                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KAREN R. EARLE ,                                DOCKET NUMBER
                   Appellant,                        DC-0752-15-0811-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 19, 2016
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Carteia V. Basnight, Hampton, Virginia, for the appellant.

           Timothy M. O'Boyle, Esquire, Hampton, Virginia, 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 her appeal with prejudice for failure to prosecute. For the reasons 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).

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


                                       BACKGROUND
¶2         On June 1, 2015, the appellant filed an appeal of the agency’s decision
     removing her from her GS-9 Contract Specialist Position for failure to follow
     instructions and conduct unbecoming of a Federal employee. Initial Appeal File
     (IAF), Tab 1; Tab 5 at 9, 12-14. The appellant alleged, among other things, that
     she was subjected to a hostile work environment, given assignments in an
     unreasonable manner, denied a fair opportunity to perform her duties, and
     retaliated against for prior equal employment opportunity (EEO) activity. IAF,
     Tab 1 at 8. The administrative judge afforded the appellant several opportunities
     to submit evidence, attend prehearing conferences, and otherwise argue the
     appeal. IAF, Tab 7 at 1, 3; Tab 9; Tab 11, Initial Decision (ID). However, the
     administrative judge ultimately dismissed the appeal for failure to prosecute due
     to the appellant’s failure to respond to at least three orders.       ID.   The initial
     decision notified the appellant of how to properly file a petition for review and
     specifically stated that it would become final on March 4, 2016, unless a petition
     for review was filed by that date. ID at 3-4.
¶3         On March 14, 2016, the appellant, through her attorney, filed a petition for
     review, which listed numerous reasons for her failure to prosecute the original
     appeal, including her attorney’s serious injury on November 16, 2015, which
     required medical treatment, and the death or serious illnesses of several family
     members of her attorney. 2 Petition for Review (PFR) File, Tab 1 at 4-6. In a
     March 22, 2016 notice, the Clerk of the Board informed the appellant that her
     petition for review was untimely filed because it was not filed on or before March


     2
       The appellant filed her petition for review by facsimile transmittal. The pleading
     bears a facsimile transmittal machine imprinted date of March 14, 2016. PFR File,
     Tab 1 at 4. The pleading also bears a stamp indicating that it was received by the Clerk
     of the Board at 7:53 a.m. on March 15, 2016. The Board’s regulations provide that the
     filing date of a pleading served by facsimile transmittal is the date of the facsimile.
     5 C.F.R. § 1201.11(1). Thus, we will consider March 14, 2016, as the filing date.
                                                                                      3


     4, 2016. PFR File, Tab 2 at 1. The Clerk’s notice informed the appellant that she
     could file a motion signed under penalty of perjury or an affidavit showing either
     that the petition was timely filed or that good cause existed to waive the filing
     deadline. Id. In response, the appellant filed a motion to waive the deadline for
     good cause, and the agency filed a response to the motion. PFR File, Tab 3 at 2-
     4; Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        A petition for review must be filed within 35 days after the date of issuance
     of the initial decision or, if the petitioner shows that the initial decision was
     received more than 5 days after the date of issuance, within 30 days after the date
     the petitioner received the initial decision. 5 C.F.R. §1201.114(e). To establish
     good cause for an untimely filing, 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).              To
     determine whether an appellant has shown good cause, the Board will consider
     the length of the delay, the reasonableness of her excuse and her showing of due
     diligence, whether she is proceeding pro se, 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
     that similarly shows a causal relationship to her inability to timely file her
     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).
¶5        The appellant’s petition for review was due on March 4, 2016, and her
     untimely petition was filed on March 14, 2016. ID at 3; PFR File, Tab 1. In her
     motion to waive the deadline, the appellant’s counsel alleged that in the process
     of reviewing emails on March 9, she looked at an email dated January 29, 2016,
     which informed her that the initial decision was available in the e-Appeal
     Repository. PFR File, Tab 3 at 4. She claimed to have experienced technical
                                                                                            4


     difficulties in accessing the system on March 9, which were resolved by the
     Board’s Technical Support staff. Id. at 4, 8. However, this does not change the
     determinative fact that she received the initial decision on January 29, 2016, but
     chose not review it until March 9, 2016. Id.
¶6         Board documents served electronically on registered e-filers are deemed
     received on the date of electronic submission. 5 C.F.R. §1201.14(m)(2). When a
     statute or regulation “deems” something to be done or to have been done, the
     event is considered to have occurred whether or not it actually did.            Lima v.
     Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Notice of the initial
     decision was served on the parties electronically on January 29, 2016, and the
     appellant’s counsel admitted to receiving that email and to not attempting to open
     the initial decision in the e-Appeal Repository until March 9, 2016. ID at 9;
     PFR File, Tab 3 at 4.      If there was a technical problem with the appellant’s
     counsel’s e-Appeal access, it should have been identified and addressed within
     the 35 day time period for filing a petition for review. The appellant’s counsel
     has not alleged any misfortune during the filing period that interfered with her
     ability to review the initial decision or file the petition for review. PFR File,
     Tab 3.   Counsel’s many listed problems occurred on or before November 16,
     2015, and she has not explained any continuing impact that they had on her
     ability to file a petition for review several months later. PFR File, Tab 3 at 3-4.
     Therefore, we conclude that the appellant has not demonstrated good cause to
     waive the filing deadline. 3




     3
       Although the appellant was represented by an attorney, and it is the attorney’s actions
     that we are considering, absent unusual circumstances not present here, an appellant is
     responsible for the errors of her chosen representative. Sofio v. Internal Revenue
     Service, 7 M.S.P.R. 667, 670 (1981); see Murphy v. Department of the Treasury,
     91 M.S.P.R. 239, ¶ 7 (2002), aff’d, 85 F. App’x 729 (Fed. Cir. 2003).
                                                                                        5


¶7         As noted, in evaluating whether good cause exists for an untimely petition
     for review, the length of delay, the reasonableness of the excuse, whether the
     appellant is pro se, and considerations beyond the appellant’s control that
     interfere with a timely filing are relevant. Moorman, 68 M.S.P.R. at 62-63. The
     appellant’s delay of 9 days, while not a vast amount of time, is not a de minimis
     period either. See Hodges v. Office of Personnel Management, 101 M.S.P.R. 212,
     ¶ 14 (2006) (holding that an appellant’s 23-day refiling delay was “not
     particularly de minimis . . . [and] not particularly lengthy”); Bailey v. U.S. Postal
     Service, 85 M.S.P.R. 105, ¶¶ 2, 4-6 (2000) (finding that an appellant did not show
     good cause for his 4-day delay in refiling an appeal). Furthermore, the appellant
     failed to allege any circumstances beyond her control that prevented her from
     filing on time, she was represented by counsel, and she did not provide any
     reasonable explanations for the delay. These combined factors make the delay
     inexcusable.
¶8         Therefore, the Board finds the petition for review to be untimely filed
     without good cause shown. Accordingly, we dismiss the petition for review.
¶9         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 removal appeal.

                        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 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.
      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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
