Robert Troise v. Department of the Treasury ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. TROISE, DOCKET NUMBER
Appellant, CH-3443-20-0230-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: September 6, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert J. Troise , Wichita Falls, Texas, pro se.
Aaron J. Bennett , Esquire, and Bridgette M. Gibson , Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
In February 2020, the appellant filed his initial appeal challenging his
nonselection for a position due to alleged suitability concerns. Initial Appeal File
(IAF), Tab 1. On March 20, 2020, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction with a finality date of
April 24, 2020. IAF, Tab 13, Initial Decision (ID) at 1, 6. The appellant filed the
instant petition for review on September 23, 2020. Petition for Review (PFR)
File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
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(e). The Board will waive its filing deadline only upon a showing of
good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good
cause for an untimely filing, the appellant must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). 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 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).
The appellant’s petition for review was due on or before April 24, 2020.
ID at 6; see 5 C.F.R. § 1201.114(e). It was filed approximately 5 months late, on
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September 23, 2020. PFR File, Tab 1. Applying the factors above, we find that
the appellant has failed to establish good cause for his approximately 5-month
delay in filing his petition for review. Although he is proceeding pro se, a
5-month delay is significant. See, e.g., Mashack v. U.S. Postal Service,
96 M.S.P.R. 174, ¶ 8 (2004) (finding a 3½-month delay significant). The
appellant states that he was unable to access a library computer to file his appeal
due to the COVID-19 pandemic. PFR File, Tab 3 at 1. However, he does not
identify whether the library was closed during the entire period between March 20
and September 23, 2020, and he does not explain why he did not attempt to
submit pleadings by mail or otherwise contact the Board during this 5 -month
period. Id. Additionally, the appellant filed pleadings in another matter on
August 11, 2020, and he does not explain why he was unable to file the instant
petition for review on or about August 11, 2020. Troise v. Department of the
Treasury, MSPB Docket No. CH-3443-20-0230-A-1, Attorney Fees File, Tab 1.
The appellant’s arguments about the merits of the agency’s action are irrelevant
to the issue of the timeliness of his petition for review. PFR File, Tab 1 at 1,
Tab 3 at 1; see, e.g., Abney v. Office of Personnel Management, 89 M.S.P.R. 305,
¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002). In addition, the appellant’s
general assertion that he did not know he could ask for an extension of time does
not excuse his failure to request an extension in advance of the filing date. See
Mashack, 96 M.S.P.R. 174, ¶ 9; 5 C.F.R. § 1201.114(f). The appellant therefore
failed to establish that he exercised ordinary prudence under the circumstances.
To the extent the appellant is contending that the documents he submits on
review constitute new and material evidence that would justify his untimely
filing, he fails to provide a basis for waiving the filing deadline. PFR File,
Tabs 1, 3. One of the documents the appellant submits on review was previously
submitted to the administrative judge and is not new. IAF, Tab 5 at 2; PFR File,
Tab 1 at 2; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
The appellant submits two documents that are dated after the issuance of the
4
initial decision, including a June 18, 2020 memo from the Department of the
Army regarding its security investigation of the appellant and a September 29,
2020 letter from the Federal Emergency Management Agency (FEMA),
confirming authorization from FEMA’s security department to move forward with
the appellant’s onboarding. PFR File, Tab 1 at 3, Tab 3 at 3. The appellant did
not act diligently in bringing the June 18 memo to the Board’s attention because
he delayed filing it by more than 3 months. See Jenkins-Nye v. General Services
Administration, 34 M.S.P.R. 382, 384-85 (1987) (finding that a more than
2-month delay between discovery of alleged new evidence and filing it with the
Board did not constitute due diligence). Even if the appellant had diligently
brought the June 18 memo to the Board’s attention, the appellant’s point
regarding the document is duplicative of arguments made before the
administrative judge, i.e., that he had been given a clear background check at the
time of the nonselection, and is not relevant to the issues of timeliness or
jurisdiction. ID at 5; IAF, Tab 1 at 5, Tab 5 at 1; PFR File, Tab 1 at 1; see, e.g.,
Abney, 89 M.S.P.R. 305, ¶ 4 (holding arguments related to the merits are not
relevant to timeliness). Similarly, the September 29 email, which is dated after
the appellant filed his petition for review and concerns another agency’s job offer
to the appellant, relates to the merits of the underlying action and is not relevant
to jurisdiction or timeliness. PFR File, Tab 3 at 3; see, e.g., Abney, 89 M.S.P.R.
305, ¶ 4. Thus, the September 29 email is not new and material evidence. There
is no evidence or argument that the agency possessed these documents during the
pendency of the appeal and wrongfully withheld them from the appellant, and
thus we find no basis to waive the time limit. Cf. Armstrong v. Department of the
Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (directing the Board to consider
whether an appellant diligently filed with the Board newly discovered evidence
related to his claim of fraud, which he alleged the agency wrongfully withheld).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
5
of the petition for review. The initial decision remains the final decision of the
Board regarding its jurisdiction over this appeal.
NOTICE OF APPEAL RIGHTS 2
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:
2
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.
6
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
7
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
8
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. 3 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.
3
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.
9
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.