Larry Dow v. General Services Administration

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY M. DOW, DOCKET NUMBER
Appellant, SF-3443-02-0159-C-4
v.
GENERAL SERVICES DATE: March 29, 2022
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Larry M. Dow, Buffalo, New York, pro se.
Marcia L. Smart, Esquire, Washington, D.C., for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enforcement in this Veterans Employment
Opportunities Act of 1998 (VEOA) appeal. For the reasons set forth below, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s compliance petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 In 2000, the appellant, a preference-eligible veteran, applied but was not
selected for a certain position with the agency. Dow v. General Services
Administration, MSPB Docket No. SF-3443-02-0159-I-9, Initial Decision (ID)
at 3 (Mar. 23, 2007). He appealed his nonselection under VEOA. Id. The
administrative judge determined that corrective action was warranted and issued
an initial decision ordering the agency to reconstruct the hiring process for the
position. ID at 6-7. After the initial decision became the final decision of the
Board, Dow v. General Services Administration, MSPB Docket No. SF-3443-02-
0159-I-9, Final Order at 2 (Sept. 11, 2007), the appellant commenced a series of
compliance matters, Dow v. General Services Administration, 117 M.S.P.R. 616,
¶¶ 3-9 (2012) (detailing the procedural history and substantive claims raised in
each compliance matter). Ultimately, the Boar d found that the agency was not in
compliance with the remedial orders the Board entered in those matters and
issued another order directing compliance. Id., ¶¶ 8-9, 13-14, 19-20.
¶3 Arguing that the agency did not fully comply with that latest order, the
appellant filed another petition for enforcement. Dow v. General Services
Administration, MSPB Docket No. SF-3443-02-0159-C-4, Compliance File (CF),
Tab 1. On June 28, 2013, the administrative judge issued a compliance initial
decision finding the agency in compliance. CF, Tab 15, Compliance Initial
Decision (CID). He notified the parties that the decision would become final on
August 2, 2013, unless a petition for review was filed by that date. CID at 8 .
¶4 On September 9, 2016, the appellant filed a request to reopen this
compliance appeal with the Board’s Western Regional Office, which forwarded it
to the Office of the Clerk of the Board (Office of the Clerk). Compliance Petition
for Review (CPFR) File, Tab 1 at 1-2. The Office of the Clerk construed the
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appellant’s submission as a petition for review of the June 28, 2013 compliance
initial decision. CPFR File, Tab 1 at 1, Tab 2 at 1. The Office of the Clerk
notified the appellant that his compliance petition was untimely filed and that,
pursuant to 5 C.F.R. § 1201.114(g), a petition for review that appears to be
untimely filed must be accompanied by a motion to accept the filing as timely or
to waive the time limits. CPFR File, Tab 2 at 1‑2. The Office of the Clerk,
therefore, invited the appellant to file such a motion and informed him that it
should be filed by October 21, 2016. Id. at 2. The appellant, however, has not
filed any such motion. The agency has responded to the com pliance petition for
review. CPFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Although the appellant titled his submission as a request to reopen, the
Office of the Clerk properly treated it as a petition for review. PFR File, Tab 1 at
2; Valdez v. Office of Personnel Management, 103 M.S.P.R. 88, ¶ 4 (2006)
(providing that the Board treats a request to reopen an initial decisi on that became
a final decision when neither party petitioned for review as an untimely petition
for review). To be timely, a petition for review must be filed within 35 days of
the date of the initial decision’s issuance or, if the decision was received more
than 5 days after the date of issuance, within 30 days after receipt. 5 C.F.R.
§ 1201.114(e). Since the appellant has not alleged that the compliance initial
decision at issue was received more than 5 days after the date of issuance, his
petition for review had to be filed by August 2, 2013. CID at 9. Because he filed
it in September 2016, CPFR File, Tab 1 at 1, it is untimely by more than 3 years.
¶6 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(g). To establish good
cause, a party must show that he exercised due diligence or ordinary prudence
under the circumstances of his case. See Gaetos v. Department of Veterans
Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). The appellant has not provided any
4
explanation for his delay. Therefore, we dismiss his compliance petition for
review as untimely filed.
¶7 This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the compliance petition for review. The June 28, 2013
compliance initial decision remains the final decision of the Board regarding the
appellant’s petition for enforcement in this VEOA appeal .
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.
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
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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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
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
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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 regula r 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
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(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).
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.
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 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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.