Lori Christian v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI CHRISTIAN, DOCKET NUMBER
Appellant, PH-0752-22-0289-I-1
v.
DEPARTMENT OF VETERANS DATE: September 10, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Aaron D. Wersing , Esquire, and Jacquelyn Trevino , Esquire,
Houston, Texas, for the appellant.
Craig Allen Komorowski , Esquire, Huntington, West Virginia,
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
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for failure to prosecute . For 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 On July 28, 2022, the appellant filed a Board appeal alleging that her
June 28, 2022 resignation had been involuntary. Initial Appeal File (IAF), Tab 1
at 4. She requested a hearing on the matter. Id. at 2. On July 29, 2022, the
administrative judge ordered the appellant to file evidence and argument
regarding Board jurisdiction within 15 days. IAF, Tab 2 at 3. Thereafter, on
August 15, 2022, the administrative judge issued a show cause order indicating
that the appellant had failed to respond and cautioning that repeated failures to
follow Board orders could result in a dismissal for failure to prosecute. IAF,
Tab 4 at 1. On this same date, the appellant, through counsel Aaron D. Wersing,
filed a response to both the show cause order and the jurisdictional order,
arguing, among other things, that the jurisdictional response was timely filed. 2
IAF, Tab 5 at 4-10.
¶3 On November 30, 2022, December 9, 2022, and December 14, 2022, the
administrative judge issued orders scheduling telephonic status conferences;
however, the appellant failed to appear for all three conferences. IAF, Tab 16
at 1; Tab 17 at 1; Tab 18 at 1; Tab 19, Initial Decision (ID) at 2. As a result, on
two additional occasions, the administrative judge cautioned the appellant that
repeated failures to follow Board orders could result in dismissal for failure to
prosecute. IAF, Tab 17 at 1, Tab 18 at 1. On December 20, 2022, without
holding the appellant’s requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to prosecute. ID at 1, 3. The
2
Although not material to the outcome of this appeal, we clarify that the appellant was
correct regarding the timeliness of the jurisdictional response; indeed, Board
regulations provide that if, as here, the date that ordinarily would be the last day for
filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the
first workday after that date. 5 C.F.R. § 1201.23.
3
initial decision stated that the decision would become final on January 24, 2023,
unless a petition for review was filed by that date. ID at 3.
¶4 On March 28, 2023, the appellant filed a petition for review with the Board.
Petition for Review (PFR) File, Tab 1. The petition, which was electronically
filed by Mr. Wersing, id. at 1, 11, provided the following explanation for the
untimeliness of the filing in the online interview section:
From what I can tell, it appears that the MSPB did not receive, or did
not process, the Designation of Representative for Attorney
Jacquelyn Trevino who was Appellant’s representative and whose
designation was mailed to the MSPB. Ms. Trevino and I became
aware of the decision earlier this month when Appellant contacted us
regarding the decision, and immediately began preparing a petition
for review regarding timeliness.
Id. at 3. 3
¶5 The body of the petition for review, which is signed by Ms. Trevino, id.
at 10, asserted, among other things, that the law firm retained by the appellant
had internally assigned this appeal to Ms. Trevino, id. at 5. The petition stated
that Ms. Trevino had filed a designation of representative form “by mail as the
MSPB Portal does not accept this filing electronically.” Id. It also averred that
Ms. Trevino had been in contact with agency counsel during the pendency of the
appeal before the administrative judge and had worked with agency counsel on
discovery matters. Id. at 5-6. The petition contended that Ms. Trevino was
unaware of the administrative judge’s status conference-related orders, and that
neither the administrative judge nor agency counsel had telephoned her regarding
the same. Id. at 6, 9. With the petition, the appellant’s counsel provided, among
other things, a declaration from Ms. Trevino submitted under penalty of perjury.
Id. at 14-15. In her declaration, Ms. Trevino indicated that she had “researched,
drafted and filed a response on the jurisdiction in this matter on August 18,
3
This section of the petition for review asked the appellant’s counsel whether he
declared, under the penalty of perjury, that the facts asserted regarding the timeliness of
the petition for review were true and correct. PFR File, Tab 1 at 4. Counsel answered
this question in the negative. Id.4
2022,” 4 and that she had mailed a copy of her designation of representative form
to the Board on August 30, 2022. Id. at 14-15. Also, attached to the petition for
review was a copy of a designation of representative signed by Ms. Trevino,
dated August 30, 2022, but no certificate of service indicating the method of
service upon the Board or opposing counsel was provided. Id. at 12.
¶6 Thereafter, the Office of the Clerk of the Board notified the appellant that
her petition for review was untimely and explained that the Board’s regulations
require that a petition for review that appears to be untimely filed be accompanied
by a motion to accept the filing as timely or to waive the time limit for good
cause. PFR File, Tab 2 at 1-2. The appellant did not submit any additional
filings.
¶7 The agency has responded to the appellant’s petition for review, arguing
that it is untimely filed with no good cause shown and that the appellant has not
presented a basis for disturbing the initial decision. PFR File, Tab 3 at 4-11. The
agency contends, among other things, that Ms. Trevino could have registered as
an e-filer but elected not to do so and, in any event, over 4 months passed
between Ms. Trevino’s alleged mailing of the designation of representative form
and the issuance of the initial decision. Id. at 4 n.1. The agency also asserts that
Mr. Wersing never withdrew as the appellant’s designated representative. Id.at 4 & n.1.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review was untimely filed.
¶8 A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
4
As indicted above, the appellant’s jurisdictional response was filed on August 15,
2022; however, this document was electronically submitted, and signed, by
Mr. Wersing. IAF, Tab 5 at 1, 10-11.
5
was issued on December 20, 2022, and electronically sent to both the appellant
and her designated representative, Mr. Wersing, the same day. ID at 1; IAF,
Tab 20 at 1.
¶9 Here, Mr. Wersing has asserted that he does not know when he received a
copy of the initial decision and that he was unaware that the initial decision had
been issued until the appellant contacted him on an unspecified date in March
2023. PFR File, Tab 1 at 3. However, as a registered e-filer, Mr. Wersing
consented to accept electronic service of pleadings filed by other registered
e-filers and documents issued by the Board. See 5 C.F.R.
§ 1201.14(e)(1) (2022). 5 A registered e-filer must, among other things, monitor
case activity in e-Appeal to ensure that he has received all case-related
documents. 6 5 C.F.R. § 1201.14(j)(3) (2022). Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission. 5 C.F.R. § 1201.14(m)(2) (2022). The appellant is therefore deemed
to have received the initial decision on December 20, 2022; accordingly, the
petition for review is untimely by approximately 2 months. PFR File, Tab 1; see
5 C.F.R. § 1201.114(e).
The appellant has not established good cause for the filing delay.
¶10 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. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
5
The Board’s regulation regarding electronic filing procedures, 5 C.F.R. § 1201.14,
was amended on October 2, 2023, i.e., while the petition for review was pending before
the Board. These amendments are not material to the outcome of this appeal.
6
In the petition for review, appellant’s counsel concedes that an internal law firm
review revealed that Mr. Wersing had received notices regarding the instant appeal.
PFR File, Tab 1 at 10 n.2; see 5 C.F.R. § 1201.14(j)(1) (2022) (explaining that when the
Board issues documents in a particular appeal, the e-filers for that appeal receive email
messages notifying them of the issuance). Counsel asserts that, because Mr. Wersing
was not internally assigned the case, he “did not go through the internal procedure to
schedule and docket.” PFR File, Tab 1 at 10 n.2.
6
of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and 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 comply
with the time limits or of unavoidable casualty of misfortune that similarly shows
a causal relationship to her inability to file a timely petition. See Wyeroski v.
Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.
Cir. 2007).
¶11 Here, we do not find good cause for the untimely filing of the appellant’s
petition for review. To this end, the appellant was represented by counsel and the
2-month filing delay is significant. See, e.g., Floyd v. Office of Personnel
Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal).
We have considered all of the arguments presented by the appellant’s counsel on
review; however, we find that none constitute good cause for the filing delay. To
the extent Mr. Wersing no longer intended to represent the appellant before the
Board in this matter, he could have withdrawn as her representative; however, he
did not do so and continued to receive service of pleadings. Indeed, as indicated,
he filed the petition for review in this matter. PFR File, Tab 1 at 1, 11. To the
extent Ms. Trevino intended to become the sole representative for the appellant in
August 2022, she fails to explain why she did not contact the Board until
March 2023, despite not having received service of any Board pleadings. 7 Lastly,
7
We have considered appellant’s counsel’s argument that agency counsel should have
performed “his duty of candor” to inform the administrative judge that he had been in
contact with Ms. Trevino or tell appellant’s counsel that the judge was looking for
them. PFR File, Tab 1 at 10 n.3. We have also considered that agency counsel did not
state in his response to the appellant’s petition for review whether he had received
Ms. Trevino’s notice of appearance, PFR File, Tab 3, and thus, we find it more likely
than not that Ms. Trevino served agency counsel with such notice. However, even
assuming that agency counsel did not disclose his contact with Ms. Trevino to the
tribunal and further assuming he had such a duty to do so, the fact remains that
Mr. Wersing remained as counsel, was served, and failed to respond to the
administrative judge’s orders.
7
to the extent counsel argues that an internal case reassignment precipitated the
filing delay, we find counsel’s argument unavailing. See Philpot v. Office of
Personnel Management, 9 M.S.P.R. 554, 555 (1982) (agreeing with the presiding
official’s determination that counsel had not shown good cause for an untimely
filing when counsel alleged that the delay had been precipitated by, among other
things, the attorney who had previously handled the appellant’s case departing
from counsel’s law firm). Simply put, Mr. Wersing’s decision to “not go through
the internal procedure to schedule and docket,” does not constitute good cause
under the circumstances. Thus, we find that the appellant’s counsel did not
exercise due diligence under the circumstances. 8
¶12 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 regarding the involuntary resignation appeal.
NOTICE OF APPEAL RIGHTS 9
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
8
The appellant is responsible for the errors of her chosen representatives. See Reaves
v. Department of Veterans Affairs, 92 M.S.P.R. 352, ¶ 7 (2002); see also Graham v.
Department of the Army, 47 M.S.P.R. 38, 40 (1991) (explaining that an appellant has an
affirmative duty to monitor the progress of an appeal and to ensure that it is timely
filed).
9
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
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.
9
(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.
10
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
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. 10 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).
10
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.