Thomas Day v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS F. DAY, DOCKET NUMBERS
Appellant, DC-1221-12-0528-W-2
DC-1221-15-0211-W-1
v.
DEPARTMENT OF HOMELAND
SECURITY, DATE: March 28, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Day, Sterling, Virginia, pro se.
Lorna J. Jerome and Edith Moore McGee, Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member 2
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Member Leavitt’s name is included in decisions on which the three -member Board
completed the voting process prior to his March 1, 2023 departure.
2
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his requests for corrective action in these joined individual right of action
(IRA) appeals. For the reasons set forth below, the appellant’s petition for review
is DISMISSED as untimely filed by 27 days without good cause shown for the
delay. 5 C.F.R. § 1201.114(e), (g).
¶2 The appellant, a Contract Specialist, filed two IRA appeals with the Board,
alleging that the agency engaged in a number of personnel actions in retaliation
for his whistleblower activity. Day v. Department of Homeland Security, MSPB
Docket No. DC-1221-15-0211-W-1, Initial Appeal File (0211 IAF), Tab 1; Day v.
Department of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1,
Initial Appeal File (0528 IAF), Tab 1. Prior to issuing an initial decision, the
administrative judge joined the appeals for adjudication. Day v. Department of
Homeland Security, MSPB Docket No. DC-1221-12-0528-W-2, Appeal File
(0528-W-2 AF), Tab 401 at 2. He issued an initial decision denying corrective
action on September 13, 2016. 0528-W-2 AF, Tab 414, Initial Decision (ID). In
his decision, the administrative judge informed the parties that the decision would
become final on October 18, 2016, unless a petition for review was filed by that
date. ID at 42. The appellant did not file a petition for review by that date and
instead submitted a pleading postmarked November 14, 2016. Id.; Day v.
Department of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-2,
Petition for Review (PFR) File, Tab 1.
¶3 The Office of the Clerk of the Board informed the appellant that it appeared
that his petition was untimely filed and afforded him the opportunity to submit a
motion to either accept the filing as timely and/or waive the time limit for good
cause. PFR File, Tab 2 at 1-2. The appellant responded by submitting an
affidavit in which he states that he did not receive the initial decision until he
accessed the e-Appeal Online repository on November 7, 2016, and that he
3
assumed that he would have received an email stating that the initial decision had
been issued. PFR File, Tab 3 at 5. He also asserts that he attempted to contact
the administrative judge on the date that he discovered that the initial decision
had been issued and left a voicemail for him. Id. at 6. The appellant challenges
the validity of the certificate of service from the initial decision in MSPB Docket
No. DC-1221-12-0528-W-2 because it did not list his email address. Id. at 6-7.
Further, he appears to argue that there was no certificate of service included in
the case file for MSPB Docket No. DC-1221-15-0211-W-1. Id. at 7. He
characterizes the aforementioned issues as significant errors in the e -Appeal
Online system that support a finding of good cause for his filing delay. Id. The
appellant also has filed a pleading that he wishes the Board to consider as his
substantive petition for review. PFR File, Tab 4.
¶4 A petition for review must be filed within 35 days after the issuance of the
initial decision or, if the petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days after the date the
petitioner received the initial decision. 5 C.F.R. § 1201.114(e). The Board will
waive the time limit only upon a showing of good cause for the delay. 5 C.F.R.
§ 1201.114(f). The appellant bears the burden of proof regarding timeliness .
Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 4 (2007).
¶5 Here, the appellant was a registered e-filer. 0528 IAF, Tab 10; see
0528-W-2 AF, Tab 412. Registration as an e-filer constitutes consent to accept
electronic service of pleadings filed by other registered e -filers and documents
issued by the Board. 5 C.F.R. § 1201.14(e). Consequently, the appellant was
deemed to have received the initial decision when it was issued on September 13,
2016. Martinez v. Broadcasting Board of Governors, 115 M.S.P.R. 46, ¶ 6
(2010); 5 C.F.R. § 1201.14(m)(2). Accordingly, his petition for review was due
35 days after the issuance of the initial decision, or by October 18, 2016.
4
¶6 The appellant mailed his pleading. The date of filing by mail is the
postmark date. 5 C.F.R. § 1201.4(l). His pleading was not postmarked until
November 14, 2016. PFR File, Tab 1. Thus, his petition for review was 27 days
late.
¶7 The Board may grant a waiver of a time limit for filing a petition for
review, in the interest of justice, after considering all of the facts and
circumstances of a particular case. Terrell v. U.S. Postal Service, 114 M.S.P.R.
38, ¶ 6 (2010). To establish good cause for the untimely filing, 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 an d
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 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).
¶8 We find that the appellant’s primary excuse that he did not receive the
initial decision is not reasonable as it is contradicted by the Board’s records
indicating that the initial decision was emailed to his email address of record.
See Terrell, 114 M.S.P.R. 38, ¶ 8. Additionally, we find that he did not act
diligently because, although he admits that he discovered on November 7, 2016 ,
that the administrative judge had issued the initial decision, he did not file a
petition for review or request an extension of time to do so until November 14,
5
2016. 3 PFR File, Tab 3 at 5. We also are not persuaded by the appellant’s
general dissatisfaction with the Board’s e-Appeal Online system. 4
¶9 We recognize that the appellant is pro se. However , we also find that the
27-day delay in this case is not minimal. See Gerdts v. Department of Labor,
111 M.S.P.R. 412, ¶ 17 (2009) (stating that a 21-day filing delay of a petition for
review is not minimal). 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 the appellant’s requests for corrective
action.
NOTICE OF APPEAL RIGHTS 5
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
3
The appellant has submitted what appears to be a 48-second outgoing call record on
November 7, 2016, from his cellular phone to the administrative judge. PFR File, Tab 3
at 10. We find that, regardless of the appellant’s attempt to contact the administrative
judge, he was still required to exercise due diligence in filing his petition for review.
4
The appellant’s assertions that the Board did not include proper certificates of service
in his appeals are not supported by the record. 0211 IAF, Tab 449; 0528-W-2 AF,
Tab 415.
5
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
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
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
7
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 befor e
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
8
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 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 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. 6 The court of appeals must receive your petition for
6
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.
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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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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.