Garry Gaston v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARRY GASTON, DOCKET NUMBER
Appellant, DC-3330-18-0052-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 12, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Garry Gaston, Arlington, Virginia, pro se.
Jessica A. Neff, Washington, D.C., 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 his Veterans Employment Opportunities Act of 1998 (VEOA) appeal
for lack of jurisdiction. For the reasons set forth below, the appellant’s petition
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant delivered his petition for review to a commercial delivery
service on January 10, 2018, and it was received by the Board on January 11,
2018. Petition for Review (PFR) File, Tab 1 at 1, 13; see 5 C.F.R. § 1201.4(l)
(providing that the date of filing by commercial delivery is the date the document
was delivered to the commercial delivery service). Included with his petition for
review, the appellant attached a one-page printout of a partially completed
request for an extension of time to file a petition for review. Id. at 2. In the
extension request, the appellant stated that he was registered as an e -filer, but that
an email notification announcing that the initial decision was issued was the only
notification he received and that he did not receive notifications for any of the
other orders issued below. Id. at 2-3. The appellant also stated that on
December 24, 2017, he requested to extend the time to file his petition for review
until January 10, 2018, and that a decision on the extension request “is still
pending at MSPB.” Id. at 3.
¶3 In a January 12, 2018 acknowledgement letter, the Office of the Clerk of the
Board notified the appellant that his petition for review was untimely filed and
instructed him to file a motion requesting that the Board accept his petition as
timely, or as untimely filed with good cause for the delay. PFR File, Tab 2 at 2.
The letter noted that prior to the appellant’s January 10, 2018 filing, the Board
did not receive a request for an extension of time to file a petition for review from
him, and further, that the Board’s e-Appeal Online logs showed that, although the
appellant started a pleading in e-Appeal Online on December 24, 2017, the
pleading was never actually submitted. Id. Consequently, the letter instructed
the appellant to provide additional explanation for his untimeliness and attached a
copy of a motion to accept a filing as timely or to waive the time limits for him to
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complete. Id. at 1-2, 7-8. In the agency’s response to the petition for review, it
requested that the Board deny the petition as untimely filed without good cause
shown for the delay. PFR File, Tab 3 at 4-5. The appellant has not filed a reply
to the agency’s response and has not filed a motion to accept his untimely petition
for review or to waive the time limits.
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows he received the initial decision more than 5 days after it was issued, within
30 days of his receipt of the decision. 5 C.F.R. § 1201.114(e). The Board will
waive the filing deadline for a petition for review only upon a showing of good
cause for the untimely filing. Palermo v. Department of the Navy, 120 M.S.P.R.
694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing 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 a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and the party’s 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
that similarly shows a causal relationship to his inability to timely file his
petition. Id.¶5 Because the December 25, 2017 finality date of the initial decision was a
Federal holiday, the appellant’s petition for review would have been due on the
following day, December 26, 2017. 5 C.F.R. § 1201.23; see Initial Appeal File,
Tab 8, Initial Decision at 5. Therefore, the appellant’s January 10, 2018 petition
for review was filed 15 days after the filing deadline. The Board has regularly
held that a 15-day delay is not minimal. See Wright v. Department of the
Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is not
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minimal); Scott v. Social Security Administration, 110 M.S.P.R. 92, ¶¶ 8, 10
(2008) (finding no good cause for an unexplained 11-day delay); Allen v. Office
of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse
a pro se appellant’s unexplained 14-day delay in filing a petition for review);
Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (noting
that a 13-day delay in filing is not minimal). Additionally, despite being afforded
the opportunity to do so, the appellant has not offered any explanation for his
delay in filing.
¶6 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 appellant’s request for corrective action under VEOA .
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.
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 th e notice, the
Board cannot advise which option is most appropriate in any matter.
5
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:
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
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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
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:
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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
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. 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).
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.
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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
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.