Martin Akerman v. Office of Special Counsel ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARTIN AKERMAN, DOCKET NUMBER
Appellant, DC-3443-22-0296-I-1
v.
OFFICE OF SPECIAL COUNSEL, DATE: May 29, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Martin Akerman , Arlington, Virginia, pro se.
Amy Beckett , Esquire, and Hnin Khaing , Esquire, Washington, D.C., 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 his appeal with prejudice at his request. For the reasons set forth
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).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 March 13, 2022, the appellant filed an appeal with the Board against the
Office of Special Counsel (OSC), asserting that OSC had engaged in “neglect of
duty-malfeasance in office” and challenging OSC’s processing of his OSC
complaint. Initial Appeal File (IAF), Tab 1 at 3. The administrative judge issued
a jurisdictional order, notifying the appellant that the Board may not have
jurisdiction over his appeal, setting forth the applicable legal standard, and
affording him the opportunity to produce evidence or argument establishing
jurisdiction over his appeal. IAF, Tab 3. Before the appellant responded to the
jurisdictional order, he filed a request to dismiss the appeal with prejudice,
explaining that he wanted “to remove any burden . . . from an already busy OSC
staff and [himself].” IAF, Tab 8 at 3. He then reiterated his request to dismiss
his appeal with prejudice. Id.Subsequently, the administrative judge issued an April 21, 2022 initial
decision dismissing the appeal with prejudice. IAF, Tab 10, Initial Decision (ID).
The initial decision notified the appellant of the deadline to file a petition for
review, i.e., May 26, 2022, and included explicit instructions on how to file a
petition for review. ID at 2-5. Nearly a year later, on May 23, 2023, the
2
Pursuant to the Board’s Delegations Manual at § 2.3.5.1, the Office of the Clerk of the
Board has delegated authority to grant a petitioner’s request to withdraw his petition for
review. Chairman Cathy A. Harris, Vice Chairman Raymond A. Limon, and former
Member Tristan L. Leavitt issued a policy effective June 28, 2022, stating that the Clerk
may exercise the delegated authority to grant a withdrawal of a petition for review when
requested by the petitioner if there was no apparent untimeliness of the petition and if
no other party objects to the withdrawal. On July 19, 2023, the appellant filed a request
to withdraw his petition for review, citing the June 28, 2022 policy. Petition for
Review (PFR) File, Tab 9 at 3, Tab 10 at 3. The then-Acting Clerk of the Board
advised the appellant that the Office of the Clerk of the Board was unable to grant his
request because, as noted in its June 8, 2023 acknowledgement letter, his petition for
review appeared to be untimely filed. PFR File, Tab 11 at 1. The appellant responded,
reiterating his request to withdraw his petition for review, referencing the June 28, 2022
policy, and asserting that his petition for review was timely in consideration of the
Board’s restored quorum. PFR File, Tab 12 at 3. Because we find that the appellant’s
petition for review was untimely filed without good cause shown, we deny the
appellant’s request to withdraw his petition for review.
3
appellant filed a petition for review, requesting that the Board reopen his appeal
based on new evidence, attaching a May 3, 2023 letter from OSC correcting the
file number included in correspondence sent to the appellant 1 year prior.
Petition for Review (PFR) File, Tab 1 at 3-4. The then-Acting Clerk of the Board
(Acting Clerk) issued a letter requesting that the appellant confirm whether
he intended to file a petition for review of the initial decision. PFR File, Tab 2.
The appellant responded, stating that his intention was to introduce new evidence
so that the Board would reopen the record and reconsider the appeal pursuant to
5 C.F.R. § 1201.118, and attaching email correspondence with OSC regarding the
typographical error. PFR File, Tab 3 at 4-5. 3
Thereafter, the Acting Clerk issued a letter acknowledging the appellant’s
filing as a petition for review, notifying him that his petition for review appeared
to be untimely filed, and explaining that the Board’s regulations require that
an untimely petition for review be accompanied by a motion to accept the filing
as timely and/or to waive the time limit for good cause. PFR File, Tab 5 at 1-2.
The appellant timely filed a motion to accept the petition for review as timely,
repeating that he was filing new evidence so that the Board would reopen the
appeal pursuant to 5 C.F.R. § 1201.118. PFR File, Tab 6 at 4. He asserted that
the May 3, 2023 letter from OSC correcting the file number had significant
repercussions because, among other things, it did not allow OSC to represent him
and impaired his ability to demonstrate that he had exhausted his administrative
remedies in a case that is now pending in the U.S. Court of Appeals for the Fourth
Circuit. Id. at 5-6. The agency responded in opposition to the appellant’s
petition for review and motion to accept the petition for review as timely,
PFR File, Tab 7, and the appellant replied to the agency’s response, PFR File,
Tab 8. 4
3
The appellant also provided email correspondence with his former employing agency
that he apparently included with his email to OSC. PFR File, Tab 3 at 6-12.
4
On May 22, 2024, the appellant filed a pleading, “Motion for Recusal of Mr. Henry J.
Kerner in Pending MSPB Cases relating to OSC,” requesting that Mr. Kerner recuse
4
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive a petition for review time limit only upon a
showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing of a petition, a party must show that
he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Rivera v. Social Security Administration,
111 M.S.P.R. 581, ¶ 4 (2009) (citing 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 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. Rivera, 111 M.S.P.R. 581, ¶ 4. The appellant bears the
burden of proof with regard to timeliness, which he must establish by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(B); McPherson v. Department
of the Treasury, 104 M.S.P.R. 547, ¶ 4 (2007) (stating that the appellant bears the
burden of proof with regards to timeliness, which he must establish by
preponderant evidence).
Here, the deadline for filing a petition for review was May 26, 2022, and
the appellant filed his petition for review on May 23, 2023, almost 1 year late.
ID at 2; PFR File, Tab 1. The appellant has not alleged that he did not receive the
initial decision, or that he received it more than 5 days after it was issued.
himself from this matter and several of the appellant’s other cases pending before the
Board, PFR File, Tab 14; however, Mr. Kerner has not been sworn in as a member of
the Board as of the date of this decision.
5
Furthermore, the appellant has failed to show good cause for this untimely filing.
Notwithstanding the appellant’s pro se status, his nearly 1-year delay in filing
was significant. Scali v. Office of Personnel Management, 106 M.S.P.R. 409,
¶¶ 6, 8 (2007) (finding that 1 year was a significant filing delay); Duncan v. U.S.
Postal Service, 96 M.S.P.R. 448, ¶¶ 5, 7 (2004) (finding that, even in light of the
appellant’s pro se status, an approximately 1-year filing delay was significant).
Furthermore, the appellant has failed to offer a persuasive excuse, show that
he acted with diligence, or set forth circumstances beyond his control that
affected his ability to comply with the filing limit. PFR File, Tab 1 at 3, Tab 6
at 4-9.
Although the appellant did not assert in a written narrative that a medical
condition prevented him from timely filing his petition for review, he attached a
medical report to his motion to accept his petition for review as timely filed. 5
PFR File, Tab 6 at 10-13. To establish good cause for untimely filing based on
illness, an appellant must: (1) identify the time period during which he suffered
from the illness; (2) submit medical evidence showing that he suffered from the
alleged illness during that time period; and (3) explain how the illness prevented
him from timely filing his petition for review. Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998). Although the appellant’s medical evidence
establishes that he suffers from medical conditions, neither the report, nor the
appellant, has explained how such conditions prevented him from timely filing
his petition for review. PFR File, Tab 6 at 10-13. Indeed, any claim of
incapacitation due to illness is further undermined by the fact that the appellant
5
The appellant also attached a series of communications with an artificial intelligence
system which assisted him in drafting his pleading, and a report from Lexis listing
decisions from various venues citing Board regulations, including 5 C.F.R. § 1201.118.
PFR File, Tab 6 at 10-38. The appellant has not explained the relevancy of these
documents, and they provide no basis for disturbing the initial decision. Russo v.
Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision).
6
was able to file multiple petitions for review during this same time frame in his
other pending appeals before the Board, including MSPB Docket Nos. DC-1221-
22-0257-W-1, DC-1221-22-0445-W-1, DC-0752-0376-I-1, and DC-1221-22-
0459-W-1. 6 Thus, we find that the appellant’s evidence does not demonstrate that
his medical conditions were severe enough to have prevented him from timely
filing a petition for review.
Finally, we find no basis to grant the appellant’s request for the Board to
reopen and reconsider this appeal pursuant to 5 C.F.R. § 1201.118. PFR File,
Tab 1 at 3, Tab 6 at 4-9. The Board has the authority to reopen and reconsider
appeals in which it has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B);
5 C.F.R. § 1201.118. In deciding whether to reopen a closed appeal, the Board
will balance the desirability of finality against the public interest in reaching the
right result and will exercise its authority to reopen only in unusual or
extraordinary circumstances. Nohr v. U.S. Postal Service, 112 M.S.P.R. 220, ¶ 10
(2009). We discern no such unusual or extraordinary circumstances here, as this
new evidence merely establishes that OSC made a clerical error. PFR File, Tab 1
at 4. Additionally, a request to reopen must be filed within a reasonable period of
time, measured in weeks. Nohr, 112 M.S.P.R. 220, ¶ 10. Here, the appellant
filed his reopening request almost 1 year after the initial decision became final.
PFR File, Tab 1; ID at 2. Moreover, the appellant’s petition for review is
untimely for the reasons set forth above, and the Board will not normally reopen
an appeal to cure an untimely petition for review. Nohr, 112 M.S.P.R. 220, ¶ 10.
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 dismissal of the appeal with prejudice.
6
The petitions for review filed by the appellant in the identified cases have been
addressed or will be addressed in separate decisions.
7
NOTICE OF APPEAL RIGHTS 7
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:
7
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. 8 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.
8
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.