Cindy Dabner v. Environmental Protection Agency

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CINDY M. DABNER, DOCKET NUMBERS
Appellant, CH-0752-18-0572-I-1
CH-1221-19-0175-W-1
v.
ENVIRONMENTAL PROTECTION
AGENCY, DATE: May 1, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Chungsoo J. Lee, Feasterville, Pennsylvania, for the appellant.
Debra K. Smith, Esquire, and Leora Tyree, Esquire, Chicago, Illinois, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision affirming
her removal and a petition for review of the initial decision dismissing her
individual right of action (IRA) appeal for lack of jurisdiction. We JOIN 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appeals under 5 C.F.R. § 1201.36(b) because doing so will expedite processing
without adversely affecting the interests of the parties. For the reasons set forth
below, the appellant’s petitions for review are DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 On September 10, 2018, the appellant filed an appeal of her removal with
the Board’s Central Regional Office. Dabner v. Environmental Protection
Agency, MSPB Docket No. CH-0752-18-0572-I-1, Appeal File (I-1 AF), Tab 1.
On January 29, 2019, during the pendency of her removal appeal, the appellant
filed an IRA appeal with the Central Regional Office. Dabner v. Environmental
Protection Agency, MSPB Docket No. CH-1221-19-0175-W-1, Appeal File
(W-1 AF), Tab 1. The appellant registered as an e-filer in both appeals. I-1 AF,
Tab 1 at 2; W-1 AF, Tab 1 at 2.
¶3 After the records closed, on May 13, 2019, the administrative judge issued
initial decisions in both appeals. I-1 AF, Tab 70, Initial Decision (I-1 ID);
W-1 AF, Tab 29, Initial Decision (W-1 ID). She affirmed the agency’s removal
action on the merits, I-1 ID at 1, 71, and she dismissed the IRA appeal for lack of
jurisdiction, W-1 ID at 1-2, 25. The initial decisions notified the appellant of her
appeal rights, including her right to file a petition for review with the Board.
I-1 ID at 71-79; W-1 ID at 26-33. Each initial decision also notified the appellant
that, unless she received the decision more than 5 days after it was issued, the
deadline for filing a petition for review would be June 17, 2019. I-1 ID at 71;
W-1 ID at 26. The initial decisions were served electronically on both the
appellant and her representative the day they were issued. I-1 AF, Tab 71;
W-1 AF, Tab 30.
¶4 On June 18, 2019, at 12:57 a.m. Eastern Time, the appellant filed a petition
for review of the initial decision in the removal appeal. Dabner v. Environmental
Protection Agency, MSPB Docket No. CH-0752-18-0572-I-1, Petition for Review
3
File (I-1 PFR File), Tab 1 at 2, Tab 2 at 5. Later on June 18, 2019, at 12:59 a.m.
Eastern Time, the appellant filed a petition for review of the initial decision in the
IRA appeal. Dabner v. Environmental Protection Agency, MSPB Docket
No. CH-1221-19-0175-W-1, Petition for Review File (W-1 PFR File), Tab 1.
¶5 The Clerk of the Board notified the appellant that her petitions appeared to
be untimely filed and directed her to show good cause for the delay. I -1 PFR
File, Tab 1 at 2; W-1 PFR File, Tab 1 at 3. The appellant merely responded
“Eastern standard time v. Central” and “East v central time” respectively. 2
I-1 PFR File, Tab 1 at 2; W-1 PFR File, Tab 1 at 4. The Clerk of the Board then
notified the appellant of the applicable regulation, which states that “[a]ll
pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the
timeliness of a pleading will be determined based on the time zone from which
the pleading was submitted.” I-1 PFR File, Tab 1 at 2; 5 C.F.R. § 1201.14(m).
The appellant subsequently explained, in the context of her removal appeal, that:
[T]he original PFR was submitted from Philadelphia on June 18,
2019 at 12:57 AM, EST; thus the time stamp is one hour ahead of the
Central Time, where the Board’s Central Regional Office is located
and to which this appeal belongs. The original PFR was time
stamped on the Eastern Standard Time which is one hour ahead of
the Central Standard Time, which is controlling.
I-1 PFR File, Tab 2 at 5. The agency has responded to the petitions for review,
opposing them on both timeliness and substantive grounds. I -1 PFR File, Tab 4;
W-1 PFR File, Tab 3.
ANALYSIS
¶6 A petition for review must be filed within 35 days after the initial decision
is issued or, if the appellant shows that she received the initial decision more than
5 days after it was issued, within 30 days after the date of receipt. Williams v.
2
We take official notice that Daylight Saving Time rather than Standard Time was in
effect on the dates in question. See 5 C.F.R. § 1201.64.
4
Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R.
§ 1201.114(e).
¶7 In this case, we find the petitions for review were untimely filed. The
appellant is a registered e-filer, and the initial decisions were served on her and
her representative electronically on May 13, 2019—the date that they were
issued. I-1 AF, Tab 1 at 2, Tab 71; W-1 AF, Tab 1 at 2, Tab 30; see 5 C.F.R.
§ 1201.4(i)-(n). Therefore, the filing deadline was June 17, 2019. See 5 C.F.R.
§ 1201.114(e) (setting forth a 35-day deadline for filing a petition for review).
As indicated by the time stamps, the appellant filed her petitions for review on
June 18, 2019. I-1 PFR File, Tab 1 at 2, Tab 2 at 5; W-1 PFR File, Tab 1; see
5 C.F.R. § 1201.4(l) (“The date of filing by e-filing is the date of electronic
submission.”). Under the Board’s regulations, the time stamp might not be
controlling if the petitions were filed from outside the Eastern time zone.
5 C.F.R. § 1201.14(m). However, the petitions for review in this case were filed
from Philadelphia, Pennsylvania, which is within the Eastern time zone. I -1 PFR
File, Tab 2 at 5; see 5 C.F.R. § 1201.64. Although the appeals originated outside
the Eastern time zone at the Board’s Central Regional Office in Chicago, Illinois,
this fact is immaterial under the Board’s regulations. 3 Because the petitions for
review were filed after midnight on June 18, 2018, based on the location from
which they were submitted, we find that they were both untimely by
approximately 1 hour.
¶8 The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the filing delay. Lawson v. Department of Homeland
Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R. §§ 1201.12, 1201.114(g). To
establish good cause for an untimely filing, a party must show that she exercised
due diligence or ordinary prudence under the particular circumstances of her case.
3
Even if the location of the office receiving the filing were material, a petition for
review of an initial decision is filed with the Clerk of the Board, located in the Eastern
time zone at the Board’s Washington, D.C. Headquarters. 5 C.F.R. § 1201.114(d).
5
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 her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
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).
¶9 In this case, the length of the filing delay was minimal, approximately
1 hour in each case. See Gaetos v. Department of Veterans Affairs, 121 M.S.P.R.
201, ¶ 6 (2014) (finding a 3½-hour filing delay to be minimal). However, the
Board has consistently denied a waiver of its filing deadline in cases where the
delay is minimal and a good reason for the delay is not shown. Id. The apparent
cause of the delay was that the appellant’s experienced non -attorney
representative misunderstood the Board’s regulations. However, a
representative’s miscalculation of the filing deadline generally does not constitute
good cause for a filing delay. Day v. Department of Housing and Urban
Development, 50 M.S.P.R. 680, 682 n.2 (1991), aff’d, 975 F.2d 870 (Fed. Cir.
1992) (Table). The regulation at issue in 5 C.F.R. § 1201.14(m) is clear on its
face, and the appellant is responsible for her representative’s failure to understand
it. See McBurnett v. Department of the Army, 37 M.S.P.R. 395, 397 (1988); cf.
Walls v. Merit Systems Protection Board, 29 F.3d 1578, 1581-84 (Fed. Cir. 1994)
(finding good cause to excuse a 2-day filing delay that was caused by the pro se
appellant’s reasonable misunderstanding of ambiguous filing instructions).
¶10 Accordingly, we dismiss the petitions for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petitions for review. The initial decisions remain the final decisions of the
Board regarding IRA jurisdiction and the removal.
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 ap plicable 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 revie w 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 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
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
8
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 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 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. 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.