James Silva v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. SILVA, DOCKET NUMBER
Appellant, NY-0752-17-0209-I-1
v.
DEPARTMENT OF VETERANS DATE: February 6, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan V. Edmunds , Esquire, and Brittany D. Honeycutt , Esquire, Ponte
Verde Beach, Florida, for the appellant.
Jane Yoon , Brooklyn, New York, for the agency.
Steven A. Snyder , Northport, New York, for the agency.
BEFORE
Cathy A. Harris , Vice Chairman
Raymond A. Limon , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. For the reasons set forth
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 2 5 C.F.R. § 1201.114(e), (g).
The petition for review was filed 113 days after the filing deadline. Initial
Appeal File, Tab 24, Initial Decision at 4; Petition for Review (PFR) File, Tab 1.
In his motion to waive the deadline, the appellant asserts that he was suffering
from specific health issues; however, he has offered no medical evidence or other
corroborating evidence in support of these health issues. PFR File, Tab 3; see
Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 & n.* (1998).
Additionally, the 113-day filing delay is significant. See Crook v. U.S. Postal
Service, 108 M.S.P.R. 553, ¶ 6 (finding a 1-month filing delay significant), aff’d
per curium, 301 F. App’x 982 (Fed. Cir. 2008). As such, the appellant has not
shown that he exercised due diligence or ordinary prudence under the particular
circumstances of the case and thus has not shown good cause for the delay in
filing. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
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 removal appeal.
2
On February 21, 2020, the appellant filed a motion to reopen the record, in which he
alleged that he previously had ineffective representation and was unable to adequately
prosecute his appeal pro se but has now secured new representation and will be able to
present his case. Petition for Review (PFR) File, Tab 8. The appellant has not
demonstrated that he has new and material evidence or legal argument that was not
readily available before the record closed, or how any such evidence is material to his
appeal. See 5 C.F.R. § 1201.114(a)(5), (k). We therefore DENY the appellant’s
motion. In light of this denial, we find it unnecessary to consider the agency’s untimely
response to the appellant’s motion. PFR File, Tab 12.
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.
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
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
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.
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.
CERTIFICATE OF SERVICE
I certify that the attached Document(s) was (were) sent as
indicated this day to each of the following:
Appellant
U.S. Mail James Silva
120 Riddle Street
Brentwood, New York 11717
Agency Representative
U.S. Mail Steven Snyder
79 Middleville Road
Building 9, Room 220
Northport, New York 11768
Agency Representative
Electronic Service Jane Yoon
Served on email address registered with MSPB
Private Attorney
U.S. Mail Alan Edmunds
The Edmunds Law Firm
824 N. A1A Hwy, Suite 302
Ponte Vedra Beach, Florida 32082
Private Attorney
U.S. Mail Brittany Honeycutt
The Edmunds Law Firm
822 N. Hwy A1A, Suite 310
Ponte Vedra Beach, Florida 32082
02/06/2024
(Date) Tawanda Williams
Paralegal Specialist