Aurora Montano v. Department of the Navy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AURORA J. MONTANO, DOCKET NUMBER
Appellant, SF-315H-20-0490-I-1
v.
DEPARTMENT OF THE NAVY, DATE: November 1, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Aurora J. Montano , San Diego, California, pro se.
Mary Allmann and Michael L. Mason , San Diego, California,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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untimely filed without good cause shown for the delay. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
¶2 The appellant was appointed to a GS-6 Medical Supply Technical position
effective March 4, 2019. Initial Appeal File (IAF), Tab 11 at 16. She had no
prior Federal service. Id. at 19. Her appointment was subject to the completion
of a 2-year initial probationary period beginning on March 4, 2019. Id. at 16.
The agency terminated the appellant effective May 15, 2020, based on her failure
to demonstrate acceptable performance and conduct. Id. at 12-14.
¶3 The appellant filed a timely appeal of her probationary termination. IAF,
Tab 1 at 1. After providing jurisdictional notice and affording the parties the
opportunity to file evidence and argument, the administrative judge dismissed the
appeal for lack of jurisdiction in a July 28, 2020 initial decision, finding that the
evidence showed the agency terminated the appellant for post-appointment
reasons during her probationary period. IAF, Tab 12, Initial Decision (ID) at 1,
6-7. The initial decision specifically stated that the deadline to file a petition for
review was September 1, 2020, and provided information on how to file a petition
for review. ID at 7-8.
¶4 The appellant filed her petition for review on September 11, 2020. Petition
for Review (PFR) File, Tab 1. In an acknowledgment letter, the Office of the
Clerk of the Board notified the appellant that, because she filed her petition for
review after September 1, 2020, i.e., over 35 days following the issuance of the
July 28, 2020 initial decision, it was untimely filed. PFR File, Tab 2 at 1. The
Clerk’s Office informed the appellant that the Board may dismiss her petition for
review as untimely filed unless she submitted a motion showing that her petition
for review was timely filed or that good cause existed for the filing delay. Id.
at 2. The Clerk’s Office enclosed a “Motion to Accept Filing as Timely and/or to
Ask the Board to Waive or Set Aside the Time Limit.” Id. at 7-9. The letter from
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the Clerk’s Office afforded the appellant until October 3, 2020, to file that
motion. Id. at 2.
¶5 The agency has filed a response to the appellant’s petition for review,
arguing that it was untimely filed and, alternatively, that it failed to meet the
Board’s criteria for review. PFR File, Tab 3. By letter signed by the appellant
and postmarked on October 13, 2020, ten days after the deadline established by
the Clerk’s Office, the appellant filed a motion on the timeliness of her petition
for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 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 this 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 she 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 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
petition. Id. (citing 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)).
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¶7 The appellant asserts in her motion to waive the time limit that she had
“received a respond back from HR not from the mspb [sic].” PFR File, Tab 4
at 1. She claims that “I know for that I never get reviewed from mspb [sic].” Id.The appellant also addresses the merits of her termination. Id.¶8 To the extent the appellant may be claiming that she did not receive the
initial decision, we nevertheless deem her to have received the initial decision on
July 28, 2020. The appellant elected to register as an e-filer soon after filing her
appeal. IAF, Tab 2 at 2. The statement that the appellant filed and the Board’s
e-filer regulations both provide that, as a registered e-filer, she agreed to accept
service of documents through electronic service and was required to monitor her
case activity at e-Appeal to ensure she received all case related documents. Id.;
see 5 C.F.R. § 1201.14(e)(1), (j)(3) (2020). The Board’s regulations also provide
that Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission. 5 C.F.R. § 1201.14(m)(2) (2020).
When a statute or regulation “deems” something to have been done, the event is
considered to have occurred whether or not it actually did. Rivera, 111 M.S.P.R.
581, ¶ 5 (citing Lima v. Department of the Air Force, 101 M.S.P.R. 64, ¶ 5
(2006)). The certificate of service for the initial decision indicates that it was
served on the appellant by electronic mail on July 28, 2020. IAF, Tab 13. There
is no indication that the email notification the appellant received regarding the
initial decision was received after the July 28, 2020 date of service. As noted
above, the appellant did not file her petition for review until September 11, 2020.
PFR File, Tab 1. Thus, we find that her petition for review was untimely filed by
10 days.
¶9 Although the 10-day delay in this case is not especially lengthy, it is not
minimal. See Cabarloc v. Department of Veterans Affairs, 112 M.S.P.R. 453,
¶ 10 (2009). In any event, the Board has consistently denied a waiver of its
regulatory filing deadline when a good reason for the delay is not shown, even
when the delay is minimal and the appellant is pro se. E.g., id. The appellant has
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provided no other explanation for the period of delay in this case. The appellant
includes with her petition for review a copy of her performance plan, progress
review, and appraisal for the period covering April 1, 2019, to March 31, 2020,
which reflects a June 1, 2020 effective date for the appellant’s rating of record.
Id. at 4-11. She does not say when she received this document, but, as set forth
above, it dates from before the July 20, 2020 close of the record below on the
jurisdictional issue. Id.; IAF, Tab 10 at 1. Thus, the document is irrelevant to the
timeliness of the appellant’s petition for review or the question of whether she
has demonstrated good cause for its untimely filing.
¶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 appellant’s termination during her probationary period.
NOTICE OF APPEAL RIGHTS 2
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.
2
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.
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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:
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
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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.
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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. 3 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).
3
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.
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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.
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.