UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIRK ELLIS, DOCKET NUMBER
Appellant, CH-0752-13-0878-I-1
v.
DEPARTMENT OF THE ARMY, DATE: August 18, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kirk Ellis, Little York, Illinois, pro se.
Michael C. Denny, Esquire, Quantico, Virginia, 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
affirmed the agency’s furlough action. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 July 17, 2013, the appellant filed an appeal of his placement in a
furlough status effective July 8, 2013. Initial Appeal File (IAF), Tab 1 at 3. The
appellant asserted that the furlough action was improper because he met the
definition of a “deployed civilian” and thus was exempt from the furlough. Id.
at 5. On September 8, 2015, the administrative judge issued an initial decision,
based on the written record, 2 affirming the agency’s furlough action. IAF,
Tab 10, Initial Decision (ID).
¶3 On March 4, 2016, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. The agency has not filed a response to the appellant’s
petition.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision 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 that the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The initial decision was issued on September 8, 2015, and sent to
the appellant, who is a registered e-filer, the same day. ID at 1; IAF, Tab 1 at 2.
Board documents served electronically on registered e-filers are deemed received
on the date of the electronic submission. 5 C.F.R. § 1201.14(m)(2). Thus, the
appellant’s petition for review was due on or before October 13, 2015, and his
March 4, 2016 petition for review was untimely filed by over 4 months.
¶5 The Board will waive the time limit for filing a petition for review only on
a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing, a party must show that he exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Harrison v. Office of Personnel Management, 114 M.S.P.R. 453, ¶ 5 (2010)
2
The appellant did not request a hearing. IAF, Tab 1 at 2.
3
(citing 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 the excuse and the showing of due
diligence, whether the appellant 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).
¶6 On March 7, 2016, the Clerk of the Board notified the appellant that his
petition for review appeared to be untimely filed. PFR File, Tab 2. The Clerk of
the Board explained that the Board’s regulations require that petitions for review
that are untimely filed must be accompanied by a motion to accept the filing as
timely or to waive the time limit for good cause shown, provided the appellant
with a blank copy of such a motion, and stated that any such motion was due by
March 22, 2016. Id.
¶7 On March 10, 2016, the appellant filed a motion to waive the time limit in
which he asserts that good cause exists for his untimely filing based on precedent
issued after the expiration of the petition for review filing deadline. PFR File,
Tab 3 at 4-5. The appellant cites to a March 4, 2016 initial decision in the appeal
of In re Redstone Arsenal, Group B v. Department of the Army, MSPB Docket
No. AT-0752-14-0561-I-1, which found that individuals whom the appellant
contends are similarly situated were exempt from being furloughed under the
“deployed civilian” exemption and reversed the agency’s furlough actions. PFR
File, Tab 1 at 3-4, 5-13, Tab 3 at 4-5.
¶8 We find that these circumstances do not constitute good cause for the delay.
By failing to file a timely petition for review, the appellant decided to forego his
opportunity to request that the Board reverse the administrative judge’s decision
affirming the agency’s furlough action. The issuance of new precedent after the
4
expiration of the time period for filing a petition for review does not establish
good cause for waiver of the time limit. See, e.g., Olson v. Department of
Agriculture, 91 M.S.P.R. 525, ¶ 6 (2002); Deem v. Office of Personnel
Management, 58 M.S.P.R. 468, 470 (1993); see also Shiansky v. Department of
Transportation, 33 M.S.P.R. 103, 105, aff’d, 831 F.2d 306 (Fed. Cir. 1987)
(Table). Moreover, In re Redstone Arsenal, Group B does not mandate reversal
of the initial decision in this appeal because Board initial decisions are of no
precedential value and cannot be cited or relied on as controlling authority.
Roche v. Department of Transportation, 110 M.S.P.R. 286, ¶ 13 (2008), aff’d,
596 F.3d 1375 (Fed. Cir. 2010); Rockwell v. Department of Commerce,
39 M.S.P.R. 217, 222 (1988); 5 C.F.R. § 1201.113.
¶9 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 furlough action.
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. 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
5
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 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.