Trisha S Huntley v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRISHA SHAYNE HUNTLEY, DOCKET NUMBER
Appellant, NY-844E-21-0105-I-1
v.
OFFICE OF PERSONNEL DATE: October 25, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Trisha Shayne Huntley , Fulton, New York, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the Office of Personnel Management (OPM)
reconsideration decision as untimely filed with no good cause shown. Generally,
we grant petitions such as this one only in the following circumstances: the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
On July 17, 2020, OPM issued a reconsideration decision affirming its
initial decision that the appellant failed to establish eligibility for disability
retirement benefits under the Federal Employees’ Retirement System. Initial
Appeal File (IAF), Tab 5 at 15-19. The appellant signed for and received OPM’s
reconsideration decision sent via certified mail on July 23, 2020. Id. at 20. The
decision specifically informed the appellant that she could file an appeal with the
Board within 30 calendar days after her receipt of the decision. Id. at 19.
The appellant filed a Board appeal challenging OPM’s reconsideration
decision on May 26, 2021. IAF, Tab 1. The administrative judge informed the
appellant that her appeal appeared untimely filed and informed her of how to
establish that she timely filed a Board appeal or show good cause for the delay in
filing. IAF, Tab 3 at 1-4. The appellant did not respond to this order.
The administrative judge subsequently issued an initial decision dismissing
the appeal as untimely filed without good cause shown. IAF, Tab 6, Initial
3
Decision (ID) at 1-2. Specifically, the administrative judge found that the appeal
was filed roughly 9 months after the filing deadline, and the appellant failed to
explain why her appeal was filed late. ID at 4. The administrative judge
additionally considered the evidence suggesting that the appellant’s attorney may
have neglected to follow up on the matter, but she ultimately found that the
appellant was responsible for her attorney’s failures. Id.The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tab 1, Tab 3. The appellant argues that her
attorney was negligent in handling her case and asserts that he was subsequently
suspended from the practice of law for, among other things, neglecting client
matters. PFR File, Tab 1 at 3-4, 8; IAF, Tab 5 at 8, 10-14. She asserts that her
then-attorney did not inform her that an appeal was never filed until after the
deadline to file had passed and claims that the matter was out of her control. PFR
File, Tab 1 at 3-4. She attaches various documents on review purporting to show
that her prior attorney was suspended from practicing law for 1 year beginning
December 23, 2020, and that, in January 2021, she sought new representation to
ascertain the status of her case with OPM after discovering that no appeal was
filed. Id. at 6-9.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge found that the appellant’s Board appeal was
untimely filed by roughly 9 months. ID at 4. The parties do not challenge this
finding on review, and we see no reason to disturb it. See 5 C.F.R. § 1201.22(b)
(1) (setting forth the deadline to file an appeal of an agency’s decision).
The Board may waive its regulatory filing time limit for good cause shown.
Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014); 5 C.F.R.
§ 1201.22(c). To establish good cause for the untimely filing of an appeal, a
party must show that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Marcantel, 121 M.S.P.R. 330, ¶ 10. To
4
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
appeal. Id. The Board generally holds that, when, as here, an appellant fails to
follow OPM’s instructions, it does not constitute good cause for any ensuing
delay. Maggard v. Office of Personnel Management, 102 M.S.P.R. 75,
¶ 9 (2006).
The appellant argues that her attorney’s negligence led to her untimely
filing and thus the matter was out of her control. 2 PFR File, Tab 1 at 4-5. The
Board has repeatedly held that an appellant is responsible for the action or
inaction of her chosen representative and that delays caused by a representative
will not constitute good cause to excuse a filing delay. Strong v. Department of
the Navy, 86 M.S.P.R. 243, ¶ 7 (2000). The Board has recognized a limited
exception to this rule for cases when an appellant proves that she actively
monitored the progress of her appeal but that her diligent efforts to prosecute her
case were thwarted by the deception and negligence of her representative. Id.;
see Dunbar v. Department of the Navy, 43 M.S.P.R. 640, 643-45 (1990).
However, the Board has found that, even when an appellant’s representative
misleads her as to the status of a filing, the appellant has a personal duty to
2
In support of her arguments, the appellant attaches new evidence and argument for the
first time on review. PFR File, Tab 1 at 4-9. The Board generally will not consider an
argument raised for the first time in a petition for review absent a showing that it is
based on new and material evidence not previously available despite the party’s due
diligence. Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016); 5 C.F.R.
§ 1201.115(d). Indeed, the Board will not consider evidence submitted for the first time
on review when it previously was available but a party elected to not submit it to the
administrative judge. Fox v. U.S. Postal Service, 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The
appellant’s new evidence here predates the filing of her appeal and thus is not new.
PFR File, Tab 1 at 6-9. Nonetheless, even considering the new evidence and argument
on review, the appellant has failed to establish good cause for her untimely appeal.
5
monitor the progress of her appeal at all times and not leave the matter entirely to
her attorney. Miller v. Department of Homeland Security, 110 M.S.P.R. 258,
¶ 12 (2008).
According to the appellant, she did not learn that her prior attorney failed
to file an appeal of OPM’s reconsideration decision until after the deadline to file
had passed. PFR File, Tab 1 at 3. On or about January 4, 2021, her then-attorney
informed her that he had been suspended from practicing law and thus could no
longer represent her. Id. at 6. Shortly thereafter, the appellant, through a new
attorney, contacted OPM to inquire about the status of her case. IAF, Tab 5 at 8.
Therein, the appellant asserted that her last communication from OPM was the
acknowledgment of receipt of her request for reconsideration and that she was
unaware of any reconsideration decision. Id. However, the appellant personally
signed for receipt of OPM’s reconsideration decision via certified mail on
July 23, 2020. Id. at 20. Even if she did not read the decision and merely
forwarded it to her prior attorney, the record does not reflect that she took any
further steps to monitor the progress of her case for several months following her
receipt of OPM’s reconsideration decision. Compare Strong, 86 M.S.P.R. 243,
¶ 11 (finding no good cause when the appellant only contacted his attorney once
before the filing deadline and did not inquire about the status and progress of his
appeal), with Sullivan v. Office of Personnel Management, 88 M.S.P.R. 499, ¶ 9
(2001) (finding that the appellant established good cause when he repeatedly
contacted his attorney by both facsimile and telephone, and even physically drove
to the attorney’s office, in attempts to inquire about the progress of the appeal).
Moreover, the appellant does not assert that her prior attorney actively misled her
into believing that an appeal had been filed. See Sullivan, 88 M.S.P.R. 499, ¶ 9
(finding that, in addition to the appellant’s diligent efforts to monitor his appeal,
he was misled and erroneously reassured by his attorney that the appeal would be
timely filed); Dunbar, 43 M.S.P.R. at 644 (finding that the appellant’s attorney’s
misleading information thwarted his otherwise diligent efforts to file a timely
6
appeal). On the contrary, the appellant here took no steps to monitor her appeal
from the July 2020 receipt of OPM’s reconsideration decision to the January 2021
notice that her attorney had been suspended.
Accordingly, we find that the appellant has not made a diligent effort to
monitor the progress of her appeal, and she has not established sufficient grounds
to overcome the rule that she is responsible for the mistakes of her chosen
representative. Strong, 86 M.S.P.R. 243, ¶ 11. Despite her pro se status at the
time of filing her Board appeal, the appellant’s roughly 9-month delay in filing is
significant. See Johnson v. U.S. Postal Service, 98 M.S.P.R. 695, ¶ 8 (2005)
(finding no good cause for an 8-month delay in filing despite the appellant’s pro
se status). Thus, we find that the appellant has failed to establish good cause for
the delay in filing.
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
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.
7
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:
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
8
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
9
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
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.
10
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.
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.