Christopher Charney v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER CHARNEY, DOCKET NUMBER
Appellant, SF-0752-15-0388-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Saku E. Ethir, Riverside, California, for the appellant.
Richard D. Ruppe, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only when: the 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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. See 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, and based on the following points and authorities, 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
¶2 The appellant filed this Board appeal alleging that the agency refused to
allow him to return to work after he was on leave and, as such, the agency
imposed a forced suspension upon him. Initial Appeal File (IAF), Tab 1. He
indicated on the appeal form that he had been suspended for more than 14 days.
Id. The administrative judge issued an acknowledgment order informing the
appellant that it was not clear from his appeal exactly which agency actions he
was alleging gave rise to a constructive suspension. IAF, Tab 2 at 2. She also
informed the appellant of the standard for establishing jurisdiction over a
constructive suspension. Id. at 2-3. The appellant did not respond to the
acknowledgment order. The agency moved to dismiss the appeal because the
appellant failed to respond to the administrative judge’s acknowledgment order
and because he did not make a nonfrivolous allegation of jurisdiction. IAF, Tab 4
at 6-7. The appellant again did not respond.
¶3 The administrative judge issued an initial decision dismissing the appeal for
lack of jurisdiction. IAF, Tab 5, Initial Decision (ID). Specifically, she found
that the appellant failed to show that he was absent for more than 14 days,
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regardless of whether the absence was involuntary and at the agency’s insistence,
and that he failed to make sufficient allegations to bring the appeal within the
Board’s jurisdiction. ID at 3.
¶4 The appellant filed a timely petition for review in which he belatedly
responds to the acknowledgment order. Petition for Review File, Tab 1. His
representative states that he was unable to file a response below because of his
lack of familiarity with the Board’s electronic appeal system (e-Appeal). Id.
at 3-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 We agree with the administrative judge that the appellant failed to establish
jurisdiction over his appeal. See ID at 3. An appealable constructive suspension
claim arises in a variety of situations; however, all constructive suspension claims
are premised on the proposition that an absence that appears to be voluntary is
actually not voluntary. Rosario-Fabregas v. Department of the
Army, 122 M.S.P.R. 468, ¶ 8 (2015). To demonstrate that the absence was, in
part, not voluntary, and is an actionable constructive suspension, an appellant
must show that: (1) he lacked a meaningful choice in the matter; and (2) it was
the agency’s wrongful actions that deprived him of that choice. Romero v. U.S.
Postal Service, 121 M.S.P.R. 606, ¶ 8 (2014). Assuming that the jurisdictional
requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two
elements is sufficient to establish Board jurisdiction. Rosario-Fabregas, 122
M.S.P.R. 468, ¶ 8. The appellant’s assertions in his initial appeal are minimal,
IAF, Tab 1, and he did not respond to the administrative judge’s acknowledgment
order. Based on the bare allegations contained in the initial appeal, we find that
the administrative judge properly dismissed the constructive suspension appeal
for lack of jurisdiction. See Romero 121 M.S.P.R. 606, ¶¶ 8-9.
¶6 Furthermore, the appellant’s representative’s lack of familiarity with
e-Appeal does not provide a basis for disturbing the initial decision. The
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appellant’s appeal was handled in the Western Regional Office, which does not
require mandatory e-filing for attorneys. Cf. 5 C.F.R. § 1201.14(p) (requiring
mandatory e-filing for attorneys and agencies when filing in the Washington
Regional Office and Denver Field Office). Accordingly, the appellant or his
representative could have opted out of e-filer registration at any time if either was
confused about the system. See 5 C.F.R. § 1201.14(e)(4). Additionally, to the
extent that the appellant relied solely on his representative to submit evidence and
arguments, he is nonetheless responsible for the errors of his chosen
representative. 2 See Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670
(1981).
¶7 The administrative judge issued the acknowledgment order on March 9,
2015, and allowed the appellant 10 days to furnish a response on jurisdiction.
IAF, Tab 2. However, a review of activity on the Board’s e-filing system reveals
that the appellant’s representative did not attempt to log on to the system until
April 2, 2015. Subsequent to the representative’s April 2, 2015 logon attempt,
neither he nor the appellant submitted a response until filing the petition for
review on April 23, 2015. We therefore find that the appellant failed to exercise
due diligence or ordinary prudence in attempting to respond to the
acknowledgment order. See Alley v. U.S. Postal Service, 100 M.S.P.R. 283,
¶¶ 2, 8 (2005) (finding that the administrative judge properly dismissed the
appeal for lack of jurisdiction where the appellant did not respond to the
acknowledgment order or the agency’s motion to dismiss).
¶8 Finally, regarding the assertions in the appellant’s belated response to the
acknowledgment order, the Board will not consider arguments that are raised for
the first time on review absent a showing that they are based upon new and
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An exception to this rule may lie when an appellant establishes that his diligent efforts
to prosecute an appeal were thwarted, without his knowledge, by his attorney’s
deceptions, negligence, or malfeasance; however, there is no such evidence here. See
Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 13, aff’d, 404 F. App’x
466 (Fed. Cir. 2010).
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material evidence not previously available despite the appellant’s due diligence.
See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The
appellant has made no such showing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
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at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.