Joseph Wilbur, Jr. v. Department of Labor

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH WILBUR, JR., DOCKET NUMBER
Appellant, AT-1221-13-0881-W-2
v.
DEPARTMENT OF LABOR, DATE: September 2, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph Wilbur, Jr., Daphne, Alabama, pro se.
Charna C. Hollingsworth-Malone, Esquire, and Yasmin Kimberly Yanthis‑
Bailey, Esquire, Atlanta, Georgia, 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 failure to prosecute. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 July 11, 2013, the appellant filed an individual right of action (IRA)
appeal asserting that he experienced retaliation for whistleblowing in his former
position as an Occupational Safety and Health Administration Inspector in
Mobile, Alabama. Wilbur v. Department of Labor, MSPB Docket No. AT-1221-
13-0881-W-1, Initial Appeal File (W‑1 IAF), Tab 1 at 1, 3. The appeal was
dismissed without prejudice on March 17, 2014, at the appellant’s request.
W-1 IAF, Tab 23. The appellant refiled the appeal on July 7, 2014. MSPB
Docket No. AT-1221-13-0881-W-2, Refiled Appeal File (RAF), Tab 1.
¶3 The administrative judge scheduled a status conference for October 28,
2014. RAF, Tab 5. The appellant failed to participate in the conference, and he
did not contact the administrative judge to request an alternate date. RAF, Tab 6
at 1-2, Tab 8, Initial Decision (ID) at 2. The agency representatives told the
administrative judge that they had served the appellant with written discovery
requests, but their calls and emails about the discovery had gone unanswered.
RAF, Tab 6 at 2. On October 29, 2014, the administrative judge ordered the
appellant to provide within 7 calendar days a written explanation for his lack of
participation in the status conference. Id. The order specifically stated that the
administrative judge could impose sanctions if the appellant failed to show good
cause for his nonparticipation in the conference. Id.; see 5 C.F.R.
§ 1201.43. The order also provided the appellant with the requisite notice of the
Board’s jurisdictional standard for IRA appeals. RAF, Tab 6 at 2-6.
¶4 After the appellant did not respond, the administrative judge issued a
Second Order to Show Cause. RAF, Tab 7. The November 26, 2014 order
summarized the appellant’s failure to participate in the status conference, his
subsequent failure to give good cause for nonparticipation, and his failure to
submit a jurisdictional response. Id. The order explicitly stated that the appellant
appeared to have “opted to abandon the appeal” and gave him 10 calendar days in
which to provide the responses required by the October 29, 2014 order. Id. If he
 3
failed to provide these responses, the administrative judge explained, “his appeal
[would] be dismissed with prejudice under 5 C.F.R. § 1201.43(b) based on his
failure to prosecute it.” RAF, Tab 7. The appellant’s response was due
December 6, 2014. Id. He did not respond. On December 11, 2014, the
administrative judge issued an initial decision dismissing the appeal for failure to
prosecute. ID at 4. The initial decision became final on January 15, 2015. Id.
¶5 The appellant attempted to again refile his appeal with the regional office
on March 17, 2016, which the administrative judge forwarded to the Board as a
petition for review of the December 2014 decision. 2 Petition for Review (PFR)
File, Tab 1, Tab 2 at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The petition for review is filed late by more than 1 year and 3 months. The
Board’s regulations require a petition for review to be filed within 35 days after
the initial decision is issued; or, if a party shows that he received the initial
decision more than 5 days after issuance, within 30 days after receiving
it. 5 C.F.R. § 1201.114(e). The Board will excuse the untimely filing of a
petition for review only upon a showing of good cause for the delay. 5 C.F.R.
§ 1201.114(g). An untimely filed petition for review must be accompanied by a
motion that shows good cause for the delay in filing and an affidavit or sworn
statement that includes a specific and detailed description of the circumstances
causing the delay. Id.
¶7 Here, the Clerk of the Board acknowledged receiving the petition for review
and informed the appellant that: (1) the petition was untimely filed; (2) the
Board’s regulations require that a petition that appears to be untimely filed be
accompanied by a motion to accept the filing as timely and/or to waive the time
2
The appellant’s attempt to refile was initially docketed as Wilbur v. Department of
Labor, MSPB Docket No. AT-1221-13-0881-W-3, before it was recognized as a
Petition for Review of the earlier decision.
4
limit for good cause; (3) such a motion must be supported by an affidavit or
declaration made under penalty of perjury showing either that the petition was
timely filed or that there is good cause for the late filing; and (4) the Board may
dismiss the petition for review as untimely if the appellant did not provide a
motion with an affidavit or declaration. PFR File, Tab 2 at 2.
¶8 The appellant filed a motion for the Board to waive the filing deadline for
good cause shown. PFR File, Tab 3. He asserts that he was unable to respond to
the initial decision in a timely fashion because a backlog of mail awaited him
when he returned from the military deployment he served from between
February 3, 2015, and September 23, 2015. Id. at 4, 11-12. He asserts that the
time for filing his appeal was extended under the Servicemembers Civil Relief
Act (SCRA), 50 U.S.C. § 3936(a). PFR File, Tab 3 at 4. He also asserts that,
although he did not report for active duty until February 3, 2015, he first learned
of his upcoming deployment on November 12, 2014, and that the Board should
consider the period between November 12, 2014, and February 3, 2015, as part of
his military obligation for tolling purposes. Id. at 5. He further asserts that he
was unaware that the November 26, 2014 Second Order to Show Cause and the
December 11, 2014 Initial Decision had been issued. Id. He explains that he had
requested dismissal of the initial appeal in this case because he was awaiting
results of an investigation related to his departure from the agency, 3 implying that
he did not know that he had an active appeal in the regional office. Id. at 5-6.
His motion also includes arguments addressing the merits of the appeal. Id.
at 6-9.
¶9 The motion, however, does not include the required affidavit or sworn
statement. PFR File, Tab 3; 5 C.F.R. § 1201.114(g). Additionally, the merits of
the appeal are not before the Board. Here, the Board need only consider whether
3
The appellant resigned from the agency, but had filed a whistleblower complaint with
the Office of Special Counsel and an equal employment opportunity complaint with the
agency’s Civil Rights Center. RAF, Tab 1 at 7, Tab 4 at 4-22.
5
the appellant established good cause for the delay in filing his petition for review.
To establish good cause for waiving the Board’s filing deadline, an appellant
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). The Board will consider the length of the
delay, the reasonableness of his excuse and his showing of due diligence, 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 which 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).
¶10 The appellant is pro se, but the delay was a lengthy one. The appellant
cannot rely on the tolling provisions of the SCRA, as the initial decision was
issued 54 days before the appellant reported for military duty. The appellant has
identified no authority supporting his assertion that the tolling period would have
commenced on November 12, 2014, when he received notice that he would be
called to active duty. We were likewise unable to find any such authority. Even
if the appellant could claim relief under the SCRA, his petition for review would
have been due on October 23, 2015, as his deployment ended on September 23,
2015. RAF, Tab 3 at 1-12; see 50 U.S.C. § 3936(a); Neighoff v. Department of
Homeland Security, 122 M.S.P.R. 86, ¶¶ 6-10 (2015). He did not file the petition
for review until March 17, 2016. PFR File, Tab 1 at 1.
¶11 We likewise do not find convincing the appellant’s claim that he was
unaware he had an active case in the regional office because he had requested
dismissal of his initial IRA appeal while he awaited the results of an agency
investigation. He personally refiled the IRA appeal on July 7, 2014. RAF, Tab 1
at 1. The appellant thus failed to establish the existence of circumstances beyond
his control affecting his ability to comply with the time limits or of unavoidable
6
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition for review. We dismiss the petition for review as
untimely filed.
¶12 Even if the petition had been timely filed, we would not find that the
administrative judge abused his discretion by dismissing the appeal for failure to
prosecute. Holland v. Department of Labor, 108 M.S.P.R. 599, ¶ 9 (2008)
(holding that the Board will not reverse an administrative judge’s determination
regarding sanctions absent a showing of abuse of discretion). Although sanctions
should be imposed only when a party has failed to exercise basic due diligence in
complying with Board orders or has exhibited negligence or bad faith in its
efforts to comply, Chandler v. Department of the Navy, 87 M.S.P.R. 369, ¶ 6
(2000), the Board has found that an appellant’s repeated failure to respond to
multiple Board orders reflects a failure to exercise basic due diligence,
Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶ 6 (2007). The
appellant missed a status conference and failed to respond to two jurisdictional
orders. Even when served with an order explicitly advising him of the possibility
of dismissal, he did not provide any explanation or justification for his failure to
act. The record contains no evidence that the appellant was confused by Board
proceedings or that he wanted to continue to pursue his appeal below. As stated
above, the appellant’s refiling of his appeal on July 7, 2014, suggests that he
knew that he had an active appeal in the regional office. Dismissal of the appeal
for failure to prosecute, though extreme, serves the ends of justice. See
Heckman, 106 M.S.P.R. 210, ¶ 6.
¶13 This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition for review. The initial decision dismissing the IRA
appeal for failure to prosecute remains the final decision of the Board.
7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 4
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit.
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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time. You may choose to request review of the
Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other
court of appeals of competent jurisdiction, but not both. Once you choose to seek
review in one court of appeals, you may be precluded from seeking review in any
other court.
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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
4
In the initial decision, the administrative judge provided the appellant with mixed-case
appeal rights. Based on the disposition of this case, such review rights are not appropriate.
Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22 (2015). The proper
appeal rights are provided here.
8
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. 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, and 11. Additional information about
other 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.
If you are interested in securing pro bono representation for your 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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.