Elizabeth M Riley v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH MARY RILEY, DOCKET NUMBER
Appellant, PH-0731-22-0331-I-1
v.
OFFICE OF PERSONNEL DATE: August 12, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jennifer Duke Issacs , Esquire, Atlanta, Georgia, for the appellant.
Tahseen F. Ali , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s suitability determination. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant, proceeding pro se, appealed the agency’s decision finding
her unsuitable for Federal employment and canceling any eligibilities for
reinstatement and to certain appointments, debarring her from appointment to
certain positions for 3 years, and directing her employing agency to separate her.
Initial Appeal File (IAF), Tab 1 at 3, 5, Tab 4 at 16-18. She registered as
an e-filer. IAF, Tab 1 at 2. On December 14, 2022, the administrative judge
issued an initial decision affirming the agency’s determination. IAF, Tab 13,
Initial Decision (ID) at 1-2, 7. On January 4, 2023, the appellant filed a
designation of representative, reflecting that she had retained an attorney. IAF,
Tab 15. 2
The appellant’s attorney filed a petition for review on January 23, 2023.
Petition for Review (PFR) File, Tab 1. After the Clerk of the Board issued
an acknowledgment letter indicating that the petition was untimely filed, the
appellant’s attorney responded, acknowledging that the petition was untimely, but
stating that the delay was due to her illness, i.e., viral gastroenteritis, her delayed
access to the Board’s e-Appeal system, and a miscalculation in the deadline to
submit the petition for review. PFR File, Tab 2 at 1-2, Tab 3 at 2-3. She also
submitted a medical note concerning her illness. Id. at 4. The agency has
responded, arguing that the petition for review should be dismissed as untimely
or, in the alternative, denied on substantive grounds. PFR File, Tab 4.
The petition for review was untimely filed.
A petition for review of an initial decision must be filed within 35 days of
the 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. § 1201.114(e). Here, the
2
This attorney represented the appellant between January 4 and October 31, 2023, and
thus filed the appellant’s petition for review and submission regarding timeliness
discussed herein.
3
administrative judge issued the initial decision on December 14, 2022. ID at 1.
It was electronically served on the parties on the same day. IAF, Tab 14. The
administrative judge informed the parties that the initial decision would become
the Board’s final decision on January 18, 2023, in the absence of a petition for
review. ID at 7. The appellant’s attorney filed the petition for review on
January 23, 2023. PFR File, Tab 1. In the petition for review, the attorney
declared, under penalty of perjury, that the appellant received the initial decision
on December 24, 2022. PFR File, Tab 1 at 3-4.
Documents served electronically on registered e-filers are deemed to have
been received on the day of electronic submission. 5 C.F.R. § 1201.14(m)(2)
(2022). Although the appellant’s attorney declared that the appellant received the
initial decision on December 24, 2022, PFR File, Tab 1 at 3-4, the certificate of
service for the decision shows that the appellant was served electronically on
December 14, 2022, IAF, Tab 14. Further, the statements of a party’s
representative in a pleading do not constitute evidence. Hutchinson v.
Department of Labor, 91 M.S.P.R. 31, ¶ 5 (2001). Although the appellant’s
attorney’s statement was sworn, she claimed to have “personal knowledge” of the
appellant’s receipt date without explaining the basis of her knowledge. PFR File,
Tab 1 at 3. Given that she was not the appellant’s designated representative as of
December 14, 2022, we discern no basis to credit her claim. See generally
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84 (1981) (discussing
factors to consider in deciding whether to credit hearsay evidence). As
an electronic filer, the appellant is deemed to have received the initial decision on
December 14, 2022. See, e.g., Morton v. Department of Veterans Affairs,
113 M.S.P.R. 365, ¶¶ 2-3, 6-7 (2010); Lima v. Department of the Air Force,
101 M.S.P.R. 64, ¶ 5 (2006).
On review, the appellant’s attorney states that she received the initial
decision from the appellant on December 27, 2022, and counted the deadline to
file from that date. PFR File, Tab 3 at 3. The timeline for filing the petition for
4
review begins to run from either the appellant’s or her representative’s receipt of
the initial decision, whichever comes first. 5 C.F.R. § 1201.114(e); see Lima v.
Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006) (deeming
an appellant’s representative to have received an initial decision on the date of
electronic submission and imputing that service date to the appellant). The initial
decision so advised the appellant. ID at 7. As just discussed, the Board deems
the appellant to have received the initial decision on December 14, 2022.
Therefore, the deadline for filing the petition for review began to run on that date.
The last day fell on January 18, 2023, 35 days later. The petition for review,
which was filed on January 23, 2023, was untimely by 5 days.
The appellant did not provide good cause for the delay in filing the petition
for review.
In her response to the Clerk of the Board’s acknowledgment letter, alerting
the appellant’s attorney to the timeliness issue, she has asked that the Board
waive the deadline for the filing of the petition of review for good cause.
PFR File, Tab 3 at 2. In her sworn statement, the appellant’s attorney indicates
that she received notice of the initial decision on December 27, 2022. Id. at 3.
She continues that, though she submitted notice of her representation of the
appellant to the Board on January 4, 2023, she was not given access to e-Appeal
until January 17, 2023, which she states significantly limited her time “to review
previously submitted documents.” Id. at 2. She explains that she failed to ask the
Board for an extension of time to file the petition because she erroneously
calculated its due date from the date she received the initial decision, not from the
date the appellant received it. Id. at 3.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 4 (2009); 5 C.F.R. §§ 1201.113(d),
1201.114(g). To establish good cause for an untimely filing, a party must show
that she exercised due diligence or ordinary prudence under the particular
5
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 her excuse and
her showing of due diligence, whether she is proceeding pro se, and whether
she has presented evidence of the existence of circumstances beyond her control
that affected her ability to comply with the time limits or of unavoidable casualty
or misfortune which similarly shows a causal relationship to her inability to
timely file her petition. 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).
Though a 5-day delay is not lengthy, in the interests of judicial efficiency
and fairness, the Board will not waive its timeliness requirements in the absence
of good cause, no matter how minimal the delay. Fitzgerald v. Department of
Veterans Affairs, 45 M.S.P.R. 222, 223 (1990); see Barr v. Office of Personnel
Management, 50 M.S.P.R. 66, 67-68 (1991) (declining to waive a 1-day delay in
refiling a petition for review when the appellant received the refiling notice from
the Clerk at least 3 days prior to the deadline), aff’d, 975 F.2d 868 (Fed. Cir.
1992) (Table); Willis v. United States Postal Service, 43 M.S.P.R. 439, 440-42
(finding an appellant’s failure to follow straightforward directions in an initial
decision showed that he did not exercise due diligence or ordinary prudence when
he filed his petition for review 4 days late), aff’d per curiam, 907 F.2d 158 (Fed.
Cir. 1990) (Table).
The brevity of the delay notwithstanding, the appellant has not shown good
cause for her failure to meet the filing deadline. As previously discussed, the
appellant is deemed to have received the initial decision on the same day it was
issued. Officially, the appellant was pro se at the time, but she obtained
an attorney no later than January 4, 2023, when the representative submitted the
endorsed designation of representative. IAF, Tab 15; PFR File, 3 at 2. The initial
decision clearly states that the filing deadline was January 18, 2023, 14 days after
the appellant designated her attorney. ID at 7. The Board has long held that an
6
appellant is responsible for the errors of her chosen representative. Sofio v.
Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). Further, the appellant
remains personally liable for the timely prosecution of her appeal whether or
when she is represented. Brady v. Department of Labor, 57 M.S.P.R. 341, 346
(1993), aff’d per curiam, 26 F.3d 138 (Fed. Cir. 1994) (Table). Therefore, we
decline to excuse the 5-day delay based on the failure of the appellant’s attorney
to understand the deadline as clearly stated in the initial decision. ID at 7.
The appellant’s attorney explains on review that from January 8 to 17,
2023, she “was suffering from a virus that left [her] in bed for the entire week.”
PFR File, Tab 3 at 2. On January 14, 2023, she was diagnosed with viral
gastroenteritis by her physician who advised her “to continue to rest and return to
work the following week.” Id.To establish that an untimely filing resulted from illness, the party must, as
relevant here, explain how the illness prevented her from timely filing her appeal
or a request for an extension of time. Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998). The appellant’s attorney has not claimed that her
illness prevented her from doing either. Instead, she identifies the sole cause of
her failure to timely request an extension as her error in calculating the deadline,
and states that if she had “realized [her] error, [she] would have asked the Board
for an extension.” PFR File, Tab 3 at 3. Further, the attorney’s ability to access
e-Appeal on January 17, 2023, is inconsistent with her claim that she was unable
to work at the time. In sum, the appellant has not shown that she exercised due
diligence or ordinary prudence under the circumstances of this case.
We therefore dismiss the petition for review as untimely filed by 5 days
without a showing of good cause for the delay. 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
removal appeal.
7
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).
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:
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.
8
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. 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
9
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
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
10
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. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.