Filed: Oct. 14, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATHANIEL K. WATTY, DOCKET NUMBER Appellant, NY-0752-15-0177-I-1 v. DEPARTMENT OF VETERANS DATE: October 14, 2016 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Nathaniel K. Watty, Saint Albans, New York, pro se. Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 dis
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATHANIEL K. WATTY, DOCKET NUMBER Appellant, NY-0752-15-0177-I-1 v. DEPARTMENT OF VETERANS DATE: October 14, 2016 AFFAIRS, Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Nathaniel K. Watty, Saint Albans, New York, pro se. Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 dism..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHANIEL K. WATTY, DOCKET NUMBER
Appellant, NY-0752-15-0177-I-1
v.
DEPARTMENT OF VETERANS DATE: October 14, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nathaniel K. Watty, Saint Albans, New York, pro se.
Kathleen J. Tulloch, Esquire, Brooklyn, New York, 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 his claims of a constructive suspension and involuntary retirement for
lack of jurisdiction, and denied his requests for corrective action under 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Uniformed Services Employment and Reemployment Rights Act of 1994 and the
Veterans Employment Opportunities Act of 1998. 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).
BACKGROUND
¶2 The initial decision was issued on March 17, 2016. Initial Appeal File
(IAF), Tab 55. The administrative judge informed the appellant that the initial
decision would become the Board’s final decision unless a petition for review
was filed by April 21, 2016. Id. at 17. Because the appellant was an e-filer, the
decision was served on him electronically at the email address provided by him.
IAF, Tab 56.
¶3 The appellant filed his petition for review on May 14, 2016, 23 days after
the filing deadline. Petition for Review (PFR) File, Tab 1. The appellant stated
that he did not learn that an initial decision had been issued until May 9, 2016,
when he said he received a voice mail message regarding a different Board appeal
telling him he had missed a telephonic conference. Id. at 4. He asserted that he
had failed to receive numerous notifications of pleadings and orders issued in
several cases that he had before the Board, and stated his belief that his
nonreceipt was a direct result of numerous attacks on his email account made by
hackers all over the world. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date
the initial decision is issued or, if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. 5 C.F.R. § 1201.114(e). The Board
will waive the time limit for filing a petition for review only upon a showing of
good cause for the delay in filing. 5 C.F.R. §§ 1201.113(d), 1201.114(f). The
3
party who submits an untimely petition for review has the burden of establishing
good cause for the untimely filing by showing that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Sanders v.
Department of the Treasury, 88 M.S.P.R. 370, ¶ 5 (2001). To determine whether
a party has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and the party’s 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 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).
¶5 Registration as an e-filer constitutes consent to accept electronic service of
pleadings filed by other registered e-filers and documents issued by the Board.
5 C.F.R. § 1201.14(e)(1). All notices, orders, decisions, and other documents
issued by the Board are available to parties and their representatives for viewing
and downloading at the Repository at e-Appeal Online. 5 C.F.R. § 1201.14(i).
When Board documents are issued, email messages are sent to e-filers that notify
them of the issuance and that contain links to the repository where the documents
can be viewed and downloaded; paper copies of these documents are not
ordinarily served on e-filers. 5 C.F.R. § 1201.14(j)(1). E-filers are responsible
for ensuring that email from @mspb.gov is not blocked by filters, and for
monitoring case activity at the Repository at e-Appeal Online to ensure that they
have received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3). 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).
¶6 The appellant’s claim that he did not become aware until May 9, 2016, of
the issuance of the initial decision is belied by the Board’s electronic log of
4
activity at e-Appeal Online, which shows that the appellant accessed the e-Appeal
Online system for this appeal on April 27, 2016, which includes the Repository
containing the initial decision. That date is significant, in that it was on April 27
that the administrative judge in the appellant’s other proceeding issued a show-
cause order stating that the appellant was made aware of the administrative
judge’s April 14 acknowledgment order during a telephone call on April 25.
MSPB Docket No. NY-4324-14-0152-B-1, IAF, Tab 3. In his response to this
order, which was dated May 3 and filed on May 5, the appellant explained that
the reason for his failure to appear was that he had not received the Board’s
e-Appeal Online notifications. Id., Tab 4. Based on our review of this evidence,
we find that the appellant received the initial decision no later than April 27,
2016.
¶7 Absent evidence that rebuts the appellant’s assertion that he did not become
aware of the initial decision until May 9, he has not shown that he exercised due
diligence or ordinary prudence under the particular circumstances of this case.
As noted above, the Board’s regulations provide that an e-filer is responsible for
monitoring the status of his case at the e-Appeal Repository. That a decision
might have been forthcoming in March 2016 should not have been a surprise to
the appellant. After the appellant waived his right to a hearing, the administrative
judge issued an order on January 24, 2016, stating that the appellant must submit
evidence and argument to be received no later than February 9, 2016, that the
agency’s response must be submitted no later than February 19, 2016, and that the
record would close on that date. IAF, Tab 49. The appellant submitted
documents to the record on January 27, and the agency submitted evidence and
argument, including affidavits, on February 19. IAF, Tabs 52-53. Under these
circumstances, the appellant could have expected an initial decision to be issued
5
at any time after February 19. 2 To have waited until late April or early May to
monitor case activity at the e-Appeal Online Repository did not show ordinary
prudence or due diligence under the circumstances.
¶8 For the above reasons, we conclude that the appellant did not establish that
he exercised due diligence or ordinary prudence under the particular
circumstances of this case, and therefore did not establish good cause for the
untimely filing of his petition for review.
¶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 appellant’s claims of a constructive suspension, an
involuntary retirement, and alleged violations of the Uniformed Services and
Reemployment Act of 1994 and the Veterans Employment Opportunities Act of
1998.
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.
2
Although the appellant exercised his right under 5 C.F.R. § 1201.59(c)(2) to rebut the
affidavits in the agency’s February 19 pleading, he waited until March 8 to do so,
6
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 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.
thereby taking the risk that an initial decision would be issued before the administrative
judge received his rebuttal pleading. IAF, Tab 54.
