claim of receiving misguided advice from his attorney was
unpersuasive because he is responsible for the errors of his chosen
representative); cf. Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526,
¶ 13 (explaining that, although an appellant generally is responsible for the errors
of his chosen representative, an exception may lie when the appellant establishes
that her diligent efforts to prosecute an appeal were thwarted without her
knowledge by her attorney’s deceptions, negligence, or malfeasance), aff’d,
404 F. App’x 466 (Fed. Cir. 2010).
¶12 Accordingly, we dismiss the appellant’s request for review as untimely
filed. This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the appellant’s request for review of the arbitration decision.
NOTICE OF APPEAL RIGHTS 5
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.
5
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 indicat ed in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
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).
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 partic ular
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
9
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 receives 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
discrimination based on race, color, religion, sex, national origin, 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:
10
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
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 2302(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 a ny court of appeals of
competent jurisdiction. 6 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).
6
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 judicial 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.
11
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
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.