                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARLA JEAN NELSON,                              DOCKET NUMBER
                  Appellant,                         DC-0752-13-6569-I-1

                  v.

     NATIONAL COUNCIL ON                             DATE: August 15, 2014
       DISABILITY,
                   Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Carla Jean Nelson, Oxon Hill, Maryland, pro se.

           Brenda F. Ward, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal as untimely filed without good cause.           For the reasons
     discussed below, we GRANT the appellant’s petition for review and REMAND


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the case to the regional office for further adjudication in accordance with this
     Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2            The agency employed the appellant as an Administrative Specialist. Initial
     Appeal File (IAF), Tab 8 at 34.        On May 7, 2013, the agency proposed her
     removal based on the charge of “conviction of embezzlement.” Id. at 14-17. The
     appellant orally responded to the charge. See id. at 11. Nevertheless, the agency
     removed the appellant, effective July 1, 2013. Id. at 10-13.
¶3            The appellant filed an appeal of her removal with the Board on
     September 15, 2013. IAF, Tab 1. She alleged that the agency violated her rights
     by committing harmful procedural error and engaging in a prohibited personnel
     practice due to whistleblowing activity. Id. at 4. The appellant indicated that she
     had filed a complaint with the Office of Special Counsel (OSC), also on
     September 15, 2013, the day of her Board appeal. Id. at 5; see also IAF, Tab 2
     at 10-17 (completed OSC questionnaire).
¶4            The agency responded to the appeal with a motion to dismiss the case as
     untimely filed. IAF, Tab 8 at 4-7. The administrative judge issued a timeliness
     order.     IAF, Tab 11.    According to this order, the appeal appeared untimely
     because it had not been filed within 30 days of the appellant’s removal. Id. at 2.
     The judge directed the appellant to submit argument or evidence that her appeal
     was timely, or that good cause existed for its untimeliness. Id. at 3-4.
¶5         The appellant responded to the timeliness order, again alleging that she had
     engaged in whistleblowing activity. IAF, Tab 12 at 1-3. She also argued that
     good cause existed for her filing more than 30 days after her removal. Id. at 2-3.
     According to the appellant, she had been misled by a confidant at the agency
     regarding her chances before the Board, and she had suffered from depression
     after her removal. Id.
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¶6         The administrative judge dismissed the appeal, finding that it was untimely
     and that the appellant had failed to establish good cause for this untimeliness.
     IAF, Tab 14, Initial Decision (ID). The appellant has filed a petition for review,
     Petition for Review (PFR) File, Tab 1, and the agency has filed a response, PFR
     File, Tab 4.
     To the extent that the appellant sought to bring her case as an adverse action
     appeal, she failed to present good cause for her untimely filing, and the
     administrative judge’s dismissal was proper.
¶7         An appeal must generally be filed no later than 30 days after the effective
     date of the action being appealed, or 30 days after the appellant’s receipt of the
     agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). An appellant
     bears the burden of proof regarding the timeliness of her appeal.        5 C.F.R.
     § 1201.56(a)(2)(ii).   If the appeal is untimely, it will be dismissed unless the
     appellant shows good cause for the delay. 5 C.F.R. § 1201.22(c).
¶8         To establish good cause for the untimely filing of an appeal, 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). In determining whether an appellant has shown good cause, the
     Board will consider whether she is proceeding pro se, the length of the delay, the
     reasonableness of her excuse and her showing of due diligence, 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).
¶9         In her petition, the appellant alleges that she did establish good cause for
     her untimeliness, and that the administrative judge erred in finding otherwise.
     PFR File, Tab 1 at 1-3.      She asserts that the administrative judge failed to
     adequately consider all the applicable reasons for her untimely filing, including
                                                                                            4

      her lack of legal representation, her depression, her inability to obtain medical
      treatment for that depression due to financial constraints, and her allegation that
      an agency attorney misled her with fraudulent statements relating to her appeal.
      Id. at 2-3. The appellant also presented new evidence, 2 consisting of three sworn
      declarations.   Id. at 17-20. However, under 5 C.F.R. § 1201.115, the Board will
      not consider evidence submitted for the first time with the petition for review
      absent a showing that it was unavailable before the record was closed despite the
      party’s due diligence.    Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
      (1980). Because the appellant has made no such showing, we decline to consider
      her newly submitted evidence.
¶10         The appellant is proceeding pro se.        Nonetheless, the appellant has not
      disputed that she filed her removal appeal approximately 46 days late. Compare
      IAF, Tab 2 at 3 (removal notice effective July 1, 2013), with IAF, Tab 1 at 2
      (Board appeal dated September 15, 2013). The administrative judge found this
      delay significant and we agree.       See ID at 5; see also Winfrey v. National
      Archives and Records Administration, 88 M.S.P.R. 403, ¶ 6 (2001) (a 48-day
      delay in filing an appeal was not minimal and did not provide a basis for waiving
      the filing deadline).
¶11         We also agree that the appellant failed to show that she exercised due
      diligence or ordinary prudence under the particular circumstances of her case.


      2
        The appellant also submitted telephone records and an email with her petition. PFR
      File, Tab 1 at 7-13. This evidence is not new, as she previously submitted it with her
      response to the timeliness order. IAF, Tab 12 at 6-12. The appellant argues that the
      phone records contradict a sworn statement provided by the agency. PFR File, Tab 1
      at 3. However, the administrative judge found that, even if the appellant’s allegations
      about the alleged phone calls were true, it did not excuse the appellant’s untimeliness.
      ID at 5. We agree. The appellant also argues that the email, addressed to her and from
      the deciding official, was inappropriate contact during the Board’s proceedings. PFR
      File, Tab 1 at 2. Yet, she failed to provide any argument as to how this email, in which
      the deciding official offered to meet with the appellant if she wished, had any bearing
      on her untimeliness or otherwise prejudiced her appeal. Accordingly, we find the
      evidence the appellant resubmitted with her petition for review inconsequential.
                                                                                        5

      The appellant alleged that her untimeliness can be attributed to her reliance on
      misleading information from a confidant who was also an attorney for the agency.
      IAF, Tab 12 at 2-3. According to the appellant, this confidant advised her that a
      Board appeal would be costly and complicated, with little chance for a positive
      result. Id. at 2. Nevertheless, the administrative judge determined that, even if
      true, this information would not have persuaded a reasonable person not to file a
      Board appeal. ID at 5. Although the appellant expressed disagreement in her
      petition for review, PFR, Tab 1 at 4, she provided no basis to reverse the
      administrative judge’s conclusion.
¶12        The appellant also alleged that her untimeliness can be attributed to
      depression. IAF, Tab 12 at 2-3. To establish that an untimely filing was the
      result of an illness, an appellant must: (1) identify the time period during which
      she suffered from the illness; (2) submit medical evidence showing that she
      suffered from the alleged illness during that time period; and (3) explain how the
      illness prevented her from timely filing her appeal or a request for an extension of
      time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). Although
      medical evidence is preferable, otherwise supportive and corroborating evidence
      may suffice if medical evidence is unavailable. Id. at n.*. The administrative
      judge’s timeliness order included these requirements, directing the appellant to
      respond accordingly.    IAF, Tab 11 at 4.      However, the appellant’s response
      contained only bare unsworn assertions that she suffered from depression after
      her removal, IAF, Tab 12 at 2-3, along with similarly bare and unsworn assertions
      of depression-like symptoms in declarations from an acquaintance and a niece, id.
      at 13-14.
¶13        Even if she had established that she suffered from depression, the appellant
      failed to meet her burden of proving that her untimely filing was the result of
      illness because she did not identify the relevant period during which she suffered
      from depression and she provided no substantive explanation of how depression
      prevented her from timely filing her appeal or a request for an extension. See
                                                                                        6

      Jimenez v. Social Security Administration, 100 M.S.P.R. 287, ¶ 6 (2005) (finding
      no good cause for untimely filing where appellant failed to identify the time
      period of her alleged illnesses or how those illnesses prevented her from timely
      filing). On review, the appellant reiterates her claim that depression caused her
      to have difficulty focusing and impaired her judgment. PFR File, Tab 1 at 2-3.
      However, we agree with the administrative judge’s conclusion that these
      allegations failed to meet the appellant’s burden. See ID at 3-4.
¶14        Finally, the appellant’s petition argues that the administrative judge erred in
      failing to consider whether the agency was harmed by her untimeliness. PFR
      File, Tab 1 at 2. The Board, though, only determines whether the agency would
      be harmed if good cause has been demonstrated.          Womack v. Merit Systems
      Protection Board, 798 F.2d 453, 456 (Fed. Cir. 1986). Where an appellant fails
      to establish good cause for her untimely filing, an argument that the agency
      would not be prejudiced is irrelevant. Id.
¶15        Based on the above and to the extent that the appellant sought to bring her
      case as an adverse action appeal, we affirm the dismissal of her appeal as
      untimely and without good cause.
      The administrative judge erred in failing to determine if the appeal was a timely
      individual right of action (IRA) appeal, not subject to the timeliness requirements
      of 5 C.F.R. § 1201.22(b).
¶16        An employee who has been subjected to an action appealable to the Board
      and who alleges that she has been affected by a prohibited personnel practice
      other than a claim of discrimination under 5 U.S.C. § 2302(b)(1) may elect to
      pursue a remedy through one, and only one, of the following remedial processes:
      (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant
      to the provisions of the negotiated grievance procedure; or (3) a complaint
      following the procedures for seeking         corrective action      from the OSC
      under 5 U.S.C. §§ 1211–1222.        Edwards v. Department of Air Force, 120
      M.S.P.R. 307, ¶ 12 (2013) (citing 5 U.S.C. § 7121(g)).       Generally, whichever
                                                                                            7

      remedy is sought first by an aggrieved employee under section 7121(g) is deemed
      an election of that procedure and precludes pursuing the matter in either of the
      other two forums. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14
      (2013). An employee’s election, however, will not be binding if it is not knowing
      and informed.     Id.   Accordingly, when an agency takes an action without
      informing the appellant of her procedural options under section 7121(g) and of
      the preclusive effect of electing one of those options, any subsequent election by
      the appellant is not binding. Id., ¶ 17.
¶17         Here, the appellant is not covered by a bargaining unit or negotiated
      grievance procedure. IAF, Tab 8 at 8. Thus, she was left with the options of
      proving that the Board has jurisdiction over her appeal as (1) a chapter 75 adverse
      action appeal, or (2) an IRA appeal.         See Edwards, 120 M.S.P.R. 307, ¶ 13
      (discussing these two options for adjudicating a whistleblower claim arising out
      of an adverse action).       The appellant’s appeal indicates that she filed a
      whistleblower complaint with OSC on the same day as her Board appeal, but at a
      later time of day. IAF, Tab 1 at 5, Tab 2 at 10-17. It thus appears that the
      appellant elected to file her Board appeal first. Nevertheless, we find that the
      election was not knowing and informed because the agency’s decision letter did
      not inform the appellant of the preclusive effect of first filing a Board appeal
      before filing an OSC complaint. IAF, Tab 2 at 4-5. Therefore, the administrative
      judge should determine on remand whether the Board has jurisdiction over the
      appellant’s whistleblower claims as an IRA appeal. 3


      3
       The Board has jurisdiction over an IRA appeal if an appellant has exhausted her
      administrative remedies before OSC and makes nonfrivolous allegations that: (1) she
      engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C.
      § 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure was a contributing
      factor in the agency’s decision to take or fail to take a personnel action as defined by
      5 U.S.C. § 2302(a). 5 U.S.C. § 1214(a)(3); Yunus v. Department of Veterans Affairs,
      242 F.3d 1367, 1371 (Fed. Cir. 2001).
                                                                                       8

¶18        We further find that the appellant’s appeal was timely filed as an IRA
      appeal. Under 5 U.S.C. § 1214(a)(3), an appellant may file an IRA appeal with
      the Board once OSC closes its investigation into her complaint and no more than
      60 days have elapsed since notification of the closure was provided to her or
      120 days has elapsed since the appellant sought corrective action from OSC and
      she has not been notified by OSC that it shall seek corrective action on her
      behalf. Wells v. Department of Homeland Security, 102 M.S.P.R. 36, ¶ 6 (2006).
      The record shows that the appellant’s appeal was premature at the time of filing,
      if it is deemed an IRA appeal. See generally Jundt v. Department of Veterans
      Affairs, 113 M.S.P.R. 688, ¶ 6 (2010) (affirming the dismissal of an IRA appeal
      as premature where the appellant filed her complaint with OSC after her initial
      appeal with the Board, but before the administrative judge issued an initial
      decision to dismiss). Nevertheless, the Board’s practice is to adjudicate an appeal
      that was premature when it was filed but becomes ripe while pending with the
      Board. Id., ¶ 7. Because it appears that the appellant filed her whistleblower
      complaint with OSC on September 15, 2013, IAF, Tab 2 at 10-17, which is more
      than 120 days ago, her whistleblower retaliation claim is now ripe.
¶19        Based on the above, and to the extent that the appellant sought to bring her
      case as a whistleblower retaliation appeal, we grant the petition for review and
      remand to the regional office for further adjudication as an IRA appeal.        On
      remand the administrative judge should determine whether the appellant has
      established the jurisdictional elements of her IRA appeal.        If the appellant
      satisfies the jurisdictional requirements, then she a the right to a hearing on the
      merits of her whistleblower reprisal claim.
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                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
