UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD J. BOEHNING, DOCKET NUMBER
Appellant, DA-4324-16-0126-I-1
v.
DEPARTMENT OF JUSTICE, DATE: January 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Richard J. Boehning, Tomball, Texas, pro se.
Katherine Bolton, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as settled his appeal alleging that the agency violated his rights under
the Uniformed Services Employment and Reemployment Rights Act of 1994
(codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA). For the reasons set
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
forth below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 The appellant, a GS-13 Special Agent in the Houston office of the agency’s
Bureau of Alcohol, Tobacco, and Firearms, alleged that the agency violated his
rights under USERRA when it denied him the assignment of his former
Government-owned vehicle, singled him out for an undesirable work detail, and
allegedly took improper actions regarding his performance rating after he
returned from uniformed service. Initial Appeal File (IAF), Tabs 2, 8, 13, 16.
The administrative judge found that the appellant established jurisdiction over the
appeal. IAF, Tab 16. The parties subsequently entered into a settlement
agreement. IAF, Tab 15. They submitted their agreement to the Board for
enforcement purposes, and the administrative judge found that the agreement
appeared lawful on its face, the parties had freely entered into it, and they
understood its terms. IAF, Tab 17, Initial Decision (ID). On January 28, 2016,
the administrative judge issued an initial decision dismissing the appeal as
settled. Id.; see 5 C.F.R. § 1201.41(c)(2).
¶3 On November 16, 2016, the appellant filed a petition for review. Petition
for Review (PFR) File, Tab 1. The Clerk of the Board informed the appellant that
his petition for review was untimely filed because it was not filed on or before
March 3, 2016. PFR File, Tab 2 at 2. The Clerk also notified the appellant that
he must file a motion, signed under penalty of perjury, or an affidavit showing
either that his petition was timely filed or that good cause exist ed to waive the
filing deadline. Id. On December 16, 2016, the appellant filed a motion to waive
or set aside the time limit for good cause. PFR File, Tab 5. The agency responds
in opposition, and the appellant provides a reply to the agency’s response. PFR
File, Tabs 6-7.
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review must be filed within 35 days after the date of issu ance
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 Board
issued the initial decision in this appeal on January 28, 2016. ID at 1. The
appellant does not contend that he received the initial decision more than 5 days
after its issuance, so his petition for review needed to be filed within 35 days of
the issuance of the initial decision, i.e., on or before March 3, 2016. 5 C.F.R.
§ 1201.114(e). The appellant’s petition for review is postmarked November 19,
2016, making it over 8 months late. PFR File, Tab 1. The date of a filing
submitted by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l).
¶5 In his motion on the timeliness issue, the appellant asserts that his
representative reneged on their side agreement for him to pay the appellant
$1,000.00 out of the amount of attorney fees paid under the settlement agreement.
PFR File, Tab 5 at 5. He also asserts that he filed a March 31, 2016 complaint
with the Tennessee Board of Professional Responsibility (TBPR), alleging that
his representative engaged in unethical conduct and that he may have been
suspended from the practice of law while representing him. Id. The appellant
argues that he did not timely file his petition for review because the TBPR did not
complete its investigation of his representative until November 14, 2016 , which
confirmed that his representative was suspended from practicing law while
representing him. Id. He claims that he immediately thereafter contacted the
Board’s regional office, as well as the agency’s representative, to learn what
options were available to have the case reviewed. Id. at 6-7. He filed his petition
for review by mail 5 days later. PFR File, Tab 1.
¶6 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 an untimely filing, a party must show that he exercised
4
due diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014); 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 that similarly shows a causal
relationship to his inability to timely file his petition for review. Gaetos,
121 M.S.P.R. 201, ¶ 5; 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).
¶7 As noted above, the appellant’s petition for review is untimely filed by over
8 months, which is a significant delay. See Terrell v. U.S. Postal Service,
114 M.S.P.R. 38, ¶ 9 (2010) (finding that a 42-day delay is significant); Summers
v. U.S. Postal Service, 87 M.S.P.R. 403, ¶¶ 6, 12 (2000) (finding that a delay of
nearly 1 month and a delay of 15 days are significant), aff’d, 25 F. App’x 827
(Fed. Cir. 2001) (Table). Moreover, the appellant’s arguments that his
representative breached their side agreement and was suspended from the practice
of law while representing him do not establish good cause for his untimely filing
because the appellant is responsible for the errors of his chosen representative .
Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). Further, the
appellant’s assertions that his representative misrepresented his status as an
attorney and failed to file a response to the agency file below, while unfortunate,
do not establish good cause for his delay in filing. PFR File, Tab 7 at 5; see
Hatcher v. U.S. Postal Service, 27 M.S.P.R. 471, 472 (1985) (finding that the
appellant’s assertion that his former representative misrepresented himself as an
attorney and had provided untimely, ineffective, and incompetent representation
did not show good cause for the Board to waive its regulatory deadline for filing a
petition for review).
5
¶8 Finally, we find that the appellant acted in a less than diligent manner
when, after having learned in March 2016 that his representative may have been
suspended from the practice of law, he nevertheless waited until the following
November to file his petition for review. PFR File, Tab 1, Tab 5 at 5; see Alonzo,
4 M.S.P.R. at 184. Indeed, even if the appellant could establish that his otherwise
diligent efforts to prosecute his appeal were thwarted by the negligence or
malfeasance of his representative, it would not excuse th e over 8 months that he
allowed to elapse after he first learned of his representative’s alleged misconduct
and the time he filed his petition. 2 E.g., Williams v. Department of Defense,
83 M.S.P.R. 519, ¶ 9 (1999), aff’d, 243 F.3d 567 (Fed. Cir. 2000) (Table).
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay. 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 dismissal of the
appeal as settled.
2
The appellant also has filed a motion for leave to submit newly acquired evidence.
PFR File, Tab 8. Pleadings allowed on review include a petition for review, a cross
petition for review, a response to a petition for review, and a reply to a response to a
petition for review. 5 C.F.R. § 1201.114(a). No other pleadings will be accepted
unless the party files a motion with and obtains leave from the Clerk of the Board.
5 C.F.R. § 1201.114(a)(5). Such a motion must describe the nature of and need for the
pleading. Id. In his motion, the appellant proposes to submit new evidence reflecting
that the TBPR disbarred his representative on June 16, 2017. PFR File, Tab 8 at 4.
Considering our finding herein that the appellant acted in less than a diligent manner by
waiting 8 months after he learned of his representative’s alleged misconduct to file his
petition for review, we deny the appellant’s motion. The Board will not grant a petition
for review based on new evidence absent a showing that it is of sufficient weight to
warrant a different outcome. Russo v. Veterans Administration, 3 M.S.P.R. 345, 349
(1980).
6
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
8
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at th eir respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
The original statutory provision that provided for judicial r eview of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicia l review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub . L. No. 115-195,
132 Stat. 1510.
10
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.