                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RAYMOND KOSTROMIN,                              DOCKET NUMBER
                 Appellant,                          AT-0752-14-0244-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: November 5, 2014
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John M. Brown and Charles E. Day, Augusta, Georgia, for the appellant.

           Neil S. Deol, Esquire, Decatur, Georgia, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his termination appeal for lack of jurisdiction. For the reasons set forth




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


     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           Effective October 5, 2000, the agency appointed the appellant to an
     excepted      service   position   as   a   physician,   under   special     appointment
     authority 38 U.S.C. § 7401(1). Initial Appeal File (IAF), Tab 7 at 6. The agency
     terminated the appellant’s employment, effective October 28, 2013, based on two
     charges: (1) receiving services that he was not eligible to receive; and
     (2) unprofessional conduct. IAF, Tab 1 at 10.
¶3           The appellant filed an initial appeal, arguing that the agency committed
     procedural errors, failed to fairly consider the Douglas factors, 2 and may have
     terminated the appellant in retaliation for whistleblowing. IAF, Tab 1 at 6. The
     agency filed a motion to dismiss, arguing that the Board lacks jurisdiction over
     Veterans Health Administration (VHA) professionals appointed under 38 U.S.C.
     § 7401(1) because they are not employees as defined by 5 U.S.C. § 7511(b)(10)
     and, thus, are not afforded 5 U.S.C. chapter 75 appeal rights. IAF, Tab 7. In
     response, on January 14, 2014, the administrative judge ordered the appellant to
     file argument and evidence showing that the Board had jurisdiction to review his
     termination and his whistleblower reprisal claim. IAF, Tab 10. On January 15,
     2014, the appellant filed three identical copies of his response to the January 14,
     2014 show cause order; however, his submission did not address the issues raised
     by the administrative judge’s order. IAF, Tab 11.
¶4           On January 27, 2014, the administrative judge dismissed the appellant’s
     appeal for lack of jurisdiction, without holding the requested hearing.
     IAF, Tab 12, Initial Decision (ID).         She determined that the appellant lacks
     adverse action appeal rights under 5 U.S.C. chapter 75 because he held a position

     2
         See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
                                                                                         3


     within the VHA that has been excluded from the competitive service by or under
     a provision of Title 38. ID at 3; see 5 U.S.C. § 7511(b)(10). In addition, she
     denied the appellant’s whistleblower reprisal claim because he failed to show
     exhaustion of his administrative remedies before the Office of Special Counsel.
¶5         On March 29, 2014, the appellant filed an untimely petition for review.
     Petition for Review (PFR) File, Tab 1. In response to a notice from the Clerk of
     the Board, PFR File, Tab 4, the appellant has filed a motion to accept his petition
     for review as timely filed or to waive the time limit, PFR File, Tab 5. The agency
     has responded in opposition. PFR File, Tab 6.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶6         Regarding the timeliness issue, the appellant does not dispute that he had
     until March 3, 2014, to file his petition for review. See PFR File, Tab 5 at 4.
     Rather, the appellant argues that: (1) his petition for review was not untimely
     because he filed it on January 15, 2014, well before the deadline; and (2) any
     untimeliness should be excused because he “only recently came to realize” that
     the agency failed to advise him that he lacked the right to appeal his termination
     to the Board. Id.
¶7         We do not accept the appellant’s petition for review as timely.          To be
     timely, a petition for review must be filed within 35 days of the date of the initial
     decision’s issuance or within 30 days after receipt, if the initial decision was
     received more than 5 days after the date of issuance. 5 C.F.R. § 1201.114(e).
     The appellant’s January 15, 2014 pleading cannot serve as his petition for review
     of the initial decision, which was issued on January 27, 2014. 3 A petition for



     3
       The appellant argues that “I do not feel that I should be held accountable for a key
     document [the January 15, 2014 pleading] being withheld from my official file by your
     own clerical staff.” PFR File, Tab 5 at 4. This document was not “withheld.” On
     January 15, 2014, the Atlanta Regional Office received the three copies of the
     appellant’s correspondence dated and faxed the same day. IAF, Tab 11. The
                                                                                           4


     review is a pleading in which a party contends that an initial decision was
     incorrectly decided in whole or in part. 5 C.F.R. § 1201.114(a)(1). However, the
     appellant’s January 15, 2014 correspondence was filed in response to the
     administrative judge’s January 14, 2014 show cause order, not to the initial
     decision, which was not issued for another 12 days. See IAF, Tabs 10-12. Thus,
     the Clerk of the Board has properly treated the appellant’s March 29, 2014
     pleading as his petition for review. See PFR File, Tab 4. Therefore, because the
     appellant did not file his petition for review until March 29, 2014,
     PFR File, Tab 1, we find that his petition for review is untimely by 26 days.
¶8         As explained by the Clerk of the Board, PFR File, Tab 4 at 2, the Board will
     waive its filing deadline only upon a showing of good cause, regardless of how
     minimal the delay, 5 C.F.R. § 1201.114(g); see, e.g., Lands v. Department of the
     Air Force, 95 M.S.P.R. 593, ¶¶ 5-7 (2004) (filing even 1-day late requires a
     showing of good cause). To establish good cause for an untimely filing, a party
     must show that he 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).         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 which similarly shows a causal
     relationship to his inability to timely file his 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).



     submission was added to the appellant’s file, and the administrative judge considered it
     in determining the outcome of the initial appeal. ID at 3.
                                                                                        5


¶9          The appellant’s allegedly “compelling reason” for the 26-day delay in filing
      his petition for review, PFR File, Tab 5 at 4, is insufficient to excuse its
      untimeliness. The appellant has filed a motion requesting a waiver of the filing
      deadline on the basis that it was unfair or unethical for the agency not to
      encourage him to abandon his decision to appeal his termination. PFR File, Tab 5
      at 4, 10. However, the appellant’s argument is premised entirely on two facts
      known to him even before he filed his initial appeal, namely that: (1) he sent two
      emails to the Chief of Human Resources to notify the agency of his intention to
      appeal his termination to the Board, and (2) the agency did not take any steps to
      dissuade him from taking that course of action. Id. Thus, the appellant has failed
      to present any new evidence to justify his 26-day delay in filing his petition for
      review. See, e.g., Harris v. Department of Agriculture, 54 M.S.P.R. 211, 214
      (1992) (finding that the appellant’s allegation of “recently discovered facts” were
      not good cause for waiving the time limit for filing a petition for review where
      the appellant failed to show why his allegations could not have been raised prior
      to the expiration of the time limit for filing a petition for review).
¶10         Furthermore, the appellant’s belated recognition of a potential argument is
      not    a    basis     for    review.         See     Jones     v.    Department   of
      Transportation, 69 M.S.P.R. 21, 27 (1995) (explaining that the discovery of, or
      the decision to pursue, a new legal argument after the period for filing a petition
      for review has expired does not constitute good cause for the delay in filing the
      petition for review), aff’d, 111 F.3d 144 (Fed. Cir. 1997) (Table). The appellant
      claims that he felt “betrayed” by the agency for not notifying him that employees
      hired pursuant to 38 U.S.C. § 7401(1) lack adverse action appeal rights before the
      Board. PFR File, Tab 5 at 10. The appellant also alleges that this betrayal is only
      recently known to him, but provides no date as to when this realization occurred.
      Id.   However, the administrative judge’s January 14, 2014 show cause order
      notified the appellant, prior to the close of the record, that employees hired
                                                                                              6


      pursuant to 38 U.S.C. § 7401(1) lack adverse action appeal rights before the
      Board. IAF, Tab 10. Also, the appellant’s January 15, 2014 response to the show
      cause order indicates that he had the information underlying his “betrayal” claim
      on or before January 15, 2014, IAF, Tab 11, 4 over 2 months before raising the
      argument as a basis for excusing his untimely filing of his petition for review,
      PFR File, Tab 1 at 2, Tab 5 at 5. Therefore, the appellant’s representation that he
      “only recently came to realize” the effect of the agency’s decision not to advise
      him to abandon his Board appeal does not show that he exercised due diligence or
      ordinary prudence.
¶11         Finally, the appellant has failed to offer any other grounds for excusing the
      untimely filing of his petition for review.        The appellant’s discussion of the
      timeliness of his initial appeal is immaterial to whether his petition for review is
      timely. In addition, the appellant is an e-filer and makes no claim that he failed
      to receive the initial decision, which indicated that the “initial decision will
      become final on March 3, 2014, unless a petition for review is filed by that date.”
      ID at 4 (emphasis in original). Although the appellant states that he is unfamiliar
      with the Board’s appeals process, the appellant is not pro se, IAF, Tab 5; PFR
      File, Tab 6, 5 and he has offered no argument or evidence showing that the delay
      was caused by circumstances outside of his control. Therefore, the appellant has
      failed to show good cause for the 26-day delay in filing his petition for review.



      4
        In the appellant’s January 15, 2014 pleading, he stated, “It’s a shame a physician isn’t
      afforded the same protection rights as any other employee.” IAF, Tab 11.
      5
         The appellant pursued a Board appeal upon advice of his union representative. The
      appellant states that “my union reps thought that after everything that the VA had put
      me thr[ough,] [the Board appeal process] was my best option.” PFR File, Tab 1 at 2.
      Even if the delay is somehow attributed to the improper advice of his representative,
      this does not establish good cause.            Sofio v. Internal Revenue Service,
      7 M.S.P.R 667, 670 (1981) (explaining that an appellant is responsible for the errors of
      his chosen representative).
                                                                                        7


¶12        Accordingly, we dismiss the petition for review as untimely filed. 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 of the appeal for lack of jurisdiction.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States 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,
      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 United States 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
      United States 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.
                                                                            8


     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
