UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOSEPH BROWN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-4324-14-0161-I-1

DATE: November 8, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Nathaniel Watty, Saint Albans, New York, for the appellant.

Kathleen J. Tulloch, Esquire, New York, 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 for lack of jurisdiction his request for corrective action under the 

Veterans Employment Opportunity Act (VEOA) and the Uniformed Services 

Employment and Reemployment Rights Act of 1994 (USERRA). For the reasons 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 appellant, a preference eligible, applied for a promotion to Supervisory 

Police Officer, GS-0083-09/11, but he was not selected for the position. Initial 

Appeal File (IAF), Tab 10 at 24-26, Tab 13, Subtab 4D at 2. He filed a Board 

appeal of his nonselection, alleging that the agency violated his rights under 

VEOA and USERRA, discriminated against him based on his race, nationality, 

sex, and disability, and committed prohibited personnel practices. IAF, Tab 1

at 3-5. 

¶3 On April 1, 2016, the administrative judge issued an initial decision 

dismissing the appeal for lack of jurisdiction without holding the requested 

hearing. IAF, Tab 1 at 2, Tab 18, Initial Decision (ID) at 1-10. He notified the 

appellant that the initial decision would become the Board’s final decision unless 

a petition for review was filed by May 6, 2016. ID at 10. The initial decision 

was served on the appellant by mail and on his representative electronically at the 

email address that the appellant provided. IAF, Tab 6, Tab 19. 

¶4 Despite this notice, the appellant, through his representative, filed a petition 

for review on May 19, 2016, thirteen days after the filing deadline. Petition for 

Review (PFR) File, Tab 1. In explaining the delay, the appellant’s representative 

states that he first learned that the initial decision had been issued when he 

accessed the Board’s e-Appeal Repository on May 9, 2016. PFR File, Tab 2 at 4. 

Before then, he apparently assumed that there were no new filings because he 

had not seen any email notifications. Id. He indicates that he finally checked the 

Repository in this case when, after missing filings in his own Board appeal, he 

learned that he was not receiving the Board’s notifications. Id. The appellant’s 

representative believes that he did not receive the notifications because his 

personal email account of record was compromised by an Office of Personnel 
3

Management data breach and subject to persistent hacking. Id. at 5. The 

appellant’s representative concedes that the appellant received the hardcopy of 

the initial decision that was mailed to him. Id. at 4. However, the appellant took 

no action because he was relying on his representative to handle the entirety of 

his appeal. Id. The agency filed a timely response. 2

 PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant disputes the administrative judge’s jurisdictional findings and 

contends that the Board should accept his petition for review as timely filed or

find good cause to excuse the delay. PFR File, Tab 1 at 4-5, Tab 2 at 4-5. In 

support, his representative alleges that he did not receive the initial decision until

May 9, 2016, and that his delay should be excused because it was due to the 

alleged hacking of his email account. Id. at 4-5. We find that the appellant’s 

petition does not provide a basis for review, as it is untimely filed without good 

cause shown. 

¶6 A petition for review must be filed within 35 days after the date of issuance 

of the initial decision or within 30 days after the date that the appellant received 

the initial decision if he shows that he received the initial decision more than 

5 days after it was issued. 5 C.F.R. § 1201.114(e). 

¶7 Here, the Board’s e-Appeal logs contradict the appellant’s representative’s 

claims as to the receipt date of the initial decision. The record confirms that on

April 1, 2016, the Board electronically served a copy of the initial decision on the 

appellant’s representative at his email address of record. IAF, Tab 6 at 1, Tab 19

at 2. The Board’s e-Appeal logs further establish that the appellant’s 

representative accessed and downloaded the initial decision later that day. The 

 2 The appellant argues that the agency’s response was untimely, and thus, we should not 

consider it. PFR File, Tab 5 at 3, Tab 6 at 3. In acknowledging the petition for review, 

the Clerk of the Board stated that the agency could file a response on or before June 13, 

2016. PFR File, Tab 3 at 1. The agency submitted a response on that date. PFR File,

Tab 4. Thus, we consider the agency’s response because it was timely filed. 
4

Board imputes service on a designated representative to the party. Lima v. 

Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Therefore, we find 

that the appellant received the initial decision on April 1, 2016, and had until

May 6, 2016, to file his petition. 3

 5 C.F.R. § 1201.114(e). Because the appellant

did not file until May 19, 2016, his petition was untimely filed by 13 days. 

¶8 The Board will excuse the untimely filing of a petition for review only upon 

a showing of good cause for the delay. Via v. Office of Personnel Management, 

114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). To determine whether 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. 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).

¶9 As stated above, the Board’s records contradict the appellant’s 

representative’s claims that he did not receive the initial decision at the time it 

was issued. However, even if we were to credit his claims, we find that he and 

the appellant exhibited a lack of due diligence. The 13-day delay in filing is not 

minimal. Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 7 (2003). 

As an e-filer, the appellant’s representative was responsible for ensuring that

filters did not block the Board’s emails. 5 C.F.R. § 1201.14(j)(2). If he was 

concerned about the security of his email account, he could have changed his 

 3 Board documents served electronically on registered e-filers are deemed received on 

the date of electronic submission, regardless of whether they were in fact received. 

Lima, 101 M.S.P.R. 64, ¶ 5; 5 C.F.R. § 1201.14(m)(2). Therefore, the appellant’s 

representative, and thus the appellant, are deemed to have received the initial decision 

on April 1, 2016. 
5

method of service to regular mail or changed his email of record. See 5 C.F.R 

§ 1201.14(e)(4), (6) (permitting withdrawal of registration as an e-filer and 

outlining the process for changing the email address of record). Also, the 

appellant’s representative was responsible for monitoring case activity in the

e-Appeal Repository to ensure that he had received all case-related documents. 

See 5 C.F.R. § 1201.14(j)(3). Thus, the persistent email problems that 

purportedly contributed to his failure to receive Board notices do not excuse 

the delay. 

¶10 Finally, the appellant’s reliance on his representative to handle his appeal 

does not excuse the untimely filing because he is responsible for the errors of his 

chosen representative. See Young v. Department of Labor, 69 M.S.P.R. 695, 

697-98 (1996) (finding that an appellant’s unwarranted belief that her 

representative is pursuing her appeal does not support a finding of due diligence). 

Therefore, we find that the appellant has not established good cause for the

untimely filing. 

¶11 Accordingly, we dismiss the petition for review as untimely filed without 

good cause shown. 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 request for 

corrective action under VEOA and USERRA. 

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 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board