Filed: Jul. 14, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TENA MARIE HARNISH, DOCKET NUMBER Appellant, CH-0752-14-0303-I-1 v. UNITED STATES POSTAL SERVICE, DATE: July 14, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Tena Marie Harnish, Indianapolis, Indiana, pro se. Nathan R. Mellman, Chicago, Illinois, 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
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TENA MARIE HARNISH, DOCKET NUMBER Appellant, CH-0752-14-0303-I-1 v. UNITED STATES POSTAL SERVICE, DATE: July 14, 2015 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Tena Marie Harnish, Indianapolis, Indiana, pro se. Nathan R. Mellman, Chicago, Illinois, 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 a..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TENA MARIE HARNISH, DOCKET NUMBER
Appellant, CH-0752-14-0303-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 14, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tena Marie Harnish, Indianapolis, Indiana, pro se.
Nathan R. Mellman, Chicago, Illinois, 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dismissed her appeal as withdrawn. 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), and the appellant’s request to reopen
her appeal is DENIED, 5 C.F.R. § 1201.118.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 The appellant appealed the agency’s decision to remove her. Initial Appeal
File (IAF), Tab 1. However, after the approval of her disability retirement
application, she requested to withdraw her appeal. Hearing Compact Disc. The
administrative judge therefore dismissed the appeal as withdrawn on December 9,
2014. IAF, Tab 34, Initial Decision (ID).
¶3 The appellant filed an untimely petition for review on March 27, 2015, in
which she asserts that she was: (1) confused when she withdrew her appeal;
(2) not provided with information concerning the withdrawal; and (3) not made
whole by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. She also
states that she has been ill due to her disabilities. Id. at 3. The Clerk of the
Board issued an acknowledgment letter informing the appellant that her petition
was untimely filed and affording her the opportunity to file a motion to ask the
Board to accept the filing as timely and/or waive the time limit for good cause.
PFR File, Tab 2. The appellant did not respond. The agency has responded in
opposition to the appellant’s petition. 2 PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board treats a request to reopen an initial decision (which became final
when neither party petitioned for review) as an untimely filed petition for review.
2
In addition to this removal appeal, the appellant also filed an indefinite suspension
appeal. Harnish v. U.S. Postal Service, MSPB Docket No. CH-0752-14-0304-I-1.
Although the appeals were never joined, the administrative judge dismissed both
appeals as withdrawn on the same day. ID; Harnish v. U.S. Postal Service, MSPB
Docket No. CH-0752-14-0304-I-1, Initial Decision (Dec. 9, 2014). The appellant filed
the present petition for review only in connection with the removal appeal. As a result,
the Clerk of the Board issued an order seeking to clarify whether the appellant also
intended to challenge the dismissal of her indefinite suspension appeal. PFR File,
Tab 4. The order further stated that if the appellant did not respond, the Board would
assume that she intended to contest only the initial decision in the removal appeal. Id.
Accordingly, because the appellant did not respond, we consider her petition for review
only as to MSPB Docket No. CH-0752-14-0303-I-1.
3
Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).
Therefore, we initially will consider the appellant’s submission as an untimely
filed petition for review.
¶5 The Board’s regulations require that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision or, if a party
shows that she received the initial decision more than 5 days after it was issued,
within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e)(1).
The record shows that the appellant registered as an e-filer with the Board’s
electronic filing system (e-appeal). IAF, Tab 1. Registration as an e-filer
constitutes consent to accept electronic service of documents issued by the
Board. 5 C.F.R. § 1201.14(e). The Board’s regulations further provide that
Board documents served on registered e-filers are deemed received on the date of
the electronic submission. 5 C.F.R. § 1201.14(m)(2).
¶6 The record reflects that the initial decision in this matter was transmitted
via e-appeal on December 9, 2014. IAF, Tab 34. Because the appellant was a
registered e-filer, she is deemed to have received the initial decision on that date.
See 5 C.F.R. § 1201.14(e)(1), (m)(2). Thus, the deadline for filing a petition for
review of the initial decision was 35 days after its issuance, i.e., January 13,
2015. See 5 C.F.R. § 1201.113; see also ID at 2. The appellant did not file her
petition for review until March 27, 2015. PFR File, Tab 1. Her petition therefore
was untimely filed by 73 days.
¶7 The Board will waive its filing deadline only upon 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 she exercised 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). To determine if 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
4
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, which similarly shows a causal
relationship to her inability to timely file her petition. Id.
¶8 We find that the appellant failed to show good cause for a waiver of the
filing deadline because she did not respond to the Clerk of the Board’s order
concerning whether there was good cause for her filing delay. See id., ¶ 6.
Additionally, although the appellant states that she is disabled, she did not
explain how her disabilities affected her ability to timely file her petition or
request an extension of time. See Barlow v. Department of the Navy, 99 M.S.P.R.
569, ¶ 7 (2005) (finding that the appellant failed to establish that the untimely
filing of her petition was the result of illness where she had not submitted any
medical evidence to demonstrate that she was hospitalized, under medical
treatment, or otherwise suffering from an illness between the dates of issuance of
the initial decision and for timely filing her petition). Therefore, we find that the
petition for review is untimely filed without good cause shown for the delay. See
Duncan v. U.S. Postal Service, 96 M.S.P.R. 448, ¶ 7 (2004) (finding that the
appellant did not show good cause for the delay in filing his petition for review
where, notwithstanding his pro se status, the delay was significant, he did not
respond to the Clerk of the Board’s timeliness notice, and he did not make any
statement explaining the delay).
¶9 To the extent that the petition is construed as a request to reopen the appeal
pursuant to 5 C.F.R. § 1201.118, we deny this request. See Lincoln v. U.S. Postal
Service, 113 M.S.P.R. 486, ¶ 9 (2010). Ordinarily, an appellant’s withdrawal of
an appeal is an act of finality and, in the absence of unusual circumstances such
as misinformation or new and material evidence, the Board will not reinstate an
appeal once it has been withdrawn merely because the appellant wishes to
proceed before the Board or to cure an untimely petition for review. Potter v.
5
Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 7 (2011). The appellant
states that she was confused at the time of her withdrawal, that she was not
provided information concerning the withdrawal, and that she is disabled. PFR
File, Tab 1 at 3-4. However, she has presented no argument or evidence of
unusual circumstances concerning the withdrawal of her appeal. We therefore
decline to exercise our discretion to reopen the appeal. See
Lincoln, 113 M.S.P.R. 486, ¶ 9.
¶10 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 appellant’s withdrawal of her removal appeal.
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. 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 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.
6
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 United States 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
