Christopher Sajnog v. Department of Homeland Security ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER L. SAJNOG, DOCKET NUMBER
Appellant, SF-0752-16-0788-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 20, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher L. Sajnog, San Diego, California, pro se.
Edith Moore McGee, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed by almost 4 months without good
cause shown. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 decision letter dated April 25, 2016, the agency informed the appellant
that, effective April 27, 2016, he was being removed from his position of Close
Quarters Combat Training Coordinator based on the charges of absence without
approved leave and failure to follow leave requesting procedures on 45 days
between January 11 and March 23, 2016, and failure to follow instruction to
either return to duty or provide medical documentation to support his absence .
Initial Appeal File (IAF), Tab 5 at 16-17, 21-28. The appellant indicated that he
received the agency’s decision letter on April 28, 2016. IAF, Tab 1 at 3. The
decision letter notified the appellant of his right to appeal the agency’s action to
the Board and that an appeal had to be filed no later than 30 days after the
effective date of the action or 30 days after the date of his receipt of the decision,
whichever was later. IAF, Tab 5 at 17-18.
¶3 The appellant filed a Board appeal of his removal on September 21, 2016,
and he did not request a hearing. IAF, Tab 1 at 1-6. With his initial appeal, he
submitted a copy of a whistleblower reprisal complaint that he had filed against
3
the agency with the Office of Special Counsel (OSC) on February 8, 2014 ,
concerning lost supervisory duties, change in work hours, disallowance of
physical fitness training during work hours, and being denied Government
vehicles to drive to training sites. Id. at 4, 21-29. The administrative judge
issued an acknowledgment order informing the appellant that the time period for
filing an appeal to the Board appeared to begin on April 27, 2016, and thus his
appeal, filed on September 21, 2016, appeared to be 117 days late. IAF, Tab 2
at 2. She further apprised him of his burden regarding timeliness and ordered him
to file evidence and argument on the timeliness issue. Id. at 2-5. The appellant
responded that he believed that OSC’s investigation into his retaliation complaint
was ongoing until he became aware, on or about September 20, 2016, that OSC
closed its investigation. IAF, Tab 3 at 3. He further claimed that the agency
requested OSC to close the investigation. Id. The agency also responded and
moved to dismiss the appeal as untimely filed. IAF, Tab 5 at 7-9.
¶4 In reply, the appellant asserted that, because he thought that the agency’s
removal action was covered by an ongoing OSC investigation, he believed that he
“should not communicate with the other party of an open investigation.” IAF,
Tab 6 at 8. Moreover, he claimed that the agency and OSC “worked in private to
illegally close the retaliation case in an attempt to ensure [he] could be removed
from [F]ederal employment without a form of redress.” Id. The appellant also
addressed the merits of his appeal by alleging that his physician recommended, on
December 31, 2015, that he not return to work due to “increased stress from a
hostile work environment/retaliation,” the agency violated Executive Order 5396
by denying his right as a disabled veteran to seek required medical treatment, he
disobeyed the agency’s order to return to duty because it was illegal, and his
removal was a continuation of the agency’s harassment and whistleblower
retaliation. Id. at 4-7, 9. The appellant submitted a copy of an OSC close-out
letter dated October 2, 2015, which was addressed to his address of record. IAF,
Tab 7 at 4-5. The close-out letter advised him that OSC had closed the file on his
4
complaint, OSC File No. MA-14-1438, based on a settlement agreement between
the agency and the appellant dated December 16, 2014. Id. at 5.
¶5 Based on the written record, the administrative judge issued an initial
decision that granted the agency’s motion and dismissed the appeal as untimely
filed without good cause shown. IAF, Tab 8, Initial Decision (ID) at 1, 5.
Specifically, she found that the appellant’s appeal was filed approximately
117 days late. ID at 3. She further found that the appellant failed to show good
cause for the delay by demonstrating that he exercised due diligence or ordinary
prudence concerning the filing of his appeal. ID at 4-5.
¶6 The appellant has filed a petition for review arguing, among other things,
that there was good cause for his untimely appeal. Petition for Review (PFR)
File, Tab 1 at 4-8. The agency has filed a response, PFR File, Tab 3, to which the
appellant has replied, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s removal appeal was untimely filed by almost 4 months.
¶7 The appellant bears the burden of proof regarding t imeliness, which must be
established by a preponderance of the evidence. Smith v. Office of Personnel
Management, 117 M.S.P.R. 527, ¶ 5 (2012); 5 C.F.R. § 1201.56(b)(2)(i)(B). The
appellant was required to file an adverse action appeal no later than 30 days after
the effective date of his removal, or 30 days after the date of his receipt of the
agency’s removal decision, whichever was later. 2 See Smith, 117 M.S.P.R. 527,
¶ 5; 5 C.F.R. § 1201.22(b)(1). Both of these events occurred in late April 2016,
and, on review, neither party contests the administrative judge’s finding that his
September 21, 2016 appeal was untimely filed by almost 4 months (about
2
A different time limit applies to individual right of action (IRA) appeals pursuant to
5 U.S.C. § 1221. 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.5. As we discuss infra ¶ 11,
the appellant has not submitted evidence that he sought corr ective action with OSC
regarding his removal, which is a prerequisite to filing an IRA appeal with the Board.
Therefore, we find that the time limits in 5 C.F.R. § 1209.5 do not apply to this appeal
concerning his removal.
5
117 days). PFR File, Tab 4 at 8; ID at 3, 5. The record contains conflicting
evidence regarding whether the time limit began to run on April 27, 28, or 29,
2016. 3 Considering, however, that the overall delay was undisputedly about
117 days, we find that this relatively minor difference of at most 2 days is
immaterial to our analysis, and it is unnecessary to resolve this minor discrepancy
because, in any event, his appeal was substantially untimely.
The appellant has not established good cause to waive the time limit for filing his
Board appeal.
¶8 The Board may waive the time limit for filing an appeal if the appellant has
shown good cause for the delay. Smith, 117 M.S.P.R. 527, ¶ 6; 5 C.F.R.
§ 1201.22(c). 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 which similarly shows a causal relat ionship 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).
¶9 For the following reasons, we agree with the administrative judge’s finding
that the appellant failed to show good cause for the delay in filing his appeal. ID
at 4-5. Although the appellant’s pro se status is a factor weighing in his favor, we
3
The agency’s decision letter states that the appellant’s removal was effective April 27,
2016. IAF, Tab 5 at 17. The appellant indicated that he received the agency’s decision
letter on or around April 28, 2016. IAF, Tab 1 at 3, Tab 6 at 8. The agency has argued
that the removal became effective on April 29, 2016. IAF, Tab 5 at 8; PFR File, Tab 3
at 6. The Standard Form 50 provided by the agency states that the removal was
effective April 24, 2016. IAF, Tab 5 at 50.
6
find that it is outweighed by the other Moorman factors. See Allen v. Office of
Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a
pro se appellant’s unexplained 14-day filing delay); see also Wallace v.
Department of Veterans Affairs, 81 M.S.P.R. 88, ¶ 5 (stating that the appellant’s
inexperience with legal matters and unfamiliarity with Board procedures d id not
warrant waiver of the filing deadline), aff’d, 217 F.3d 856 (Fed. Cir. 1999)
(Table). In particular, his delay in filing of almost 4 months is a significant
delay. See, e.g., Floyd v. Office of Personnel Management, 95 M.S.P.R. 260, ¶ 6
(2003) (finding a 1-month delay not minimal); Crozier v. Department of
Transportation, 93 M.S.P.R. 438, 441 (2003) (finding a 13-day delay not
minimal). Moreover, the appellant has not presented any evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from timely filing his appeal.
¶10 Importantly, we find that the appellant’s argument that he did not file his
appeal on time because he believed that the agency’s removal action was covered
by an ongoing OSC investigation is not a reasonable excuse. In his petition for
review, the appellant argues that the administrative judge erred in finding that
OSC’s close-out letter dated October 2, 2015, was mailed to his address of record
because there is no evidence that it was actually mailed . PFR File, Tab 1 at 5-6;
ID at 5. In addition, he submits a copy of an OSC email dated December 7, 2016,
which he alleges is new and material evidence purportedly showing that he did
not receive OSC’s close-out letter until after he filed the instant appeal and
requested a copy from OSC. PFR File, Tab 1 at 6, 10; IAF, Tab 6 at 10, Tab 7
at 4-5. The December 7, 2016 email indicates that, based on his representation
that he did not timely receive its October 2, 2015 close-out letter, OSC decided to
reopen his case file for the limited purpose of allowing him to provide additional
comments on OSC’s October 2, 2015 decision to close his file. PFR File, Tab 1
at 10.
7
¶11 However, even assuming that the appellant did not receive notice that OSC
closed its investigation into his retaliation complaint until shortly before he filed
this appeal, we find that it was not reasonable for him to believe that his removal
was included in that investigation. The whistleblower reprisal complaint that he
filed with OSC on February 8, 2014, predated his removal by almost 22 months,
and he has not alleged or provided evidence that he communicated with OSC
regarding his removal or expressed his wish to include his removal in his
complaint. IAF, Tab 1 at 21-29. Moreover, the agency’s removal decision letter
provided him clear notice that he could appeal directly to the Board wi thin the
filing deadline, or file an OSC complaint and subsequently file an individual right
of action appeal with the Board. IAF, Tab 5 at 17-19. In addition, although the
appellant asserts that the initial decision was based partly on an erroneous OSC
file number he provided, he has failed to explain why the alleged factual error is
material to the outcome of this case. 4 PFR File, Tab 1 at 5; ID at 3; see 5 C.F.R.
§ 1201.115(a). Thus, we find that, under the particular circumstances of this
case, the appellant has failed to show that he exercised due diligence or ordinary
prudence in filing his appeal.
¶12 For the first time on review, the appellant claims that, after he was
removed, his doctor ordered him to have no contact with the agency for 6 months
and that his recovery period ended on October 25, 2016 . PFR File, Tab 1 at 6-7.
We find this argument does not provide a basis for disturbing the initial decision.
First, the appellant has failed to explain why he could not have raised it below
after receiving notice of the criteria for showing good cause for a filing delay
based on an illness. IAF, Tab 2 at 4; see Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not consider an
4
The initial decision merely notes that the appellant referenced a second OSC file in his
pleadings (OSC File No. DI-14-1450), ID at 3, which, based on the form of the file
number, would appear to be a disclosure of wrongdoing investigation initiated in 2014.
The administrative judge also explicitly considered his retaliation complaint, OSC File
No. MA-14-1438. ID at 2 n.1, 3-4.
8
argument raised for the first time in a petition for review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence); see also Lacy v. Department of the Navy, 78 M.S.P.R. 434, 438
(1998) (holding that, when an appellant states that the reason for a filing delay is
physical or mental illness, he must receive explicit information regarding the
legal standard for establishing good cause on that basis). Second, even assuming
his doctor ordered him to have no contact with the agency, this would not explain
why he could not file a complaint with OSC or file an appeal with the Board.
¶13 Finally, we decline to address the appellant’s arguments regar ding the
merits of his removal appeal because they are not relevant to the dispositive
timeliness issue. PFR File, Tab 1 at 7, Tab 4 at 5-7, 9-10. Further, we find that
the other documents submitted on review, some of which were contained already
in the record below, are not material to the dispositive timeliness issue . PFR File,
Tab 1 at 9, Tab 4 at 11-14.
¶14 Accordingly, we find that the administrative judge properly dismissed this
appeal as untimely filed without good cause shown.
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
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 indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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).
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.
10
(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. 420 (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:
11
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 any 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.
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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.