                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-2052


TIMOTHY WINEY,

                    Plaintiff - Appellant,

             v.

JAMES MATTIS, Secretary of Defense,

                    Defendant - Appellee.



Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:17-cv-00325-LMB-JFA)


Submitted: January 31, 2018                                  Decided: February 22, 2018


Before TRAXLER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Timothy Winey, Appellant Pro Se. R. Trent McCotter, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM

       Timothy Winey appeals the district court’s dismissal on summary judgment of his

claims against the Secretary of Defense brought under Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e - 2000e-17 (2012), the Rehabilitation Act, 29 U.S.C.A. §§ 701-

796 (West 2008 & Supp. 2017), the Whistleblower Protection Act, 5 U.S.C.A. §§ 1214,

1221, 2302 (West 2007 & Supp. 2017), the Privacy Act, 5 U.S.C. § 552a (2012), and the

Federal Records Act, 44 U.S.C.A. §§ 3101-3107 (West 2007 & Supp. 2017). The district

court held that Winey failed to properly exhaust his Title VII and Rehabilitation Claims,

that his Privacy Act claim was time-barred, that Winey could not consolidate this case

with a Whistleblower Protection Act claim pending before the MSPB, and that the

Federal Records Act does not create a private right of action. We affirm.

       We review de novo the district court’s order granting summary judgment. Henry

v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).          A party must exhaust

administrative remedies before bringing suit under Title VII and the Rehabilitation Act.

Pueschel v. United States, 369 F.3d 345, 352–53 (4th Cir. 2004); see 42 U.S.C. § 2000e-

16(c) (2012); 29 U.S.C. § 794a(a)(1) (2012).         A federal employee subjected to a

discharge or demotion may appeal the agency’s decision to the Merit Systems Protection

Board (“MSPB”), and “may claim, among other things, that the agency discriminated

against [him] in violation of a federal statute.” Kloeckner v. Solis, 568 U.S. 41, 43

(2012); see 5 U.S.C. § 7702(a)(1)(B) (2012) (listing applicable federal discrimination

statutes, including Title VII and the Rehabilitation Act).



                                             2
       Winey does not contest that he failed to timely refile an appeal to the MSPB of an

adverse agency decision on his claims that he was terminated due to his disability and as

retaliation for prior EEO activity. He argues instead that his untimely filing should be

excused. The district court found that the MSPB properly declined to excuse Winey’s

untimely filing. The factors the MSPB has identified as relevant to whether a good cause

exists to excuse an untimely refiling include:

       the appellant’s pro se status; the timeliness of the initial appeal; the
       appellant’s demonstrated intent throughout the proceedings to refile the
       appeal; the length of the delay in refiling; confusion surrounding and
       arbitrariness of the refiling deadline; the number of prior dismissals without
       prejudice; the agency’s failure to object to the dismissal without prejudice;
       and the lack of prejudice to the agency in allowing the refiled appeal.

Sherman v. U.S. Postal Serv., No. SF-0752-09-0327-I-5, 2012 WL 2614413 (M.S.P.B.

July 5, 2012).

       Winey’s delay in refiling was substantial.       There was also no confusion or

arbitrariness surrounding the refiling deadline, as the MSPB Administrative Law Judge

(“ALJ”) explicitly explained the 180-day refiling deadline and the consequences of

failing to comply. The MSPB therefore found no good cause to excuse Winey’s untimely

refiling.

       The district court also determined that the MSPB properly rejected Winey’s

contention that his 18-month delay in refiling should have been excused because of the

alleged misconduct of his attorney. The MSPB found that Winey was responsible for any

mistakes or omissions of his chosen counsel because Winey did not show that any

misconduct by counsel thwarted Winey’s diligent efforts to pursue his appeal. See


                                             3
Helmstetter v. Dep’t of Homeland Sec., No. PH-0752-04-0067-I-2, 2007 WL 1732484

(M.S.P.B. June 7, 2007).      The MSPB noted that Winey was registered to receive

electronic filings, and that the ALJ explicitly informed Winey orally and in writing of the

refiling deadline and the consequences of missing it. In light of these facts, the MSPB

dismissal of Winey’s mixed case on procedural grounds was not erroneous. Because

Winey’s mixed case was dismissed by the MSPB on procedural grounds, the district

court properly dismissed Winey’s Title VII and Rehabilitation Act claims for failure to

exhaust.

       As to Winey’s other claims, on appeal he does not challenge the district court’s

determination that his Privacy Act claim is barred by the two-year statute of limitations,

and that the Records Act does not create a private right of action. The district court also

correctly determined that it could not consolidate this case with a Whistleblower

Protection Act claim pending before the MSPB. See Fed. R. Civ. P. 42(a) (providing for

the consolidation of “actions before the court”). We therefore affirm the district court’s

grant of summary judgment and deny Winey’s motion to disqualify Mattis’ counsel. We

dispense with oral argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would not aid the decisional

process.

                                                                              AFFIRMED




                                            4
