UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY S. SCHNELL, DOCKET NUMBERS
Appellant, CH-1221-12-0770-W-3
CH-0752-13-0056-I-3
v.
DEPARTMENT OF THE ARMY,
Agency. DATE: July 13, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gary S. Schnell, Sparta, Wisconsin, pro se.
Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of the two initial decisions, both
of which dismissed his appeals as untimely filed. Generally, we grant petitions
such as these only when: the initial decision contains erroneous findings of
material fact; the initial decisions are based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the facts of the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
cases; the administrative judge’s rulings during either the course of the appeals or
the initial decisions 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 these appeals, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petitions for review. Therefore, we DENY the petitions for review and AFFIRM
the initial decisions, which are now the Board’s final decisions. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant previously had filed an individual right of action (IRA)
appeal claiming, inter alia, that the agency denied him a temporary promotion in
retaliation for whistleblowing. See Schnell v. Department of the Army, MSPB
Docket No. CH‑1221‑07‑0700‑W-1. The Board found that he was the victim of
retaliation for whistleblowing and ordered the agency to promote him. See
Schnell v. Department of the Army, 114 M.S.P.R. 83, 95 (2010). As a result, the
agency promoted the appellant to an Environmental Engineer, GS‑0819-12
position. Subsequently, the appellant filed a petition for enforcement arguing that
the agency had not complied with the Board’s order; however, an administrative
judge found that the agency already had complied with the Board’s order by
promoting the appellant, though it had not complied with respect to other issues
in the Board’s order. See Schnell v. Department of the Army, MSPB Docket
No. CH-1221-07-0700-B-1, Recommendation (Oct. 18, 2011). In response to the
administrative judge’s recommendation in the compliance matter, the appellant
disputed the administrative judge’s compliance findings concerning the
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promotion. See Schnell v. Department of the Army, MSPB Docket No. CH-1221-
07-0700-X‑2 (compliance referral matter).
¶3 While the compliance referral matter was pending, the agency removed the
appellant from his Environmental Engineer position for unacceptable
performance. The appellant simultaneously filed a Board appeal challenging his
removal, Schnell v. Department of the Army, MSPB Docket No. CH-0752-13-
0056-I-1, Initial Appeal File (IAF), Tab 1, and an IRA appeal alleging that the
agency took several personnel actions against him in retaliation for his
whistleblowing, Schnell v. Department of the Army, MSPB Docket No. CH-1221-
12-0770-W-1 (W-1 AF), Tab 1.
¶4 The administrative judge issued initial decisions for each appeal finding
that the Board’s final decision in the compliance referral matter could
substantially and dramatically alter the basis for adjudicating his removal and
IRA appeals. IAF, Tab 6, Initial Decision (I-1 ID) at 2; W-1 AF, Tab 7, Initial
Decision (W-1 ID) at 3. For that reason, the administrative judge dismissed the
appellant’s removal and IRA appeals without prejudice to refiling within 30 days
after the appellant received the Board’s Final Order in the compliance referral
matter. I-1 ID at 2; W-1 ID at 3.
¶5 The Board issued a Final Order finding the agency in compliance in the
compliance referral matter. See Schnell v. Department of the Army,
MSPB Docket No. CH-1221-07-0700-X-2, Final Order (Aug. 21, 2014). On
September 18, 2014, the appellant timely refiled his removal and IRA appeals,
stating his intention also to appeal the Board’s August 21, 2014 Final Order on
his compliance appeal to the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit). Schnell v. Department of the Army, MSPB Docket
No. CH-0752-13-0056-I-2, Appeal File (I-2 AF), Tab 1; Schnell v. Department of
the Army, MSPB Docket No. CH-1221-12-0770-W-2, Appeal File (W-2 AF),
Tab 1. The administrative judge found, as before, that the Federal Circuit’s
decision in the appellant’s compliance action could substantially and dramatically
4
alter the basis for adjudicating his removal and IRA appeals, and that the interests
of justice and administrative efficiency would be served best by holding in
abeyance his removal and IRA appeals to await a decision from the Federal
Circuit concerning it. I-2 AF, Tab 3, I-2 ID at 3; W-2 AF, Tab 3, W-2 ID at 3-4.
For that reason, the administrative judge issued initial decisions dismissing, for
the second time, both appeals without prejudice to the appellant’s right to refile
within 30 days after he received the Federal Circuit’s decision adjudicating his
appeal of the compliance action. I‑2 AF, Tab 3, I-2 ID at 3; W-2 AF, Tab 3, W-2
ID at 4.
¶6 On March 25, 2015, the Federal Circuit issued its decision affirming the
Board’s compliance findings. Schnell v. Department of the Army, 605 F. App’x
974, 975 (Fed. Cir. 2015). On June 10, 2015, the appellant refiled his removal
and IRA appeals. Schnell v. Department of the Army, MSPB Docket
No. CH-0752-13-0056-I-3, Appeal File (I-3 AF), Tab 1; Schnell v. Department of
the Army, MSPB Docket No. CH-1221-12-0770-W-3, Appeal File (W-3 AF),
Tab 1. Because the appeals appeared untimely refiled by 47 days, the
administrative judge issued show cause orders on timeliness. I-3 AF, Tab 3
at 2-3; W-3 AF, Tab 3 at 2-3. In response, the appellant acknowledged that the
Federal Circuit’s decision in the compliance action was dated March 25, 2015.
However, he asked the administrative judge to waive the filing deadline for his
refiled Board appeals in part because he forgot about the deadline while he was
“weighing his options” and considering whether to appeal the Federal Circuit’s
decision to the U.S. Supreme Court. I-3 AF, Tab 7 at 1; W-3 AF, Tab 7 at 1. In
addition, the appellant asked the administrative judge to dismiss the appeals
without prejudice “until the [Office of Special Counsel] rules on the ‘new
evidence’ that [he planned] to submit.” I-3 AF, Tab 7 at 2; W-3 AF, Tab 7 at 2.
The appellant’s purportedly new evidence referred to “the evidence that [he]
submitted to the Chicago Regional Office and to the Washington Office after
5
23 July 2007.” I-3 AF, Tab 7 at 2; W-3 AF, Tab 7 at 2. The appellant also raised
additional arguments unrelated to the timeliness of these refiled appeals.
¶7 Based on the written record, the administrative judge dismissed the refiled
appeals as untimely with no good cause shown for the delay. I‑3 AF, Tab 8,
I-3 ID; W-3 AF, Tab 8, W-3 ID. The administrative judge found that the
appellant did not show good cause for the refiling delay because the deadline was
clear and unambiguous. He also found that the appellant stated that he forgot
about the filing deadline, not that he was unaware of it, and that, in his mind, he
had 90 days to refile his appeals. The administrative judge further found that the
appellant offered no other reason to explain why he failed to refile his appeals
before the deadline. I-3 ID at 6; W-3 ID at 6.
¶8 The appellant filed substantially similar petitions for review for the refiled
removal and IRA appeals, and the agency opposes both. I-3 Petition for Review
(PFR) File, Tabs 1, 3; W‑3 PFR File, Tabs 1, 3. We join these cases because
doing so will expedite the processing of these cases on review and will not
adversely affect either party. See 5 U.S.C. § 7701(f)(2).
ANALYSIS
¶9 It is undisputed that the refiled appeals are untimely. The Board has
identified the following factors as supporting a finding of good cause for waiving
a refiling deadline: (1) the appellant’s pro se status, his timely filing of the initial
appeal, his intent throughout the proceedings to file an appeal, his minimal delay
in refiling, and any justifiable confusion; (2) the small number of dismissals
without prejudice; (3) an arbitrary refiling deadline; (4) the agency’s failure to
object to the dismissal without prejudice; and (5) the lack of prejudice to the
agency in allowing the refiled appeal. Gaddy v. Department of the
Navy, 100 M.S.P.R. 485, ¶ 13 (2005); see I-3 AF, Tab 3 at 2-3; W-3 AF, Tab 3
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at 2-3. The appellant bears the burden of proof, by a preponderance of the
evidence, regarding issues of timeliness. 2 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶10 The appellant argues, for the first time on review, that the Board should
find good cause for waiving the filing deadline based on the Gaddy factors. 3
I-3 PFR File, Tab 1 at 4; W‑3 PFR File, Tab 1 at 4. Applying the Gaddy factors
in this case, we find no reason to disturb the initial decisions dismissing these
appeals as untimely refiled. First, it is true that this pro se appellant timely filed
his initial appeals and he stated his intent to refile his appeals. However, his
undisputed 47‑day delay in refiling his appeals is not minimal and any alleged
confusion about the refiling deadline is implausible considering that he is an
experienced appellant familiar with the Board’s deadlines and procedures for
refiled appeals. Second, his appeals were previously dismissed without prejudice
twice, yet he responded to the show cause orders on timeliness by asking for
another dismissal without prejudice. I-3 AF, Tab 7 at 2; W‑3 AF, Tab 7 at 2.
Third, the refiling deadline was not arbitrary, but based on the appellant’s receipt
of an anticipated Federal Circuit decision in a related compliance action that
could have affected the joined appeals. Fourth, contrary to the appellant’s
arguments on review that the agency did not object to his dismissals without
prejudice to refiling and that the agency would not be prejudiced if he refiled his
appeals, I‑3 PFR File, Tab 1 at 4; W‑3 PFR File, Tab 1 at 4, the agency opposes
his petitions for review and asks the Board to uphold the initial decisions
dismissing his appeals as untimely filed without good cause shown, I-3 PFR File,
2
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
3
On review, the appellant does not explain his failure to address the Gaddy factors in
his responses to the show cause orders on timeliness, although the administrative judge
informed him that the Board considers these factors in determining whether an appellant
has shown good cause to waive the refiling deadline. I-3 AF, Tab 3 at 2-3; W‑3 AF,
Tab 3 at 2‑3.
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Tab 3 at 7‑8; W-3 PFR File, Tab 3 at 7-8. Fifth, despite the lack of any apparent
prejudice to the agency in allowing the refiled appeals, we find that the record
does not otherwise support finding that the appellant established good cause to
excuse his untimely refiling.
¶11 Specifically, the initial decisions dismissing the appeals without prejudice
clearly identified that the appellant was required to refile his appeals within
30 days after he received the Federal Circuit’s decision adjudicating his appeal of
the compliance action. I-2 AF, Tab 3 at 3; W-2 AF, Tab 3 at 4. The appellant,
however, offers no explanation for his failure to timely refile his appeals or to ask
for an extension of time to refile his appeals within the relevant time period.
See generally Nelson v. U.S. Postal Service, 113 M.S.P.R. 644, ¶¶ 9–10 (2010)
(finding no good cause for a pro se appellant’s 1½ month delay in refiling his
appeal where the initial decision clearly identified the date for refiling and he
failed to provide any evidence justifying any confusion over the deadline or his
failure to request an extension), aff’d, 414 F. App’x 292 (Fed. Cir. 2011).
¶12 We have considered the appellant’s remaining arguments, including his
claim that the administrative judge misconstrued his factual arguments on appeal,
but we find no legal basis for disturbing the initial decisions dismissing the
appeals as untimely refiled without showing good cause. 4 I-3 PFR File, Tab 1
at 1; W-3 PFR File, Tab 1 at 1. We therefore deny his petitions for review.
4
For example, the appellant appears to assert that, below, the administrative judge erred
in finding no good cause shown for his untimely refiling because he had a conversation
with someone in the regional office on June 9, 2015, that left him uncertain about the
filing deadline. I‑3 AF, Tab 7 at 1; W‑3 AF, Tab 7 at 1. As this conversation took
place after the filing deadline, we do not see how it affected his ability to timely refile
his appeals. The appellant also argues, among other things, that he was “preoccupied
with the judgment and opinion of the Federal Circuit and the possibilities for appeal to
either the Federal Circuit itself or to the Supreme Court.” I‑3 AF, Tab 7 at 4; W‑3 AF,
Tab 7 at 4. We find that the appellant’s indecision about appealing the Federal
Circuit’s decision in his compliance action does not constitute good cause for waiving
the refiling deadline in these joined appeals.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 U.S. Court of Appeals for the
Federal Circuit or any court of appeals of competent jurisdiction. The 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit is
9
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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.