Filed: Apr. 19, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL, DOCKET NUMBER Petitioner, CB-1215-14-0011-T-1 v. ANNIE HERBERT, DATE: April 19, 2016 Respondent. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Clarissa Pinheiro, Esquire, Mariama Liverpool, Esquire, and Rachel A. Venier, Esquire, Washington, D.C., for the petitioner. Annie Herbert, Indianapolis, Indiana, pro se. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The respondent has filed a petition for revi
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SPECIAL COUNSEL, DOCKET NUMBER Petitioner, CB-1215-14-0011-T-1 v. ANNIE HERBERT, DATE: April 19, 2016 Respondent. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Clarissa Pinheiro, Esquire, Mariama Liverpool, Esquire, and Rachel A. Venier, Esquire, Washington, D.C., for the petitioner. Annie Herbert, Indianapolis, Indiana, pro se. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The respondent has filed a petition for revie..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SPECIAL COUNSEL, DOCKET NUMBER
Petitioner, CB-1215-14-0011-T-1
v.
ANNIE HERBERT, DATE: April 19, 2016
Respondent.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Clarissa Pinheiro, Esquire, Mariama Liverpool, Esquire, and Rachel A.
Venier, Esquire, Washington, D.C., for the petitioner.
Annie Herbert, Indianapolis, Indiana, pro se.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The respondent has filed a petition for review of the initial decision, which
dismissed as settled the complaint that the petitioner brought against her. For the
reasons set forth below, the respondent’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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 18, 2014, consistent with 5 C.F.R. § 1201.36(b), an administrative
law judge designated by the Board sua sponte consolidated complaints brought by
the petitioner against three individually-named respondents, including the
respondent in this matter. 2 The administrative law judge did so under MSPB
Docket No. CB-1215-14-0019-T-1, Consolidation Appeal File, Tab 1.
Notwithstanding, for the purpose of allowing greater flexibility in removing
respondents from the consolidation, the administrative law judge also issued
separate docket numbers for each of the three respondents, which he considered
as their individual docket numbers. Id. The cases proceeded as consolidated
under MSPB Docket No. CB-1215-14-0019-T-1 until September 26, 2014, when,
in the case of this respondent, the administrative law judge removed her from the
consolidation 3 because the respondent reached a settlement with the petitioner
resolving the complaint against her. Office of Special Counsel v. Herbert, MSPB
Docket No. CB-1215-14-0011-T-1, Initial Appeal File (IAF), Tab 8, Tab 9, Initial
Decision (ID). On that basis, the administrative law judge issued an initial
decision dismissing the complaint as settled. ID. The decision’s finality date was
October 31, 2014.
2
The complaints involved the respondents’ alleged improper manipulation of four
competitive examinations, and discrimination on the basis of political affiliation in
violation of 5 U.S.C. § 2302(b)(1)(E) and (b)(6).
3
Earlier, on September 3, 2014, the administrative law judge removed Respondent
John Kappel’s case from the consolidation based upon the parties having reached a
settlement agreement, and he dismissed the case as settled. Office of Special Counsel v.
Kappel, MSPB Docket No. CB-1215-14-0010-T-1, Initial Decision (Sept. 3, 2014).
Respondent Kappel has not filed a petition for review of that decision. Respondent
Coffman’s complaint continued through hearing and to adjudication wherein the
administrative law judge found the complaint against her not proven. Office of Special
Counsel v. Coffman, MSPB Docket No. CB-1215-14-0012-T-1, Initial Decision (Oct. 6,
2015). The Office of Special Counsel has challenged that decision and it is currently
pending before the Board on petition for review. It will be addressed in a
separate decision.
3
¶3 On November 4, 2015, the respondent, appearing pro se, 4 filed a petition for
review of that decision. Petition for Review (PFR) File, Tab 1. She asked that
the settlement agreement be rescinded based on the decision of the administrative
law judge “exonerating” Respondent Coffman. Id. at 1. Specifically, the
respondent argued that “[n]one of the executive level decision makers/key players
have been held accountable for the action of their respective offices; yet, I have
experienced financial hardship, embarrassment, persecution, and been made the
scape goat for actions that were beyond my control and not initiated by me.” Id.
The Clerk of the Board informed the respondent that her petition for review was
untimely filed and instructed her to file a motion for waiver of the time limit,
including an affidavit or a statement signed under the penalty of perjury showing
good cause for the delay. PFR File, Tab 2. The respondent filed a motion signed
under the penalty of perjury wherein she repeated her claim that, having reviewed
Respondent Coffman’s decision as issued by the administrative law judge, she
knows that none of the senior executive leaders involved in the case had been
held accountable for their role/actions, and that she was not a willing participant
in the actions that led to a violation of the merit systems principles. PFR File,
Tab 4 at 2. The petitioner has responded, urging that the petition for review be
dismissed as untimely filed with no showing of good cause. PFR File, Tab 5.
ANALYSIS
¶4 To be timely, a petition for review must be filed within 35 days after the
issuance of the initial decision, or, if the respondent shows that the initial
decision was received more than 5 days after it was issued, within 30 days after
the date the respondent received the initial decision. 5 C.F.R. §§ 1201.113,
4
The respondent was represented by counsel from the outset of this matter up to and
including the signing of the settlement agreement. IAF, Tabs 5, 8. In a November 27,
2015 letter, the respondent’s representative below stated that he was unaware that the
respondent had filed a petition for review and he no longer represented her. Petition for
Review File, Tab 3.
4
114(d). Although the respondent acknowledges that she received the initial
decision in a timely fashion, PFR File, Tab 4 at 2, she nonetheless filed her
petition for review on November 4, 2015, more than a year after the deadline for
filing a petition for review.
¶5 The Board will waive its filing deadline only upon a showing of good cause
for the filing delay. 5 C.F.R. § 1201.114(f). 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). More specifically, to determine
whether a respondent 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 which similarly
shows a causal relationship to her inability to timely file her 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 Here, the initial decision expressly advised the respondent, in plain
language, of the time limit and procedures regarding obtaining Board review. ID
at 4. The respondent’s failure to file her petition for review with the Board in
accordance with those unambiguous instructions constitutes a failure to exercise
due diligence or ordinary prudence. See Fredrick v. Department of Justice,
76 M.S.P.R. 477, 480 (1997).
¶7 However, the respondent’s argument on review is more akin to a claim of
new evidence. Where an initial decision dismisses the case as settled, newly
discovered evidence may constitute good cause for the untimely filing of a
petition for review, if the newly discovered evidence established that the
settlement agreement was invalid. Dickson v. General Services Administration,
85 M.S.P.R. 7, ¶ 6 (1999), aff’d, 243 F.3d 566 (Fed. Cir. 2000) (Table).
5
¶8 While the decision in Respondent Coffman’s case is arguably new evidence
in that it was not issued until October 6, 2015, the respondent has not shown that
it establishes that the settlement agreement was invalid. Rather, she has
essentially expressed buyer’s remorse or after-the-fact dissatisfaction with the
terms of the settlement agreement. It is well settled that claimed dissatisfaction
with the terms of a settlement agreement does not constitute good cause for a
filing delay. Cooper v. U.S. Postal Service, 104 M.S.P.R. 674, ¶ 7 (2007). In this
case, although the respondent is now unhappy with the agreement, suggesting
perhaps that she might have fared better had she litigated her case, she has not
shown how the circumstances surrounding the settlement agreement interfered
with her ability to file a timely petition for review. Id.
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown.
ORDER
¶10 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 as settled of the Office of Special
Counsel’s complaint against the respondent.
NOTICE TO THE RESPONDENT 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,
6
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 U.S. 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 U.S. 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
