Walter A Lamar v. Department of the Air Force ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WALTER A. LAMAR, JR., DOCKET NUMBER
Appellant, AT-1221-22-0460-W-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 18, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Walter A. Lamar, Jr. , Macon, Georgia, pro se.
Gregory Lloyd , Robins Air Force Base, Georgia, 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
dismissed his individual right of action (IRA) 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant, a former GS-9 Production Management Specialist, filed the
instant IRA appeal, alleging that his involuntary retirement was the result of
whistleblower reprisal. Initial Appeal File (IAF), Tab 1 at 1, 3; Petition for
Review (PFR) File, Tab 1 at 2. The appellant included a copy of the final
determination letter from the Office of Special Counsel (OSC). The
administrative judge issued an order to show cause on the issue of jurisdiction.
IAF, Tab 3. The appellant did not respond. After the agency moved to dismiss
the appeal, the administrative judge issued an initial decision finding that the
appellant failed to show that he exhausted his involuntary retirement with OSC
and dismissing the appeal for lack of jurisdiction. IAF, Tabs 5, 10, Initial
Decision (ID) at 1, 4. The decision notified the appellant that it would become
final on August 19, 2022, unless a petition for review was filed by that date. ID
at 4.
On September 5, 2022, the appellant filed a copy of his OSC complaint
form and a March 14, 2011 removal decision with the regional office. PFR File,
Tab 1. Then, on January 13, 2023, and March 9, 2023, he filed two additional
documents with the regional office, requesting that the Board “reopen” and
review the initial decision. PFR File, Tabs 2-3. Accordingly, the regional office
forwarded his submissions to Board for processing as a petition for review. PFR
File, Tab 4 at 1. The Clerk of the Board subsequently notified the appellant that
his September 5, 2022 submissions were being considered as a petition for
review, and his January 13, 2023 and March 9, 2023 submissions as supplements
to his petition for review. Id. The Clerk further notified the appellant that his
petition for review appeared to be untimely and provided him with an opportunity
to submit a motion requesting either to accept the filing as timely or waive the
time limit for good cause. Id. at 1-2. The appellant has filed a timeliness motion,
3
and the agency has moved to dismiss the petition for review as untimely. PFR
File, Tabs 5-6. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is untimely filed.
The initial decision indicated that the appellant’s petition for review had to
be filed by August 19, 2022. ID at 4. However, the appellant did not file his
petition for review until September 5, 2022, seventeen days after the deadline.
PFR File, Tab 1. 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 appellant is registered as an e-filer and, therefore, is deemed
to have received the administrative judge’s orders on the date of electronic
submission, pursuant to 5 C.F.R. § 1201.14(m)(2) (2022). Rivera v. Social
Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); IAF, Tab 1 at 2, Tab 7.
Further, as an e-filer, the appellant was responsible for monitoring his case
activity at e-Appeal to ensure that he received all case-related documents.
5 C.F.R. § 1201.14(j)(3) (2022).
We deem the appellant to have received the initial decision on July 15,
2022, the date it was electronically submitted. ID at 1; IAF, Tab 7. His deadline
for filing a petition for review was 35 days later, on August 19, 2022. PFR File,
Tab 4 at 2. Therefore, the appellant’s September 5, 2022 petition for review was
untimely filed by 17 days.
2
The appellant filed a motion to accept filing as timely and/or ask the Board to waive
or set aside the time limit over 7 months after the deadline set by the Clerk’s Office,
and he offers no explanation for its untimeliness. PFR File, Tabs 4, 6. We therefore
decline to consider it in deciding the issue of the timeliness of the appellant’s petition
for review. See Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶ 8 (2010)
(finding that, in the absence of a motion showing good cause for an untimely filing, the
Board may exercise its discretion to decide the issue based on the existing record);
5 C.F.R. § 1201.114(f).
4
The appellant has not demonstrated good cause for his untimely filed petition for
review.
In his petition for review, the appellant argues that he requested an
extension and encountered “a series of obstacles” that prevented him from timely
filing a copy of his OSC complaint, which he submitted to the Board on review.
PFR File, Tab 2 at 1. 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(f)-(g). To
establish good cause for an untimely filing, 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). 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 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 discovery of new
evidence may constitute good cause for waiver of the Board’s filing deadline if
the evidence was not readily available before the close of the record below and is
of sufficient weight to warrant an outcome different from that of the initial
decision. Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575
(1994), aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table).
Applying the Moorman factors, we find that the appellant has failed to
establish good cause for his untimely petition for review. Although the appellant
is proceeding pro se, his 17-day delay in filing is not minimal. See Rivera,
111 M.S.P.R. 581, ¶¶ 6-7 (declining to excuse a pro se appellant’s 5-day delay in
filing a petition for review allegedly caused by the loss of electricity during a
portion of the filing period). We also find unpersuasive his allegation that he
requested an extension. There is no record of the appellant’s alleged request for
5
an extension of time. The appellant did not provide a copy of his request,
indicate to whom he made it, or allege that he made the request on or before the
filing deadline. See Siler v. U.S. Postal Service, 76 M.S.P.R. 10, 14 (1997)
(finding the appellant’s attorney’s allegation that he left a telephone message for
the Clerk of the Board regarding “snags” that prevented him from preparing his
petition for review did not establish that the appellant requested an extension of
time on or before the filing deadline).
To the extent the appellant may be arguing that he experienced technical
difficulties in filing his petition for review, we find that any technical difficulties
he encountered do not outweigh his failure to show that he acted with due
diligence in filing his pleading. In assessing a party’s allegation that an untimely
filing was due to technical difficulties, the Board will consider the particular
circumstances of the case. Compare Wiggins v. Department of the Air Force,
113 M.S.P.R. 443, ¶¶ 7, 9 (2010) (finding good cause when the pro se appellant
created his petition for review in e-Appeal before the deadline but did not
complete the electronic submission until 4 minutes after the filing deadline),
Boykin v. U.S. Postal Service, 104 M.S.P.R. 460, ¶ 6 (2007) (excusing a 1-day
delay in filing when an appellant’s representative reported making multiple
attempts to timely file and the Board’s records reflected a high incidence of users
reporting problems with the e-Appeal system during the date in question), and
Social Security Administration v. Price, 94 M.S.P.R. 337, ¶ 7 (2003) (finding
good cause when agency counsel began sending the petition via facsimile on the
due date but, due to technical problems, failed to complete the submission until
34 minutes past the filing deadline), aff’d, 398 F.3d 1322 (Fed. Cir. 2005), with
Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶¶ 5-10 (2014) (declining
to excuse a 7-day delay for claimed difficulties with e-Appeal when, inter alia,
the appellant’s representative was familiar with e -Appeal and failed to submit a
motion showing good cause), and Gaetos v. Department of Veterans Affairs,
6
121 M.S.P.R. 201, ¶ 6 (2014) (declining to excuse a petition that was untimely by
3.5 hours when the petitioner failed to establish a good reason for the delay).
Based on the facts of this case, we find that the appellant has not
established good cause for his untimeliness. As set forth above, the record does
not indicate that he requested an extension nor that he attempted to timely file his
petition by an alternate method. See 5 C.F.R. § 1201.14(f) (2022) (“A party or
representative who has registered as an e-filer may file any pleading by non-
electronic means, i.e., via postal mail, fax, or personal or commercial delivery.”).
Instead, he delayed and chose to hand-deliver his pleading on September 5, 2022,
which was 17 days after the filing deadline. PFR File, Tab 1 at 1; see generally
Snipes v. Office of Personnel Management, 32 M.S.P.R. 66, 67 (finding no good
cause for the delay when the appellant failed to request an extension of time from
the Board to obtain a report known to the appellant before the expiration of the
filing period), aff’d, 831 F.2d 306 (Fed. Cir. 1987) (Table). Under these
circumstances, the appellant has not shown that he acted with due diligence in
filing his pleading.
To the extent the appellant argues that his ability to now submit his OSC
complaint shows good cause, we are also not persuaded. PFR File, Tab 2 at 1.
The appellant did not show that his OSC complaint, which was necessarily filed
with OSC before its April 19, 2022 final determination letter, was not available
before the record closed on July 14, 2022. IAF, Tab 1 at 6, Tab 3 at 8.
Therefore, we find that the appellant has not presented new evidence on which to
grant review of the initial decision. Mills v. U.S. Postal Service, 119 M.S.P.R.
482, ¶¶ 3, 5 (2013) (finding the Board would not consider the appellant’s EEO
report of investigation because the appellant failed to show that the information
in the documents was unavailable before the close of record).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
7
of the petition for review. The initial decision remains the final decision of the
Board regarding this IRA appeal.
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).
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
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.
(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
9
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:
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
10
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. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision. 5 .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
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
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.