Anthony Coney v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY A. CONEY, DOCKET NUMBER
Appellant, DA-0432-16-0220-I-1
v.
DEPARTMENT OF VETERANS DATE: May 5, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Anthony A. Coney, Harker Heights, Texas, pro se.
Patrick A. Keen, Shreveport, Louisiana, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
dismissed his appeal for lack of jurisdiction. 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).
BACKGROUND
¶2 The appellant filed a Board appeal challenging the agency’s decision to
remove him from his position, effective January 22, 2016. Initial Appeal File
(IAF), Tab 1. After holding a jurisdictional hearing, the administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction because
she found that, prior to filing his Board appeal, the appellant had elected to
challenge his removal via the negotiated grievance procedure. IAF, Tab 28,
Initial Decision (ID). The appellant filed a petition for review of the initial
decision, which the Board received on December 29, 2016. Petition for Review
(PFR) File, Tab 1. In a December 29, 2016 acknowledgement letter, the Office of
the Clerk of the Board informed the appellant that his petition for review
appeared to be untimely and afforded him the opportunity to file a motion to
accept the filing as timely and/or waive the time limit for good cause. PFR File,
Tab 2. In response, the appellant filed a motion to waive the time limit in which
he asserted that the initial decision was not available for viewing and he was
experiencing “medically incapacitating episodes.” PFR File, Tab 5 at 5. 3 The
agency responded to the appellant’s petition, arguing that it should be dismissed
as untimely filed without good cause shown, or alternatively, for failing to meet
the standards for obtaining review. PFR File, Tab 4.
3
We have not considered the appellant’s additional pleading filed on February 1, 2017,
because it was not filed by the January 13, 2017 deadline. PFR File, Tabs 2, 6.
Regardless, even if we did consider such evidence, it would not change the outcome.
3
¶3 A petition for review must be filed within 35 days after the date of 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
appellant asserts that the initial decision was “not available for viewing” and
submitted evidence that on or about December 26, 2016, he requested technical
support from the Board because he could not access the initial decision via
e-Appeal. PFR File, Tab 5 at 5, 7-8. According to the appellant, he received a
copy of the decision on December 28, 2016. Id. at 7. However, the record
reflects that the initial decision in this matter was transmitted via e -Appeal on
October 28, 2016. IAF, Tab 29. There is no indication that the email notification
the appellant received regarding the initial decision was received after the
October 28, 2016 date of service. Additionally, the Board’s e-Appeal logs reflect
that the appellant logged on to access the Board’s e-Appeal Repository on
October 28, 2016, as well as on numerous other dates between October 28 and
November 28, 2016. If there was a problem with the appellant’s e-Appeal access,
it should have been identified and resolved within the 35-day time period for
filing a petition for review. The appellant has not explained why he did not act
diligently to request assistance viewing the initial decision but rather waited
2 months to do so.
¶4 Regardless, as a registered e-filer, the appellant consented to receive all
documents issued by the Board in electronic form and to monitor case activity via
e-Appeal to ensure that he received all case-related documents. IAF, Tab 6; see
5 C.F.R. § 1201.14(e)(1), (j)(3). Further, Board documents served electronically
on registered e-filers are deemed received on the date of electronic submission.
5 C.F.R. § 1201.14(m)(2); see Palermo v. Department of the Navy, 120 M.S.P.R.
694, ¶ 3 (2014). When a law or regulation “deems” something to have been done,
the event is considered to have occurred whether or not it actually did. See, e.g.,
Martinez v. Broadcasting Board of Governors, 115 M.S.P.R. 46, ¶ 6 (2010);
4
Terrell v. U.S. Postal Service, 114 M.S.P.R. 38, ¶ 8 (2010); Rivera v. Social
Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009). Thus, we find that the
appellant is deemed to have received the initial decision on October 28, 2016 , and
his December 29, 2016 petition for review was untimely filed by almost 1 month
after the December 2, 2016 filing deadline. ID at 9; PFR File, Tab 1.
¶5 The Board will waive the time limit upon a party’s showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114(f); see Palermo, 120 M.S.P.R. 694,
¶ 4. To establish good cause for an untimely filing, a party must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether an appellant
has shown good cause, 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. Id. If the appellant asserts
that there was good cause for his delay because a medical condition affected or
impaired his ability to file a timely appeal, then he must identify the time period
during which he suffered from an illness; submit medical evidence s howing that
he suffered from the illness during that time period; and explain how the illness
prevented him from timely filing the appeal. Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998).
¶6 In his motion to waive the filing deadline for good cause shown dated
January 12, 2017, the appellant asserts that he was in bed incapacitated with back
issues, could not function, and had medically incapacitating episodes 28-30 days
out of the past 60 days. PFR File, Tab 5 at 5-6. As support, he submitted an
application for Department of Veterans Affairs disability benefits that appears to
be signed by his doctor on January 9, 2017, which indicates that he was diagnosed
with lumbar radiculopathy in 2016 and suffers from low back pain . Id. at 9-19.
5
The application further indicates that the appellant suffered incapacitating
episodes at least 2 weeks but less than 4 weeks over the past 1 2 months. Id.
at 16. It is unclear from the record which dates the appellant contends that he
was incapacitated. Nonetheless, the appellant does not allege that he was
incapacitated during the entire filing period, and he has not explained why he
could not have filed his petition for review or an extension request on the
remaining days on which he was not incapacitated. See, e.g., Miller v.
Department of the Army, 112 M.S.P.R. 689, ¶ 15 (2009) (finding that the
appellant failed to establish good cause for her untimely petition for review when
she provided evidence that she was examined at a hospital, recommended 4 days
of bed rest, and out of work for a few days during the filing period but failed to
explain her illness or how it prevented her from filing a timely petition for
review); McDonald v. U.S. Postal Service, 109 M.S.P.R. 100, ¶ 7 (2008) (finding
that the appellant failed to establish good cause for his filing delay because his
evidence did not explain how his condition prevented him from timely fi ling or
requesting an extension for the entire period of the delay) ; Jerusalem v.
Department of the Air Force, 107 M.S.P.R. 660, ¶ 5 (stating that the proffered
medical evidence must address the entire period of the delay), aff’d, 280 F. App’x
973 (Fed. Cir. 2008). Additionally, although the appellant is pro se, the Board
has held that a delay of 1 month is significant. See Crook v. U.S. Postal Service,
108 M.S.P.R. 553, ¶ 6, aff’d, 301 F. App’x 982 (Fed. Cir. 2008). After
considering the appellant’s evidence, we find that it does not support a finding
that he was medically prevented from timely filing his petition for review or from
requesting an extension of time. See Lacy, 78 M.S.P.R. at 437.
¶7 Accordingly, we dismiss the petition for review as un timely 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 removal appeal.
6
NOTICE OF APPEAL RIGHTS 4
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 rev iew
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:
4
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.
7
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 partic ular
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. 420 (2017). If you have a representative in this case,
and your representative receives this decision before 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
8
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 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
9
disposition of allegations of a prohibited personnel practice describe d 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. 5 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.
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
5
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.
10
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.