Edward C. Price v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD C. PRICE, DOCKET NUMBER
Appellant, SF-0432-16-0245-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 15, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL ∗
Edward C. Price, Lemoore, California, pro se.
Dawn Wilkie and Mary Allmann, San Diego, California, 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 removal appeal as untimely. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
regulation or the erroneous application of the law to the facts of the case; the
∗
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. See title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective November 9, 2015, the agency removed the appellant from his
position as a Transportation Assistant. Initial Appeal File (IAF), Tab 1 at 7. On
January 20, 2016, the appellant filed a Board appeal challenging his removal.
IAF, Tab 1. The administrative judge issued an acknowledgment order informing
the appellant that his appeal appeared to be untimely filed and directing him to
file evidence and argument to prove either that his appeal was timely filed or that
good cause existed for his untimely filing. IAF, Tab 2 at 2-5. The appellant filed
a supplemental response but did not address the timeliness issue. IAF, Tab 5.
The agency moved to dismiss the appeal as untimely filed without good cause
shown. IAF, Tab 6 at 5-6. The administrative judge issued a second order
instructing the appellant to file evidence and argument concerning the timeliness
of his appeal. IAF, Tab 7. The appellant subsequently filed a designation of
representative, IAF, Tab 20, but did not respond to the timeliness order or the
agency’s motion to dismiss.
¶3 In an initial decision, the administrative judge dismissed the appeal as
untimely filed without good cause for delay. IAF, Tab 21, Initial Decision (ID).
The administrative judge found that the appellant’s appeal was due by
3
December 9, 2015, and so his January 20, 2016 appeal was untimely filed by 42
days. ID at 3-4. The administrative judge further found that the appellant failed
to establish good cause for his untimely filing because he failed to raise any
arguments addressing his ability to timely file his appeal. ID at 5-6.
¶4 The appellant has filed a petition for review in which he appears to assert
that his appeal was untimely filed because the agency withheld documents from
him. Petition for Review (PFR) File, Tab 1 at 3. The agency has opposed the
appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s action, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). An appellant bears the burden of proof by a preponderance of
the evidence on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶6 As the administrative judge found, the record reflects that on November 9,
2015, the appellant received the agency’s decision removing him effective that
same day. ID at 3; IAF, Tab 1 at 4, 7, 13. Thus, under the Board’s regulations,
the appellant was required to file his removal appeal on or before December 9,
2015, or 30 days after the effective date of his removal. 5 C.F.R.
§ 1201.22(b)(1). The appellant did not file his removal appeal until
January 20, 2016, or 42 days after the filing deadline. IAF, Tab 1. Thus, the
administrative judge properly found that the appeal was untimely filed.
¶7 If an appellant fails to timely submit his appeal, it will be dismissed as
untimely filed absent a showing of good cause for the delay in filing. 5 C.F.R.
§ 1201.22(c). 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. Marcantel v. Department of Energy,
121 M.S.P.R. 330, ¶ 10 (2014). To determine if an appellant has shown good
4
cause, the Board will consider the length of the delay, the reasonableness of his
excuse and his showing of 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 unfavorable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his claim. 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 On review, the appellant asserts generally that the agency withheld
documents from him. PFR File, Tab 1 at 3. The Board ordinarily will not
consider an argument raised for the first time on review absent a showing that it
is based on new and material evidence not previously available despite the party’s
due diligence. See Hodges v. Office of Personnel Management, 101 M.S.P.R.
212, ¶¶ 7-9 (2006) (refusing to consider the appellant’s arguments, raised for the
first time on review, in support of her position that she had good cause for
untimely refiling her appeal) (citing Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980)). Because the appellant has provided no explanation
for his failure to raise this argument below, we need not consider it on review.
¶9 We see no evidence indicating that the appellant could not have raised this
argument before the administrative judge. As a registered e-filer, IAF, Tab 1 at 2,
the appellant is deemed to have received the administrative judge’s orders served
on him electronically on the date of electronic submission, 5 C.F.R.
§ 1201.14(m)(2). On review, the appellant does not contend that he did not
receive, and offers no explanation for his failure to respond to, either of the
administrative judge’s timeliness orders. Even if we were to consider the
appellant’s argument on review, his explanation does not support a finding of
good cause because he has not explained what documents the agency allegedly
withheld from him or how such circumstances prevented him from timely filing
his appeal.
5
¶10 Accordingly, we affirm the initial decision dismissing the appeal as
untimely filed without good cause.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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.
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
6
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.