UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

JOSEPH BROWN, Appellant,

v.
DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY

- 4324

- 14

- 0161

- I

- 1

DATE: November 8, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Nathaniel Watty , Saint Albans, Ne w 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 f or lack of jurisdiction his request for corrective action under the Veterans Employment Opportunity Act (VEOA) and the Uniformed Services Employment and R eemployment Rights Act of 1994 (USERRA) . For the reasons

1 A nonprecedential order is one that the Board has determined do es not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 con trast, 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 fo r review is DISMISSED as untimely filed without good cause shown

. 5 C.F.R. § 1201.114 (e), (g).

BACKGROUND ¶2 The appellant, a preferenc e 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

. H e 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 initi al 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 t he appellant provided. IAF, Tab 6 , Tab 19. ¶4 Despite this notice, the a ppellant, th r ough his representative, filed a petition
for review on May 19, 2016 , thirteen day s 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 t he 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 indicat es 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 n otificati on s because his personal email account of record was compromised by an Office of Personnel3

Management data breach and subject to persistent hacking

. Id. at 5. The appellant’s representative concedes that t he 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 ARGUME NTS ON REVIEW ¶5 T he 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 pro vide a basis for review, as it is un timely filed without good

cause shown. ¶6 A petition for review must be filed within 35 day s after the date of issuance
of the initial decision or within 30 day s after the date that the appellant received
the initial deci sion 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. T he record confirms that on April 1, 2016, the Board electronically served a copy of the initial decision on the appellant’s representative at hi s 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 t hat 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 ti mely filed.4

Board imputes service on a designated represe ntative to the party. Lima v. Department of the Air Force , 101 M.S.P.R. 64 , ¶ 5 (2006)

. T herefore , we find that the appellant received the ini tial decision on April 1, 201 6, 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, h is 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 ca use, 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 affect ed 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 decisi on 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 electr onically 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 decisi on
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 recei ved 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 hi s 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 establis hed good cause for the untimely filing. ¶11 Accordingly, we dismiss the petition for review as untimely filed withou t 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

rem ains the final decision of the Board regarding the appellant’s request for
corrective action under VEOA and USERRA

.

NOTICE TO THE APPELL ANT 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 204396

The court must receive your request for review n o 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 h eld that normally it does not have the authority to waive this statutory de adline 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 F ederal law that gives y ou this right. It is found in

t itl e 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 pa rticular relevance
is the court’ s “ Guide for Pro S e Petitioners and Appellants,” whic h is contained
within the court’ s Rules of Practice , and Forms 5, 6, and 11. If you are interested in securing pro bono representation fo r 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 app ellants 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