Annette Davis v. Department of the Interior

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNETTE DAVIS, DOCKET NUMBER
Appellant, AT-0752-09-0860-C-2
v.
DEPARTMENT OF THE INTERIOR, DATE: January 13, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Adam J. Conti, Esquire, Atlanta, Georgia, for the appellant.
Isaiah D. Delemar, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Member Limon recused himself and
did not participate in the adjudication of this appeal.
ORDER
¶1 This case is before the Board on the agency’s petition for review of the
compliance initial decision, which granted the appellant’s petition for
enforcement of the Board’s final decision reversing her removal. For the reasons
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
set forth below, we DISMISS the agency’s petition for review as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g). As a result, we ORDER
the agency to submit satisfactory evidence of compliance regarding the proper
restoration of the appellant’s annual leave, as set forth in the compliance initial
decision.
¶2 On July 10, 2017, the administrative judge issued a compliance initial
decision in which he found that the agency had improperly removed 416 hours of
the appellant’s annual leave, which had been previously restored to her. Davis v.
Department of the Interior, MSPB Docket No. AT-0752-09-0860-C-2,
Compliance File, Tab 8, Compliance Initial Decision (CID) at 3-6. He also found
that the agency failed to establish a separate leave account for the restored hours
as required by Office of Personnel Management regulations. Id. The compliance
initial decision informed the parties that it would become the final decision of the
Board on August 14, 2017, unless a petition for revie w was filed by that date.
CID at 9.
¶3 On August 17, 2017, the agency filed a pleading styled as “Agency’s
Motion to Reverse Board’s Non-Compliance Ruling,” in which it challenged the
administrative judge’s findings in the compliance initial decision. Petition for
Review (PFR) File, Tab 1. The same day, the agency also filed a declaration
from an agency official, submitted under penalty of perjury, which appeared to
offer reasons for the untimely filing of the petition for review. PFR File, Tab 2.
The Clerk of the Board acknowledged the first pleading as the agency’s petition
for review and the second pleading as the agency’s explanation of the facts and
circumstances which it believed demonstrated good cause for the untimely filing.
PFR File, Tab 3. The appellant has responded in opposition to both of the
agency’s pleadings. PFR File, Tab 4.
¶4 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. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing, a party must show that it exercised
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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 a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of its excuse and its showing of due
diligence, whether it is proceeding pro se, and whether it has presented evidence
of the existence of circumstances beyond its control that affected its ability to
comply with the time limits or of unavoidable casualty or misfortune which
similarly shows a causal relationship to its inability to timely file its 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).
¶5 As the reason for its failure to meet the filing deadline in this case, the
agency has offered the declaration of the Comptroller of the N ational Park
Service’s Southeast Region (SER). PFR File, Tab 2. Therein he describes his
duties as including managing the SER’s Budget Office, formulating budgets, and
financial management, and he also states that he is the appellant’s second-line
supervisor. He explains that, during the “appeal process,” he traveled outside the
continental United States on a temporary work assignment, and he describes the
nature of his duties for that assignment. Id. at 5. He indicates that the mission
lasted 3 days, and he has submitted a copy of the travel voucher that authorized
his travel to Puerto Rico for the period from August 8 through August 11, 2017.
Id. at 5, 7-8. He states that, while on this assignment, he was unable to retrieve
the supporting documents from the Regional Human Resources Office and get
them to the agency representative before the due date for filing the petition for
review in this case, but he indicates that he did not inform the agency
representative that he would be out of the country and unable to retrieve the
documents before the filing deadline. Id. at 5-6. He further states that, when he
received the documents on August 15, 2017, he sent them to the agency
representative. The Comptroller maintains that his failure to get the agency
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representative’s documents was not intended to cause an undue delay or to
prejudice the appellant’s case. Id. at 6.
¶6 However, the Comptroller has not explained why he could not have secured
the necessary documents in the weeks between the beginning of the petition for
review filing period, July 10, 2017, and the date of his travel. Nor has he
explained why he failed to advise the agency representative of the possible
implications—of his need to travel outside the country during the 3-day period—
on the timeliness of the petition for review. Moreover, the agency representative
has not submitted any declaration and therefore has failed to explain why, being
aware that he did not have the documentation he believed he needed to file a
petition for review, he did not request an extension of time in which to do so
before the deadline passed. See Grant v. Department of Defense, 59 M.S.P.R.
386, 389 (1993), aff’d, 34 F.3d 1079 (Fed. Cir. 1994) (Table).
¶7 Although the length of the filing delay in this case is only 3 days, the
agency has not shown that it exercised due diligence. In addition, we note that
the agency is, and has been, represented by counsel throughout these proceedings.
Finally, the agency has not presented evidence of circumstances beyond its
control that affected its ability to comply with the filing time limits. Moorman,
68 M.S.P.R. at 62-63.
¶8 Accordingly, we dismiss the agency’s petition for review as untimely filed.
ORDER
¶9 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this Order satisfactory evidence of compliance, as set forth in the
administrative judge’s compliance initial decision of July 10, 2017. CID at 6 -7.
This evidence shall adhere to the requirements set forth in 5 C.F.R.
§ 1201.183(a)(6)(i), including submitting evidence and a narrative statement of
compliance. The agency’s submission shall demonstrate that it : (1) properly
restored the appellant’s 416 hours of erroneously forfeited annual leave to her
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annual leave balance, placing it in the separate account reserved for hours
restored pursuant to 5 C.F.R. § 550.805(g); (2) transferred all of the appellant’s
annual leave hours restored pursuant to 5 C.F.R. § 550.805(g), whether
previously or in compliance with the administrative judge’s order, into a special
leave account, taking care not to conflate annual leave hours restored pursuant to
5 C.F.R. § 550.805(g) with annual leave hours restored pursuant to 5 C.F.R.
§ 630.306; and (3) allowed the appellant to schedule and use her annual leave
hours restored pursuant to 5 C.F.R. § 550.805(g), and/or this Order, by the end of
the leave year in progress 4 years after the date on which the separate account is
established. We ORDER the appellant to cooperate in good faith in the agency’s
efforts, and to provide all necessary information the agency requests to help it
carry out the Board’s Order. The agency must serve all parties with copies of its
submission.
¶10 The Board will assign a new docket number to this matter, MSPB Docket
No. AT-0752-09-0860-X-1. All subsequent filings should refer to the new docket
number set forth above and should be faxed to (202) 653 -7130 or mailed to the
following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e-Appeal site
(https://e-appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201.14.
¶11 The appellant may respond to the agency’s eviden ce of compliance within
20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that she is satisfied with the agency’s actions
and dismiss the petition for enforcement.
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¶12 The agency is reminded that if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representati ve may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183(c)(1). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶13 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.