UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELLE L. STEFANICK, DOCKET NUMBER
Appellant, DC-1221-14-0959-W-1
v.
DEPARTMENT OF STATE, DATE: July 31, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michelle L. Stefanick, Arlington, Virginia, pro se.
Anne Joyce, Esquire, and Hollin D. Luh, Washington, D.C., 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 her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the law to the facts of the case; the judge’s rulings during either the course of the
appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, and based on the
following points and authorities, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant filed a complaint with the Office of Special Counsel (OSC) in
May 2013, in which she alleged that the agency retaliated against her for making
protected disclosures. See Initial Appeal File (IAF), Tab 1 at 4, 23. On
September 19, 2013, OSC informed her that it had decided to close its
investigation into her allegations and that she had 65 days to seek corrective
action from the Board. Id. at 24-26. She initially did not file a Board appeal, but
at some point wrote again to OSC. Id. at 23. In an email sent on July 31, 2014,
OSC summarized the history of her OSC complaint in response to her
correspondence and emphasized that the September 19, 2013 letter was its final
determination on the matter. Id.
¶3 The appellant subsequently filed this IRA appeal on August 3, 2014. Id. at
1-6. In a timeliness order, the administrative judge apprised the appellant of her
burden of proving she had timely filed her IRA appeal or that equitable tolling
should apply and ordered her to file evidence and argument on the timeliness
issue. IAF, Tab 29. The appellant filed numerous responses to the timeliness
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order. 2 IAF, Tabs 31-36, 40-41, 43-51, 53-56. The administrative judge issued
an initial decision dismissing the appeal as untimely filed. IAF, Tab 58, Initial
Decision (ID) at 1, 8. Specifically, the administrative judge found that the appeal
was untimely filed by more than 8 months and that the appellant failed to
establish grounds for equitable tolling of the time limit. ID at 5-8.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tabs 13-14, to which the agency has responded in opposition, PFR File,
Tab 16. The appellant has replied to the agency’s response. 3 PFR File,
Tabs 18-21.
¶5 In her petition for review, the appellant claims that her appeal is timely
filed because “the retaliatory acts initiated against [her] has [sic] not yet
concluded, which includes deliberate violations of the Freedom of Information
and Privacy Acts.” PFR File, Tab 13 at 5. As explained by the administrative
judge, an appellant must comply with the statutory time limit for filing an IRA
appeal. ID at 4; see 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1209.5. That time limit is
based on the date OSC issued its closure letter, not the date of any alleged
retaliatory act. 5 U.S.C. § 1214(a)(3)(A); Hamley v. Department of the Interior,
122 M.S.P.R. 290, ¶ 8 (2015). Because the appellant filed her IRA appeal more
than 65 days after OSC notified her in writing of the termination of its
2
In an order, the administrative judge stated that eight of the appellant’s submissions
would not be considered because they were filed after the record on the timeliness issue
closed. IAF, Tab 57.
3
The appellant submitted two motions for leave to submit additional “material evidence
pleadings.” PFR File, Tabs 24, 26. The Clerk of the Board acknowledged both motions
and informed the appellant that only certain types of pleadings are allowed on review.
PFR File, Tabs 25, 27; see 5 C.F.R. § 1201.114(a). Because the additional pleadings
relate to the merits of her IRA appeal and not to the timeliness of the initial appeal, the
additional pleadings do not constitute material evidence. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980). Therefore, we deny the appellant’s
motions. 5 C.F.R. § 1201.114(a)(5), (k).
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investigation, we agree with the administrative judge’s finding that her IRA
appeal was untimely filed. 4
¶6 The appellant further disputes the administrative judge’s finding that she
failed to establish grounds for equitable tolling of the time limit. Specifically,
she argues that the agency’s intentional denial of access to information requested
through the Freedom of Information Act (FOIA) not only satisfies the equitable
tolling doctrine, but also violates her right to due process and constitutes fraud.
PFR File, Tab 18 at 4, 15-16. She also submits evidence of her numerous
attempts to receive information from the agency. PFR File, Tab 13 at 11-28,
Tab 14, Tab 18 at 17-37, Tabs 19-21. For the reasons cited in the initial decision,
the appellant’s difficulty in obtaining information from the agency pursuant to a
FOIA request is not an extraordinary circumstance establishing grounds for
equitable tolling of the time limit. ID at 6-7; see Heimberger v. Department of
Commerce, 121 M.S.P.R. 10, ¶ 10 (2014). Additionally, she has not shown that
the evidence submitted on review is of sufficient weight to warrant a different
outcome. See Russo, 3 M.S.P.R. at 349; 5 C.F.R. § 1201.115(d). Finally, the
appellant’s due process and fraud arguments are immaterial to the timeliness
issue and, even if proven, would not establish a basis for equitable tolling because
of her failure to diligently pursue a Board appeal based on the clear notice in
OSC’s closure letter. See Heimberger, 121 M.S.P.R. 10, ¶ 10.
¶7 The appellant further alleges that the administrative judge failed to address
her request for “an opinion and/or guidance regarding protected disclosure [sic]
and how to proceed accordingly throughout the process as a Department of
Justice (DOJ) Victim/Witness to open, on-going Federal Bureau Investigations
(FBI).” PFR File, Tab 13 at 6; see IAF, Tab 3 at 3. She also contends that the
administrative judge failed to take into consideration her status as a victim and/or
witness under the Crime Victims’ Rights Act. PFR File, Tab 13 at 10, Tab 18 at
4
The appellant has not alleged or proven that she received OSC’s written notification
more than 5 days after the date of issuance. See 5 C.F.R. § 1209.5(a)(1).
5
15-16. We do not agree that the administrative judge erred because the Board is
prohibited by statute from issuing an advisory opinion. 5 U.S.C. § 1204(h).
Further, the administrative judge did not address the appellant’s request and
status in the initial decision because they are irrelevant to whether the appeal was
timely filed or whether equitable tolling should apply. In the timeliness order,
the administrative judge clearly informed the appellant that the timeliness issue
must be resolved before any other issue raised in her appeal could be considered.
IAF, Tab 29 at 2.
¶8 For these reasons, we conclude that the appellant does not provide a reason
to disturb the administrative judge’s findings that her IRA appeal was untimely
filed and that she failed to establish that equitable tolling should apply. We
therefore find that the administrative judge properly dismissed the appeal as
untimely filed.
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.
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 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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
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court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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
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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.