UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES JASON MCCLAIN, DOCKET NUMBER
Appellant, PH-0752-13-0358-I-1
v.
DEPARTMENT OF DEFENSE, DATE: July 8, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James Jason McClain, Harrisburg, Pennsylvania, pro se.
Karen L. Saxton, New Cumberland, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 was removed after the agency reinstated charges against him
for: (1) Sleeping on Duty; (2) Failure to Follow Proper Call Off Procedures;
(3) Absence Without Leave (AWOL); and (4) Tardiness. See Initial Appeal File
(IAF), Tab 6 at 73-74. These charges were originally issued on February 14,
2012. Id. at 73. The appellant accepted the terms of a last-chance settlement
agreement (LCSA) on April 23, 2012, and the agency held his removal in
abeyance for 3 years. Id. at 35-36. In the LCSA, he waived Board appeal rights
for any disciplinary action taken for any misconduct committed during the term of
the agreement, as well as for the charges issued on February 14, 2012. Id.
¶3 On April 3, 2013, the agency issued a decision notice stating that the
appellant had violated the LCSA by failing to follow proper leave requesting
procedures on January 2, 2013. Id. at 73-74. He was charged with 2 hours of
AWOL. Id. at 73. The agency also alleged that he was granted 8 hours leave
without pay in lieu of sick leave under the Family Medical Leave Act for
January 25, 2013, but that, on the date of his absence, a fellow employee saw him
attending the Pennsylvania Car Show in Harrisburg, Pennsylvania. Id.
Consistent with the terms of the LCSA, the appellant was notified of these
suspected violations and given an opportunity to respond. Id. at 64-71; see id. at
36. After considering his response and the evidence, the agency summarily
removed him. Id. at 73-74. This appeal followed. IAF, Tab 1.
¶4 The appellant alleged that he did not violate the terms of the LSCA. IAF,
Tab 1 at 3. The administrative judge found that he failed to nonfrivolously allege
that he was not AWOL on January 2, 2013, and thus that he was in
noncompliance with the LSCA and had waived his right of appeal. IAF, Tab 13,
Initial Decision (ID) at 4-6. The administrative judge declined to reach the
second reason for the agency action and dismissed the appeal. ID at 6.
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DISCUSSION OF ARGUMENTS ON REVIEW
¶5 A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the petitioner shows that the initial decision was
received more than 5 days after the date of issuance, within 30 days after the date
the petitioner received the initial decision. 5 C.F.R. § 1201.114(e). The initial
decision was issued on August 28, 2013. ID at 1. It was distributed to the
appellant and his representative, and also to the agency representative by
electronic mail on August 28, 2013. IAF, Tab 13. The administrative judge
informed the appellant that the initial decision would become the Board’s final
decision on October 2, 2013, unless a party filed a petition for review or the
Board decided to reopen the case on its own motion. ID at 7. The petition for
review was postmarked March 16, 2015. Petition for Review (PFR) File, Tab 1.
Based upon a finality date of October 2, 2013, see 5 C.F.R. § 1201.114(e), the
petition for review was late-filed by 539 days.
¶6 The Board will waive its time limit only upon a showing of good cause for
the delay in filing. 5 C.F.R. § 1201.114(g). A late-filed petition for review must
be accompanied by a motion that shows good cause for the untimely filing, unless
the Board has specifically granted an extension of time or a motion for an
extension is pending. Id. The motion must be accompanied by an affidavit or
statement signed under penalty of perjury, which includes the reasons for failing
to request an extension before the filing deadline and a specific and detailed
description of the circumstances causing the late filing, accompanied by
supporting documentation or other evidence. Id.
¶7 Here, the record contains no request for an extension, and the appellant
included no affidavit or statement signed under penalty of perjury. See PFR File,
Tab 1. Although he was given an opportunity to submit such a statement and
motion, PFR File, Tab 2, he did not do so. Instead, his petition for review is a
request for the Board to “re-open” his appeal because of the specific
4
circumstances he alleges. Id. He asserts that he “made several attempts” to
contact his union representative after the appeal was filed in August 2013, and
that he only heard back from his representative in January 2014. Id. Then, he
learned that his representative “was hospitalized on and off” between August
2013 and January 2014 and that the chief union steward would be taking over the
representation. Id. When he contacted the chief steward, however, he learned
that his “case was closed, and no petition was filed by the Oct[.] 2, 2013[,] cutoff
date.” Id. He also learned on January 14, 2014, that no one had taken over his
appeal in his representative’s absence because he had not signed a letter of
representation. Id.
¶8 The untimely filing of a petition for review may be waived for good cause
shown. See 5 C.F.R. § 1201.114(g). To establish good cause for waiver, 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 if 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).
¶9 Here, the delay is a lengthy one, but the appellant is pro se at present, and
the record as to when he received the initial decision is unclear. The appellant
avers he did not receive the electronic version when it was issued because he was
not personally registered as an electronic filer. 2 PFR File, Tab 1. An appellant,
2
Board records show that the appellant’s email address was that of his union
representative.
5
however, has a personal responsibility to monitor the progress of his appeal at all
times, and not to leave the matter entirely in the hands of his representative.
White v. Department of Justice, 103 M.S.P.R. 312, ¶ 12 (2006), aff’d, 230 F.
App’x 976 (Fed. Cir. 2007); see also Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981) (an appellant is responsible for the mistakes
of his chosen representative). Even if we accept his unsworn assertions about his
representative’s health and hospitalizations between August 2013 and January
2014, the appellant has admitted learning about the initial decision in January
2014. PFR File, Tab 1. He has not accounted for the delay in filing between
January 2014 and March 2015. At the latest, his appeal would have been due by
the end of February 2014 and it was thus late-filed by more than a year. He has
not shown that he exercised due diligence under the circumstances of this appeal.
¶10 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 removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
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that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your appeal to
the 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.