Lingling Wang v. Department of Commerce

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINGLING WANG, DOCKET NUMBERS
Appellant, DC-0752-17-0510-I-1
DC-0752-17-0509-I-1
v.
DEPARTMENT OF COMMERCE, DATE: JUNE 30, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Lingling Wang, Chantilly, Virginia, pro se.
Benjamin K. Ahlstrom and William Horrigan, Alexandria, Virginia, 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, which
dismissed these joined appeals with prejudice for failure to prosecute. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On August 18, 2017, the administrative judge issued an initial decision
dismissing these joined appeals with prejudice for failure to prosecute. Initial
Appeal File (IAF), Tab 34, Initial Decision (ID) at 1. 2 The administrative judge
informed the appellant that the decision would become final on September 22,
2017, unless a petition for review was filed by that date. ID at 5. On April 2,
2020, the appellant filed a petition for review. Petition for Review (PFR) File,
Tab 1.
¶3 A petition for review must be filed within 35 days after the issuance of the
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 the
appellant received the initial decision. 5 C.F.R. § 1201.114(e). The appellant
asserts that she has “no knowledge about the initial decision.” PFR File, Tab 4
at 11. To the extent she is alleging that she never received the initial decision, we
find that, as an e-filer, she is deemed to have received the initial decision on the
date of electronic submission. IAF, Tab 1 at 2; see Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 5 (2009); 5 C.F.R. § 1201.14(m)(2).
Accordingly, the appellant’s petition for review was due on September 22, 2017,
and her submission filed April 2, 2020, is 923 days, or over 2 and a half years,
untimely. This is a significant delay.
¶4 The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. Stribling v. Department of Education, 107 M.S.P.R. 166,
¶ 7 (2007); 5 C.F.R. § 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 the case. Stribling, 107 M.S.P.R. 166, ¶ 7.
2
For ease of reference, all citations to the record in this order are to the files in Wang v.
Department of Commerce, MSPB Docket No. DC-0752-17-0510-I-1, except as
otherwise noted.
3
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 f ile her
petition. Id.¶5 The Board will find good cause for an untimely filing when a party
demonstrates that she suffered from an illness or medical condition that affected
her ability to file on time. E.g., Pirkkala v. Department of Justice, 123 M.S.P.R.
288, ¶ 19 (2016). To establish that an untimely filing was the result of an illness,
the party must (1) identify the time period during which she suffered from the
illness, (2) submit medical evidence showing that she suffered from the alleged
illness during that time period, and (3) explain how the illness prevented her from
timely filing her petition or a request for an extension of time. Id. (citing Lacy v.
Department of the Navy, 78 M.S.P.R. 434, 437 & n.* (1998)). The party need not
prove incapacitation, only that her ability to file was affected or impaired by the
medical condition. Id.¶6 The Office of the Clerk of the Board informed the appellant that her petition
appeared untimely and advised her of how to establish good cau se for a waiver of
the time limit. PFR File, Tab 3 at 2. The Office of the Clerk of the Board
additionally provided a sample motion to accept her filing as timely or to ask the
Board to waive the time limit, and informed her of how to establish good caus e
for a waiver when alleging that health or illness affected her ability to meet filing
deadlines. Id. at 7-8 & n.1. In her motion to waive the time limit for filing a
petition for review, the appellant set forth various physical and mental health
problems she has been experiencing, including insomnia, anxiety, hopelessness,
loss of energy, and concentration problems. PFR File, Tab 4 at 5. She
additionally set forth that the left side of her body has generally been disabled
4
since 2015. Id. at 6. As a result, the appellant asserts that she has had to use her
right arm, shoulder, and hand to perform tasks such as driving, lifting, cooking,
and cleaning. Id. In the record below, the appellant provided various medical
documents demonstrating examinations and treatment for chronic back pain,
analysis of spinal problems, and pain extending to the left arm. IAF, Tab 24
at 7-27, Tab 32 at 14-21, 27, 39-42. The documented examinations and treatment
all occurred prior to the September 2017 deadline to file, and the appellant did
not submit any new medical evidence with her petition for re view. IAF, Tab 24
at 7-27, Tab 32 at 14-17, 39-42. She also submitted forms from a health care
provider stating, without further explanation, that she suffered from “insomni a—
difficulty sleeping” in March 2016. IAF, Tab 32 at 15, 17, 40, 42.
¶7 The appellant has not submitted medical documentation specifically
addressing her condition during the relevant time period, i.e., between the
issuance of the initial decision and the filing of her petition for review. See
Stribling, 107 M.S.P.R. 166, ¶ 10 (noting a lack of medical evidence during the
relevant period in finding no good cause for a waiver of the time limit).
Moreover, even assuming that her conditions remained as described in her
medical evidence, the appellant has not explained how her documented conditions
prevented her from timely filing a petition or requesting an extension. The mere
references to “insomnia—difficulty sleeping” are insufficient to meet this burden.
PFR File, Tab 4 at 5; see Gonzalez v. Department of Veterans Affairs,
111 M.S.P.R. 697, ¶ 10 (2009) (finding that a physician’s office’s notes excusing
an appellant from work for stress, insomnia, and severe headaches failed to
establish that his conditions impaired his ability to file a timely petition for
review or request an extension of time to file). The appellant states that the
injury to her left side forced her to perform daily work with her right arm, such as
cleaning, driving, and cooking, but she has not explained how this injury
prevented her from filing a petition for review or motion for an extension of time
when she could still perform daily functions, albeit in a hindered capacity. PFR
5
File, Tab 4 at 6; see Pirkkala, 123 M.S.P.R. 288, ¶ 20 (finding that the appellant
failed to explain how her shoulder problems affected her ability to file a timely
removal appeal).
¶8 Although her other alleged medical issues, such as anxiety and
concentration problems, might have made it more difficult to meet the timeline,
she has provided neither medical evidence showing that she suffered from these
conditions nor corroborating evidence explaining how these alleged conditions
prevented her from timely filing her appeal or requesting an extension of time.
PFR File, Tab 4 at 5; see Stribling, 107 M.S.P.R. 166, ¶¶ 10-11; Lacy,
78 M.S.P.R. at 437 & n.*. We acknowledge her statement that, because of her
“serious medical conditions,” she has “no knowledge about the initial decision.”
PFR File, Tab 4 at 11. However, the appellant has not submitted medical or other
corroborating evidence establishing that she could not understand the filing
deadline or the method for filing a petition for review or requesting an extension
of time. Additionally, the appellant filed for disability retirement benefits and a
subsequent Board appeal of the decision by the Office of Personnel Management,
both during the relevant period. PFR File, Tab 2 at 18-26, 162-63; Wang v.
Department of Commerce, MSPB Docket No. DC-0752-20-0383-I-1, Initial
Appeal File, Tab 1 at 11-15. The appellant’s demonstrated ability to actively
participate in other proceedings during the relevant period weighs against a
finding that her medical condition prevented her from timing filing her petition
for review or a request for an extension of time. See Stribling, 107 M.S.P.R. 166,
¶ 14. As such, we find that the appellant has failed to establish good cause f or a
waiver of the time limit.
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
6
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal for failure to prosecute. 3
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 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
3
The appellant also filed a Motion to Suspend Due to Medical Inability and a Motion to
Ask for the Board’s Help in Settling the Appeal. PFR File, Tabs 7 -8. Given our
decision to dismiss the petition for review on timeliness grounds, we deny the
appellant’s remaining motions.
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
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 particula r
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, t hen you must file
8
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 th eir 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
9
(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. 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.
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
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.
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.