Corey Stoglin v. Department of Labor

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
COREY D. STOGLIN, DOCKET NUMBER
Appellant, CH-1221-19-0508-W-1
v.
DEPARTMENT OF LABOR, DATE: February 6, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Corey D. Stoglin, Minneapolis, Minnesota, pro se.
Edward V. Hartman, Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 On February 28, 2020, the administrative judge issued an initial decision in
which he found that, while he satisfied the exhaustion requirement regarding his
IRA appeal, the appellant failed to nonfrivolously allege that he made any
protected disclosures that may have contributed to a personnel action. Initial
Appeal File, Tab 13, Initial Decision (ID) at 6-11. Accordingly, the
administrative judge dismissed the appeal for lack of jurisdi ction, ID at 2, 11,
informing the parties that the initial decision would become the Board’s final
decision on April 3, 2020, unless either party filed a petition for review, ID at 11.
¶3 On April 10, 2020, the appellant filed a petition for review, 1 week late.
Petition for Review (PFR) File, Tab 1. He claimed that he was attempting to
work with an attorney who had requested documentation but that he had limited
internet access from March 26-28, 2020, because he was on mandatory telework
due to COVID-19, and also that he missed work from March 30-April 3, 2020,
due to illness. 2 Id. at 4. The Clerk of the Board informed the appellant that his
petition for review appeared to be untimely filed and instructed him to submit
evidence and argument showing that the petition for review was timely filed or
that good cause existed for the delay in filing. PFR File, Tab 2. In response, the
appellant submitted a Motion to Accept Filing as Timely Filed and/or to Ask the
Board to Waive or Set Aside the Time Limit in which he asserted that he was
severely ill from a medical condition for which he had been treated for 2 years.
PFR File, Tab 3. The appellant also submitted a memorandum from his doctor,
who stated that the appellant was under his care, that he suffered from “medical
illness” and was unable to work from March 30-April 3, 2020, and that he has
2
The appellant also asked that his case be joined with another of his cases, Stoglin v.
Department of Labor, MSPB Docket No. CH-4324-19-0114-I-1, which was pending
before the Board at the time. PFR File, Tab 1 at 4. Because the two cases involve
different causes of action, and based on our disposition of this appeal, we deny the
appellant’s request for joinder. 5 C.F.R. § 1201.36(b).
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now fully recovered. Id. at 6. The agency has responded in opposition to the
petition for review. PFR File, Tab 4.
ANALYSIS
¶4 The appellant bears the burden of proof by preponderant evidence regarding
timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition for review must be filed
within 35 days after issuance of the initial decision or, if a party shows that he
received the ID more than 5 days after it was issued, within 30 d ays of receipt. 3
Williams v. Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008);
5 C.F.R. 1201.114(e).
¶5 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Williams, 109 M.S.P.R.
237, ¶ 7; 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing
of an appeal, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. 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 diligen ce, 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 that similarly shows a causal
relationship to his inability to timely file his petition. 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).
¶6 To establish that an untimely filing was the result of an illness, the party
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
3
The appellant raises no such claim regarding receipt.
4
during that time period; and (3) explain how the illness prevented h im from
timely filing his appeal or a request for an extension of time. Lacy v. Department
of the Navy, 78 M.S.P.R. 434, 437 (1998). To establish good cause for waiver of
the Board’s filing deadline based on physical or mental illness, there is no general
incapacitation requirement; rather, the appellant is required only to explain why
his alleged illness impaired his ability to meet the Board’s filing deadline or seek
an extension of time. Id. at 437 n.*.
¶7 Here, although the appellant is proceeding pro se, the length of the delay,
1 week, is not insignificant. Gonzalez v. Department of Veterans Affairs,
111 M.S.P.R. 697, ¶ 11 (2009) (holding than an 8-day delay in filing a petition
for review is not minimal). To the extent the appellant suggests that his efforts to
secure attorney representation toward the end of the filing period were thwarted
by his limited internet access, such a claim does not constitute good cause for his
untimely filing. See Tamayo v. Office of Personnel Management , 88 M.S.P.R.
685, ¶ 7 (2001) (stating that the inability to obtain a representative does not
establish good cause for an untimely filing). The appellant bears the ultimate
responsibility for pursuing his appeal. Helmstetter v. Department of Homeland
Security, 106 M.S.P.R. 101, ¶ 13 (2007). Moreover, the appellant is responsible
for the errors of his chosen representative. Sofio v. Internal Revenue Service,
7 M.S.P.R. 667, 670 (1981).
¶8 The appellant’s assertion that he was unable to timely file his petition for
review because of illness does not satisfy the Lacy standard. First, he claims only
that he was sick from March 30 to April 3, 2020, PFR File, Tab 1, and his
medical documentation only addresses that same time period, PFR File, Tab 3
at 6. However, the filing period ran from February 28 to April 3, 2020.
Moreover, the appellant’s medical documentation is otherwise insufficient to
support his claimed inability because it fails to explain how his illness prevented
him from timely filing his petition for review or requesting an exte nsion of time
5
in which to do so. Moreover, the appellant has not explained why he did not
more promptly file with the Board after April 3.
¶9 We find, therefore, that the appellant has failed to establish good cause for
his untimely filing because he has not shown that he acted with due diligence or
that there were circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune showing a
causal relationship to his inability to timely file his petition. Moorman,
68 M.S.P.R. at 62-63.
¶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 its lack of jurisdiction over the appellant’s IRA appeal.
NOTICE OF APPEAL RIGHTS 4
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.
4
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.
6
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 Fe deral
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.
7
(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. ____ , 137 S. Ct. 1975 (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 s ection
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. 5 The court of appeals must receive your petition for
5
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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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.
10
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.