Dezara Wolfe v. Department of Health and Human Services ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEZARA WOLFE, DOCKET NUMBER
Appellant, AT-0351-19-0283-I-1
v.
DEPARTMENT OF HEALTH AND DATE: May 10, 2024
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kim Carpenter , Esquire, Sylva, North Carolina, for the appellant.
Julie A. Sammons , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal of her separation through reduction in
force (RIF) procedures. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, FIND the appeal
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
was timely filed, and REMAND the appeal to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
Effective December 13, 2018, the agency separated the appellant from her
Diagnostic Radiologic Technologist position with the Indian Health Service
through RIF procedures. Initial Appeal File (IAF), Tab 1 at 11-13. On
February 17, 2019, the appellant filed her appeal and requested a hearing. Id.
at 1-2. The administrative judge subsequently issued a timeliness order informing
the appellant that her appeal appeared to be untimely and directed her to file
evidence and argument to prove either that her appeal was timely filed or that
good cause existed for her untimely filing. IAF, Tab 11. The appellant did not
respond to the timeliness order. In an initial decision, the administrative judge
dismissed the appeal as untimely filed. IAF, Tab 14, Initial Decision (ID) at 1, 3.
The administrative judge found that the appellant had not presented any reason
for her delay in filing and that she had failed to exercise due diligence.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s action, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). An appellant bears the burden of proof by a preponderance of
the evidence on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). Under
the Board’s regulations, the appellant was required to file her RIF appeal on or
before January 14, 2019, or 30 days after the effective date of her RIF. 2
2
Because the filing deadline fell on January 12, 2019, a Saturday, it is extended until
January 14, 2019. 5 C.F.R. § 1201.23. The administrative judge improperly stated that
the appellant was required to file her appeal by January 12, 2019. ID at 2.
3
At midnight on December 22, 2018, the Board ceased all operations due to
a partial Government shutdown. PFR File, Tab 1 at 5-6. 3 The Board issued a
press release that notified the public that all filing and processing deadlines
would be extended by the number of calendar days that the Board was shut down.
Id. On January 26, 2019, the Board resumed operations after being shut down for
35 days. 4 Thus, the appellant’s January 14, 2019 filing deadline was extended
35 days to February 18, 2019.
On review, the appellant argues that her appeal was timely filed in
accordance with the instructions in the Board’s press release concerning the
partial shutdown. Id. at 1-2, 5-6. Although the appellant incorrectly asserts,
without explanation, that her “new deadline” was March 5, 2019, id. at 2, we
agree that she timely filed her appeal. The administrative judge acknowledged
that the appellant’s filing deadline “fell during the [F]ederal [G]overnment
shutdown and the Board was closed during this time,” but she did not address the
extension of filing deadlines. ID at 2; PFR File, Tab 1 at 5-6. The appellant filed
her February 17, 2019 appeal 1 day prior to the extended filing deadline.
Therefore, the appeal was timely filed.
The agency argues that the appellant’s failure to respond to the timeliness
order or provide any reason for her alleged filing delay demonstrates a lack of
due diligence. PFR File, Tab 3 at 8-10. The record is clear that the appellant
timely filed her appeal. To dismiss this timely filed appeal because the appellant
did not respond to the timeliness order would amount to a dismissal for failure to
prosecute. We find that such a severe sanction is not justified under the
3
Press Release, U.S. Merit Systems Protection Board, Status of the U.S. Merit Systems
Protection Board During a Partial Government Shutdown (Dec. 21, 2018), available
at https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During_a_
Partial_Government_Shutdown_1580906.pdf (last visited May 10, 2024).
4
The Effects of the Partial Shutdown Ending in January 2019 , Congressional Budget
Office, https://www.cbo.gov/system/files/2019-01/54937-PartialShutdownEffects.pdf
(last visited May 10, 2024).
4
circumstances. See Burnett v. Department of the Navy, 71 M.S.P.R. 34, 37-38
(1996).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.