Carol Stinchcomb v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL R. STINCHCOMB, DOCKET NUMBER
Appellant, DA-0714-21-0067-I-1
v.
DEPARTMENT OF VETERANS DATE: April 16, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carol R. Stinchcomb , Oklahoma City, Oklahoma, pro se.
Patrick A. Keen , Esquire, Shreveport, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as barred by the doctrine of collateral estoppel. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
On August 5, 2020, the agency removed the appellant from her position as
a Supervisory Medical Support Assistant, pursuant to 38 U.S.C. § 714. Initial
Appeal File (IAF), Tab 1 at 2, Tab 6 at 11-12. As set forth in the decision notice,
an appeal of such an action is generally required to be filed within 10 business
days of the effective date of the action. 38 U.S.C. § 714(c)(4)(B); IAF, Tab 6
at 13. The appellant appealed her removal on August 20, 2020, and the
administrative judge issued an initial decision on October 2, 2020, dismissing the
appeal as untimely filed under 38 U.S.C. § 714(c)(4)(B). Stinchcomb
v. Department of Veterans Affairs, MSPB Docket No. DA-0714-20-0501-I-1,
Initial Decision (Oct. 2, 2020). That decision became final on November 6, 2020,
when neither party filed a petition for review. Id. at 4.
On November 13, 2020, the appellant filed the instant appeal, again
challenging her removal. IAF, Tab 1. The administrative judge issued an order
on timeliness, instructing the appellant to file evidence and argument showing
that good cause existed for the filing delay, and an order on the Board’s
preclusion doctrines, ordering her to file evidence and argument to show good
cause why her appeal should not be dismissed on either collateral estoppel or res
judicata grounds. IAF, Tabs 3, 8. The appellant did not respond to either order.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 2, on
January 4, 2021, the administrative judge issued an initial decision dismissing the
appellant’s appeal as barred by the doctrine of collateral estoppel, IAF, Tab 9,
Initial Decision (ID). She also noted that, even if the appellant was not
collaterally estopped from relitigating her claim, her appeal was otherwise
untimely filed under 38 U.S.C. § 714, and she has not shown that the doctrine of
equitable tolling should apply to excuse the delay. ID at 3 n.*. The
administrative judge informed the appellant that any petition for review of the
initial decision must be filed no later than February 8, 2021, and included
instructions on how to do so. ID at 4-6.
3
On February 13, 2021, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1 at 4. Therein, she again
challenged her removal and argued that it was taken in reprisal for filing a
whistleblower complaint and that it was based on systemic racism. Id. at 1. In a
letter acknowledging the appellant’s submission, the Acting Clerk of the Board
notified the appellant that her petition for review was untimely filed. PFR File,
Tab 2 at 2. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely to be accompanied by a motion
to accept the filing as timely and/or to waive the time limit for good cause, and
set a deadline for the appellant to file such a motion. Id. It also informed the
appellant of what she must show in order to establish that her delay in filing was
the result of illness. Id. at 7 n.1.
The appellant subsequently filed a motion, explaining that she “was so
devastated and confused” over her removal and that the initial administrative
judge told her that she “wouldn’t win” her appeal. PFR File, Tab 3 at 1. She also
asserts that she went into “a deep depression,” and was “about to become
homeless.” Id. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown.
The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on
January 4, 2021. ID at 1. Thus, as the administrative judge correctly informed
the appellant, she was required to file any petition for review no later than
February 8, 2021. ID at 4. The appellant’s petition for review of the initial
4
decision was filed on February 13, 2021. PFR File, Tab 1 at 4, Tab 2 at 1. As
such, we find that the petition for review is untimely filed by 5 days.
The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo, 120 M.S.P.R. 694, ¶ 4; 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. Palermo, 120 M.S.P.R. 694, ¶ 4; 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 Board may decline to excuse a pro se appellant’s
minimal delay when she fails to establish that she acted with due diligence.
See, e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7-8
(2002).
Additionally, as explained above, the appellant asserts on review that her
mental health was affected by the removal action and that she suffers from
depression. PFR File, Tab 3 at 1. We construe this as a claim that a mental
illness affected her ability to timely file her petition for review. See, e.g.,
Tacujan v. U.S. Postal Service, 109 M.S.P.R. 553, ¶ 7 (2008); Hawkins
v. Department of the Navy, 67 M.S.P.R. 559, 561-62 (1995). To establish good
cause for an untimely petition for review based on mental illness, an appellant
must (1) identify the time period during which she suffered from the illness;
(2) submit corroborating evidence showing that she suffered from the alleged
5
illness during that time period; and (3) explain how the illness prevented her from
timely filing her appeal or request for an extension of time. Nesby v. Office of
Personnel Management, 81 M.S.P.R. 118, ¶ 7 (1999); Lacy v. Department of the
Navy, 78 M.S.P.R. 434, 437 (1998).
Although the appellant is proceeding pro se, and her 5-day delay can
generally be regarded as “relatively de minimis,” see Brown v. Office of
Personnel Management, 86 M.S.P.R. 417, ¶ 8 (2000), we nonetheless find that
she has not established good cause to waive the filing deadline. As noted above,
in the Clerk of the Board’s acknowledgement order informing the appellant that
her petition for review was untimely filed, it provided her with what she must
show in order to establish good cause for an untimely petition for review if she
alleges that her health affected her ability to meet the filing deadline, consistent
with Board precedent in Lacy. PFR File, Tab 2 at 7 n.1. The appellant’s motion
to waive or set aside the time limit did not provide any of that information.
PFR File, Tab 3. To wit, she has not identified the time period during which she
was mentally incapacitated, nor has she submitted any documentary evidence
demonstrating that she suffers from mental illness or explained how her mental
illness prevented her from timely filing her petition for review. Rather, she
simply asserts, without any supporting evidence or explanation of how it affected
the untimely filing, that she suffers from depression.
When, as here, an appellant fails to provide any of the information called
for in Lacy, particularly an explanation of how the mental illness caused the delay
in filing, the Board has consistently declined to find good cause for an untimely
filing. See Cameron v. Department of the Navy, 112 M.S.P.R. 350, ¶ 13 (2009)
(finding no good cause shown when a petition for review does not offer any
evidence or explanation as to why an appellant’s mental health issues resulted in
delay in filing); Davis v. U.S. Postal Service, 101 M.S.P.R. 107, ¶ 6 (2006)
(finding that an appellant failed to establish good cause for an untimely petition
for review when he failed to explain how his depression caused his delay in filing
6
or to submit any documentation in support of his claim), aff’d, 192 Fed. App’x
966 (Fed. Cir. 2006). Thus, although we are sympathetic to the appellant’s
medical condition, we find that she has failed to establish good cause based on
mental illness.
As noted above, the appellant also asserts in her motion that she “was about
to become homeless.” PFR File, Tab 3 at 1. However, she has not explained how
that situation prevented her from filing a timely petition for review. For instance,
she has not alleged that she was unaware of the filing deadline or that she was
unable to access a computer or facsimile machine, nor has she alleged that she
was unable to travel to a U.S. Postal Service location or any commercial delivery
service to submit a petition for review. As such, we find that the appellant failed
to establish that she experienced circumstances beyond her control that affected
her ability to comply with the time limits. See Palermo, 120 M.S.P.R. 694, ¶ 4;
Moorman, 68 M.S.P.R. at 62-63.
In sum, although the appellant is acting pro se and her delay in filing her
petition for review was relatively minimal, we find that she failed to establish that
she exercised due diligence or ordinary prudence under the circumstances of her
case. 2 See Lockhart, 94 M.S.P.R. 396, ¶¶ 7-8. Accordingly, we dismiss the
appellant’s petition for review as untimely filed without good cause shown. 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.
2
The appellant submitted with her motion to accept the filing as timely and/or to waive
the time limit for good cause an e-mail that appears to include her response to the
proposed removal action. PFR File, Tab 3 at 5-6. This document does not address the
issue of timeliness of the appellant’s petition for review, and is, therefore, not relevant
to our inquiry here.
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.