Robert Quesada v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT QUESADA, DOCKET NUMBER
Appellant, DA-1221-14-0497-W-2
v.
DEPARTMENT OF HOMELAND DATE: July 18, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Quesada, El Paso, Texas, pro se.
Michelle Morton, El Paso, Texas, 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 individual right of action (IRA) appeal as untimely refiled. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On June 20, 2014, the appellant filed an IRA appeal with the Board.
Quesada v. Department of Homeland Security, MSPB Docket No. DA-1221-14-
0497-W-1, Initial Appeal File (IAF), Tab 1. On March 28, 2016, the
administrative judge issued an initial decision dismissing the appeal without
prejudice at the appellant’s request. IAF, Tab 26 , Initial Decision (ID). The
refiling deadline was set for May 27, 2016. ID at 3. The refiling deadline passed
without further communication from the appellant.
¶3 On August 11, 2017, the Board’s regional office received a letter from the
appellant postmarked August 9, 2017, which it interpreted as a request to refile
the appeal. Quesada v. Department of Homeland Security, MSPB Docket
No. DA-1221-14-0497-W-2, Refiled Appeal File (RAF), Tabs 1-2. The appeal
was reassigned to another administrative judge, who notified the appellant that
his refiling appeared to be untimely, apprised him of his burden on the timeliness
issue, and ordered him to respond. 2 RAF, Tab 3. The appellant failed to respond
to the order, and on September 6, 2017, the administrative judge issued an initial
decision dismissing the refiled appeal as untimely without good cause shown for
the delay. RAF, Tab 6, Refiled Initial Decision (RID).
¶4 On December 21, 2017, the Office of the Clerk of the Board received a
letter from the appellant postmarked December 18, 2017. Quesada v. Department
of Homeland Security, MSPB Docket No. DA-1221-14-0497-W-2, Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board contacted the
appellant and determined that the appellant intended the letter to be a petition for
review of the initial decision. PFR File, Tab 2 at 1. The Office of the Clerk of
the Board notified the appellant that his petition for review appeared to be
untimely, warned him that his petition might be dismissed on that basis, and
advised him of the legal standards and his burden of proof on the timeliness issue.
3
Id. at 2. The appellant filed a motion to waive the filing deadline, arguing that
his petition was untimely because he was overseas, had trouble accessing his
email, and was medically incapacitated. PFR File, Tab 3. The agency has filed a
response. 3 PFR File, Tab 4.
ANALYSIS
¶5 A petition for review must be filed within 35 days after the initial decision
is issued, or, if the appellant shows that he received the initial decision more than
5 days after it was issued, within 30 days after the date of receipt. Williams v.
Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 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 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 he exercised due diligence or ordinary prudence under the particular
circumstances of his 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
2
The administrative judge originally assigned to this appeal had since retired.
3
After the close of the record on review, the appellant filed a series of motions making
various allegations of misconduct and asking the Board to take action against several
Government employees. PFR File Tab 5. Not only are these motions not permitted
under the Board’s regulations, see 5 C.F.R. § 1201.114(a), they are irrelevant to the
timeliness issue and are therefore immaterial to the outcome of the appeal. The
appellant’s motions are DENIED.
4
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 In this case, it appears to be undisputed that the petition for review was
untimely filed. The appellant is a registered e-filer, and the initial decision was
served on him electronically on September 6, 2017—the date it was issued. RID;
RAF, Tab 7; see 5 C.F.R. § 1201.4(i)-(n). Therefore, the deadline for filing the
petition for review was October 11, 2017. See 5 C.F.R. § 1201.114(e) (35-day
deadline for filing a petition for review). The December 18, 2017 petition for
review was untimely by 73 days—a very significant delay. See Summerset v.
Department of the Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (explaining that a filing
delay of 33 days is significant.).
¶7 The appellant gives several explanations for the filing delay, including that
that he had no email access because he was overseas and his email account had
been hacked. PFR File, Tab 3 at 1. We find that this explanation does not
establish good cause. First of all, the appellant does not give the dates of his
overseas travel. We therefore lack sufficient information to determine whether
his travels might have accounted for some, any, or all of his filing delay. Cf.
Miller v. Department of Homeland Security, 110 M.S.P.R. 258, ¶ 18 (2008)
(finding that appellant failed to show good cause for his untimely filing when,
among other things, he did not give the dates of his alleged hospitalization).
Second, the appellant does not explain where he traveled to that he was unable to
access his email. Internet and email services are generally available overseas,
and we find insufficient information to conclude that the appellant’s travels left
him unexpectedly incommunicado for more than 73 days . As for the appellant’s
allegation that his email account was hacked, although such an event might
disrupt his email access for a time, there is no evidence to show that he informed
the Board of this issue in a timely matter. Cf. Walker v. Department of the Air
Force, 109 M.S.P.R. 261, ¶ 7 (2008) (indicating that the appellant’s failure to
notify the administrative judge of a change in her email address did not constitute
5
excusable neglect related to her untimely petition for review). The appellant
asserts that the administrative judge originally assigned to this appeal was aware
that his email had been hacked and that he was overseas. 4 PFR File, Tab 3 at 1.
However, there is no documentary evidence in the recor d to support the
appellant’s assertion, and in any event, that administrative judge retired in
January 2017. Nonetheless, accepting as true this assertion, the appellant had
more than enough time to straighten out the issues with his email before the
petition for review filing deadline 8 months later. The appellant has not
explained how his alleged email access problems prior to the refiling of his
appeal affected his ability to timely file his petition for review.
¶8 The appellant also argues that he suffers from migraine headaches that
impair his ability to participate in normal activities such as work and jury duty.
Id. at 1, 3-4. However, as the Office of the Clerk of the Board informed the
appellant, to establish that an untimely filing was the result of an illness, he must:
(1) identify the time period during which he suffered from the illness; (2) submit
medical evidence showing that he suffered from the alleged illness during that
time period; and (3) explain how the illness prevented him from timely filing his
petition or a request for an extension of time. PFR File, Tab 2 at 8 n.1; see Lacy
v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). The appellant’s
assertion that he suffers from migraine headaches, without any medical evidence
to show that he suffered from this condition during the relevant time period, is
insufficient to show that his headaches could account for the entirety of the
73-day filing delay at issue. See Gonzalez v. Department of Veterans Affairs,
111 M.S.P.R. 697 (2009); see also Perrot v. Department of the Navy, 84 M.S.P.R.
4The appellant asserts that he was never informed that his appeal had been reassigned
to a different administrative judge. PFR File, Tab 3 at 1. We disagree. The appellant
was informed of the reassignment in the August 15, 2017 acknowledgment order for his
refiled appeal. RAF, Tab 2.
6
468, ¶ 6 (1999) (stating that medical evidence proffered to show that an untimely
filing was the result of illness must address the entire period of the delay ).
¶9 Considering all of the evidence on the timeliness issue, we find that
although he is proceeding pro se, the length of the delay is significant , and the
appellant has not established good cause for it. 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 timeliness of
the appellant’s refiled appeal. RID.
NOTICE OF APPEAL RIGHTS 5
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.
5
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
(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
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
8
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:
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:
9
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 a ny court of appeals of
competent jurisdiction. 6 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) 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 you wish to challenge the Board’s rulings on your
whistleblower claims only, excluding all other issues, then you may file a petition
for judicial review either with the U.S. Court of Appeals for the Federal Circuit
6
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
or any court of appeals of competent jurisdiction. 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
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.