Eddie Russell v. Department of Veterans Affairs

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDDIE C. RUSSELL, DOCKET NUMBER
Appellant, PH-1221-16-0301-W-2
v.
DEPARTMENT OF VETERANS DATE: June 23, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Eddie C. Russell, Mt. Laurel, New Jersey, pro se.
Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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, whic h
denied his request for corrective action. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The appellant, a Certified Registered Nurse Anesthetist, filed an individual
right of action appeal alleging that the agency terminated him during his
probationary period at the Veterans Affairs Medical Center in Philadelphia,
Pennsylvania, in retaliation for his whistleblowing disclosures. Initial Appeal
File (IAF), Tab 1. In an initial decision, the administrative judge found that the
Board had jurisdiction over the appeal but denied the appellant’s request for
corrective action, finding that the appellant failed to establish that his disclosures
were protected under 5 U.S.C. § 2302(b)(8). IAF, Tab 22, Initial Decision (ID)
at 7-9. The administrative judge informed the appellant that the initial decision
would become final on November 16, 2017, unless a petition for review was filed
by that date. ID at 14.
¶3 The appellant filed a petition for review on November 17, 2017. Petition
for Review (PFR) File, Tab 1. In his petition, the appellant states that he
attempted to file a pleading on November 16, 2017, but was unable to “ due to a
computer glitch” in the Board’s e-Appeal system. Id. at 3. The Clerk of the
Board informed the appellant that his petition was untimely filed because it was
not postmarked or received by the Board on or before November 16, 2017. PFR
File, Tab 2. The Clerk afforded the appellant the opportunity to file a motion to
(1) accept the filing as timely, and/or (2) to waive the time limit for good cause
shown. Id. The appellant did not respond to the Clerk’s notice. The agency has
not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review must be filed within 35 days of the issuance of an
initial decision or, if the appellant shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days after the date th e
appellant received the initial decision. 5 C.F.R. § 1201.114(e). The appellant has
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the burden of proof regarding timeliness. See Hempel v. U.S. Postal Service,
100 M.S.P.R. 691, ¶ 4 (2006).
¶5 The Board may grant or deny the waiver of a time limit for filing a petition,
in the interest of justice, after considering all the facts and circumstances of a
particular case. Lewis v. Department of the Navy, 65 M.S.P.R. 28, 31 (1994). 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.
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 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).
¶6 The appellant has not alleged that he received the initial decision more than
5 days after it was issued. Thus, the appellant’s petition for review, filed 36 days
after the issuance of the October 12, 2017 initial decision, is untimely by 1 day.
Although the Office of the Clerk afforded the appellant notice that his petition for
review was untimely filed and provided him with an opportunity to show good
cause for the delay, the appellant failed to respond to the Clerk’s notice. Under
these circumstances, the Board has declined to find good cause f or a waiver of the
filing time limit when, as here, the initial decision clearly notified the appellant
of the correct time limit for filing a petition for review. See, e.g., Smith v.
Department of the Army, 105 M.S.P.R. 433, ¶ 6 (2007) (declining to find good
cause for a 1-day filing delay when the appellant failed to respond to the Clerk’s
timeliness notice and the initial decision notified the appellant of the time limit
4
for filing a petition for review); Valdez v. Office of Personnel Management,
103 M.S.P.R. 88, ¶ 7 (2006) (finding that the appellant failed to show goo d cause
for a filing delay when his petition for review was not accompanied by a motion
to waive the time limit and either an affidavit or sworn statement showin g good
cause for his untimely filing, and the initial decision notified the appellant of the
correct time limit for filing a petition for review). While the appellant is pro se,
his failure to respond to the Clerk’s notice does not indicate that he acted with
due diligence. Smith, 105 M.S.P.R. 433, ¶ 6.
¶7 Further, the appellant did not allege facts in his petition for review to
otherwise support a finding of good cause for its untimeliness. The Board has
found that the unavailability of its e-Appeal system can establish good cause for
an untimely filing, especially when the party files its pleading within a short time
after the e-Appeal system becomes available and the other party is unable to
demonstrate that it was prejudiced by the delay. See Boykin v. U.S. Postal
Service, 104 M.S.P.R. 460, ¶¶ 5-7 (2007). However, contrary to the appellant’s
assertion, we can find no instance of e-Appeal system downtime or unusual
system errors during the 24 hours of November 16, 2017. Moreover, the Board’s
e-Appeal logs do not show that the appellant accessed e-Appeal on November 16,
2017. Rather, it appears that the appellant accessed e-Appeal and created his
petition for review on November 17, 2017.
¶8 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 denial of corrective action.
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NOTICE OF APPEAL RIGHTS 2
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 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:
2
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
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. 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
7
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).
8
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed 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. 3 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
3
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.
9
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.