Tami L. Williams v. Department of the Air Force ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMI L. WILLIAMS, DOCKET NUMBER
Appellant, SF-0752-12-0072-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: August 14, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Tami L. Williams, Anchorage, Alaska, pro se.
Robert B. Stirk, Esquire, Joint Base Andrews, Maryland, 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 her appeal as untimely filed. For the reasons set forth below, the
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
¶2 The administrative judge’s February 1, 2012 initial decision, dismissing the
appellant’s removal appeal as untimely filed, stated that it would become final on
March 7, 2012, unless a petition for review was filed with the Board by that date.
Initial Appeal File (IAF), Tab 17, Initial Decision (ID) at 1, 5. The initial
decision further informed the appellant of how and where to file the petition for
review. ID at 5-6.
¶3 On May 31, 2014, the appellant electronically filed a document with the
Board’s Western Regional Office captioned as a request to reopen an appeal
dismissed without prejudice. Petition for Review (PFR) File, Tab 1. Because
there was an initial decision issued in the appellant’s removal appeal, the Western
Regional Office forwarded the pleading to the Clerk of the Board as a petition for
review. PFR File, Tab 2 at 1. The Clerk of the Board informed the appellant that
the February 1, 2012 initial decision did not dismiss the appeal without prejudice
but dismissed the appeal as untimely filed. Id. The Clerk of the Board further
advised the appellant that her petition for review appeared untimely filed and
provided her an opportunity to submit the required motion to (1) accept the filing
as timely, and/or (2) waive the time limit for good cause, id. at 1-2, but the
appellant has not responded.
¶4 The Board has denied a waiver of its filing deadline if a good reason for the
delay is not shown, even when the delay is brief and the appellant is pro se. See
Jacks v. Department of the Air Force, 114 M.S.P.R. 355, ¶ 10 (2010). In this
case, the appellant’s delay of approximately 26 months was not brief but was
significant. See Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 13 (2011)
(finding a 7-month delay in filing an appeal was significant). Moreover, the
appellant has not responded to the Clerk’s notice regarding timeliness and did not
allege facts in her petition for review to otherwise support a finding of good
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cause for its untimeliness. PFR File, Tab 1. She alleges, rather, that: (1) she has
been looking for another position with the Department of Defense but has not
been selected; (2) some unnamed individuals within the agency have been
“smearing [her] name”; (3) the agency is advertising her former position at a
different location; and (4) her removal was improper. Id. at 3. These arguments
are inapposite to the issue of timeliness. See Smith v. Department of the Army,
105 M.S.P.R. 433, ¶ 7 (2007). Accordingly, the Board finds no good cause for
the filing delay and DISMISSES the petition for review as untimely filed.
¶5 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 underlying appeal as
untimely filed. 5 C.F.R. § 1201.113(b).
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).
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.