Josue Echevarria v. Department of Homeland Security

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSUE L. ECHEVARRIA, DOCKET NUMBER Appellant, AT-0752-21-0244-I-1 v. DEPARTMENT OF HOMELAND DATE: November 8, 2023 SECURITY, Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 McRae Cleaveland , Esquire, and Michael Sheeter , Esquire, Dallas, Texas, for the appellant.

Diana Espinosa , Esquire, Guaynabo, Puerto Rico, for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the appellant’s removal. 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).

A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).

BACKGROUND ¶2 The appellant filed the instant appeal challenging his removal. Initial Appeal File (IAF), Tab 1. On August 17, 2021, the administrative judge issued an initial decision that affirmed the appellant’s removal. IAF, Tab 30, Initial Decision (ID). She found that the agency proved its charges, that the appellant failed to prove his affirmative defense of a due process violation, and that the penalty of removal was reasonable and promoted the efficiency of the service. ID at 5-22. The initial decision informed the appellant how to file a petition for review and stated that it would become final on September 21, 2021, unless a petition for review was filed by that date. ID at 23.

¶3 The appellant, through his designated representative, filed a petition for review on September 28, 2021. Petition for Review (PFR) File, Tab 1; IAF, Tab 11. He does not dispute that his petition for review is 7 days late, but he claims that he believed he had timely filed it and did not realize that it had not been electronically filed through the Board’s e-Appeal system due to “some technical issues.” PFR File, Tab 1 at 4. The agency filed a response, requesting that the petition for review be dismissed as untimely filed without good cause shown. PFR File, Tab 3 at 4-7.

DISCUSSION OF ARGUMENTS ON REVIEW ¶4 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision, or if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and the party’s 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. Id.; see 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 As an e-filer, the appellant is deemed to have received the initial decision on the date of electronic issuance, August 17, 2021. IAF, Tab 1 at 2, Tab 31 at 1; see 5 C.F.R. § 1201.14(m)(2). The appellant filed his petition for review through the Board’s e-Appeal system on September 28, 2021, 7 days past the September 21, 2021 deadline set forth in the initial decision. ID at 23; PFR File, Tab 1. Because the filing appeared untimely, the Board’s e-Appeal system automatically generated questions concerning timeliness, to which the appellant responded that he believed he had timely filed it and did not realize his petition was untimely due to unspecified technical difficulties. PFR File, Tab 1 at 4.

¶6 The Office of the Clerk of the Board issued an acknowledgment letter, instructing the appellant that an untimely filed petition for review must be accompanied by a motion to either accept the filing as timely, and/or waive the time limit for good cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)).

The letter further instructed the appellant that if he wished to file the aforementioned motion, he must include a statement signed under penalty of perjury or an affidavit showing that the petition was either timely filed or good cause existed for the untimeliness. Id. at 1-2. It also included a form for the motion, sworn statement, and affidavit and provided a deadline of October 15, 2021. Id. at 2, 7-8. Despite the instructions contained in the acknowledgment letter, the appellant did not submit a sworn statement, affidavit, or further explanation for the untimely filing.

¶7 As noted above, the appellant claims that he believed that he had timely submitted his petition for review and did not realize that the petition for review had not been submitted due to “some technical issues.” PFR File, Tab 1 at 4.

Under limited circumstances, the Board will excuse delays in filing caused by difficulties encountered with the e-Appeal system. See Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing a filing delay when the appellant alleged that he attempted to electronically file his petition for review on time and the e-Appeal system showed that the appellant had, in fact, accessed the system prior to the date that his petition was due; it was possible to exit the system without receiving a clear warning that he had not yet filed his pleading; and once he became aware that his petition had not been filed, the appellant contacted the Board and submitted a petition for review that included an explanation of his untimeliness). However, we find that the appellant’s failure to complete his submission is not excusable here.

¶8 According to the Board’s e-Appeal logs, the appellant accessed the system to start the process of filing his petition for review at 8:08 p.m. on the date that it was due, September 21, 2021. When an individual saves a draft petition for review in the e-Appeal system, the system automatically generates an email to him on each of the following 3 calendar days warning that the pleading has not yet been submitted. Palermo, 120 M.S.P.R. 694, ¶ 7. After the appellant saved his draft petition on September 21, 2021, he would have received reminders on September 22, 23, and 24, 2021, that his petition had not been filed. 2 Due diligence and ordinary prudence required that the appellant follow up to determine the status of the petition for review when he received those reminders.

However, he did not submit the petition for review until September 28, 2021.

September 21, 2021, was a Tuesday. Thus, the appellant received the email about the petition for review not having been filed with the Board on 3 business days.

¶9 In addition, the appellant was represented throughout the appeal, and he has not shown any circumstances beyond his control, such as unavoidable casualty or misfortune, which affected his ability to comply with the time limits. Nothing in the Board’s e-Appeal logs suggests that there were problems in the e -Appeal system during the relevant timeframe. Under the circumstances of this case, we find that the appellant has failed to establish good cause for his delay in filing his petition for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to excuse a 7-day delay for claimed difficulties with e-Appeal where the appellant did not receive a notification advising him that a pleading had been filed and he was aware that his pleading had not been successfully filed).

¶10 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 appellant’s removal.

NOTICE OF APPEAL RIGHTS 3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

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