UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KAREN R. EARLE , DOCKET NUMBER
Appellant, DC-0752-15-0811-I-1
v.
DEPARTMENT OF VETERANS DATE: August 19, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Carteia V. Basnight, Hampton, Virginia, for the appellant.
Timothy M. O'Boyle, Esquire, Hampton, 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
dismissed her appeal with prejudice for failure to prosecute. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 1, 2015, the appellant filed an appeal of the agency’s decision
removing her from her GS-9 Contract Specialist Position for failure to follow
instructions and conduct unbecoming of a Federal employee. Initial Appeal File
(IAF), Tab 1; Tab 5 at 9, 12-14. The appellant alleged, among other things, that
she was subjected to a hostile work environment, given assignments in an
unreasonable manner, denied a fair opportunity to perform her duties, and
retaliated against for prior equal employment opportunity (EEO) activity. IAF,
Tab 1 at 8. The administrative judge afforded the appellant several opportunities
to submit evidence, attend prehearing conferences, and otherwise argue the
appeal. IAF, Tab 7 at 1, 3; Tab 9; Tab 11, Initial Decision (ID). However, the
administrative judge ultimately dismissed the appeal for failure to prosecute due
to the appellant’s failure to respond to at least three orders. ID. The initial
decision notified the appellant of how to properly file a petition for review and
specifically stated that it would become final on March 4, 2016, unless a petition
for review was filed by that date. ID at 3-4.
¶3 On March 14, 2016, the appellant, through her attorney, filed a petition for
review, which listed numerous reasons for her failure to prosecute the original
appeal, including her attorney’s serious injury on November 16, 2015, which
required medical treatment, and the death or serious illnesses of several family
members of her attorney. 2 Petition for Review (PFR) File, Tab 1 at 4-6. In a
March 22, 2016 notice, the Clerk of the Board informed the appellant that her
petition for review was untimely filed because it was not filed on or before March
2
The appellant filed her petition for review by facsimile transmittal. The pleading
bears a facsimile transmittal machine imprinted date of March 14, 2016. PFR File,
Tab 1 at 4. The pleading also bears a stamp indicating that it was received by the Clerk
of the Board at 7:53 a.m. on March 15, 2016. The Board’s regulations provide that the
filing date of a pleading served by facsimile transmittal is the date of the facsimile.
5 C.F.R. § 1201.11(1). Thus, we will consider March 14, 2016, as the filing date.
3
4, 2016. PFR File, Tab 2 at 1. The Clerk’s notice informed the appellant that she
could file a motion signed under penalty of perjury or an affidavit showing either
that the petition was timely filed or that good cause existed to waive the filing
deadline. Id. In response, the appellant filed a motion to waive the deadline for
good cause, and the agency filed a response to the motion. PFR File, Tab 3 at 2-
4; Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 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). To establish
good cause for an untimely filing, a party must show that she 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 whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to her inability to timely file her
petition for review. 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).
¶5 The appellant’s petition for review was due on March 4, 2016, and her
untimely petition was filed on March 14, 2016. ID at 3; PFR File, Tab 1. In her
motion to waive the deadline, the appellant’s counsel alleged that in the process
of reviewing emails on March 9, she looked at an email dated January 29, 2016,
which informed her that the initial decision was available in the e-Appeal
Repository. PFR File, Tab 3 at 4. She claimed to have experienced technical
4
difficulties in accessing the system on March 9, which were resolved by the
Board’s Technical Support staff. Id. at 4, 8. However, this does not change the
determinative fact that she received the initial decision on January 29, 2016, but
chose not review it until March 9, 2016. Id.
¶6 Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission. 5 C.F.R. §1201.14(m)(2). When a
statute or regulation “deems” something to be done or to have been done, the
event is considered to have occurred whether or not it actually did. Lima v.
Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Notice of the initial
decision was served on the parties electronically on January 29, 2016, and the
appellant’s counsel admitted to receiving that email and to not attempting to open
the initial decision in the e-Appeal Repository until March 9, 2016. ID at 9;
PFR File, Tab 3 at 4. If there was a technical problem with the appellant’s
counsel’s e-Appeal access, it should have been identified and addressed within
the 35 day time period for filing a petition for review. The appellant’s counsel
has not alleged any misfortune during the filing period that interfered with her
ability to review the initial decision or file the petition for review. PFR File,
Tab 3. Counsel’s many listed problems occurred on or before November 16,
2015, and she has not explained any continuing impact that they had on her
ability to file a petition for review several months later. PFR File, Tab 3 at 3-4.
Therefore, we conclude that the appellant has not demonstrated good cause to
waive the filing deadline. 3
3
Although the appellant was represented by an attorney, and it is the attorney’s actions
that we are considering, absent unusual circumstances not present here, an appellant is
responsible for the errors of her chosen representative. Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670 (1981); see Murphy v. Department of the Treasury,
91 M.S.P.R. 239, ¶ 7 (2002), aff’d, 85 F. App’x 729 (Fed. Cir. 2003).
5
¶7 As noted, in evaluating whether good cause exists for an untimely petition
for review, the length of delay, the reasonableness of the excuse, whether the
appellant is pro se, and considerations beyond the appellant’s control that
interfere with a timely filing are relevant. Moorman, 68 M.S.P.R. at 62-63. The
appellant’s delay of 9 days, while not a vast amount of time, is not a de minimis
period either. See Hodges v. Office of Personnel Management, 101 M.S.P.R. 212,
¶ 14 (2006) (holding that an appellant’s 23-day refiling delay was “not
particularly de minimis . . . [and] not particularly lengthy”); Bailey v. U.S. Postal
Service, 85 M.S.P.R. 105, ¶¶ 2, 4-6 (2000) (finding that an appellant did not show
good cause for his 4-day delay in refiling an appeal). Furthermore, the appellant
failed to allege any circumstances beyond her control that prevented her from
filing on time, she was represented by counsel, and she did not provide any
reasonable explanations for the delay. These combined factors make the delay
inexcusable.
¶8 Therefore, the Board finds the petition for review to be untimely filed
without good cause shown. Accordingly, we dismiss the petition for review.
¶9 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 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
6
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 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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
Karen R. Earle v. Department of Veterans Affairs
Combined Opinion