Shanna Bertie v. Department of Veterans Affairs

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

SHANNA BERTIE, DOCKET NUMBER

Appellant, AT-0752-25-0328-I-1 v.

DEPARTMENT OF VETERANS DATE: September 8, 2026 AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shanna Bertie , Camilla, Georgia, pro se.

Andrew James Patch , Esquire, Tampa, Florida, for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the initial decision, which dismissed her appeal of her removal for failure to prosecute. On petition for review, she argues she did not respond to the administrative judge’s orders because her attorney withdrew from representing her and she was facing eviction proceedings. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

The appellant was a GS-0102-09 Peer Specialist, who began work at the agency in February 2014. Initial Appeal File (IAF), Tab 5 at 15, 63. On November 7, 2024, the agency proposed her removal based on charges of failure to safeguard patient information and absence without official leave. Id. at 41-54. The appellant responded to the proposed removal. Id. at 28-40. On December 16, 2024, the agency issued a decision sustaining the charges and removing her from employment, effective January 3, 2025. Id. at 16-19.

The appellant filed her initial Board appeal on February 3, 2025. IAF, Tab 1 at 1. In a March 12, 2025 order, the administrative judge instructed the parties to submit prehearing submissions no later than April 22, 2025, and attend a telephonic prehearing conference on April 29, 2025. IAF, Tab 9 at 1. After the appellant did not submit a prehearing submission or attend the prehearing conference, the administrative judge issued an order to show cause why she should not be sanctioned for her failure to comply with Board orders. IAF, Tab 15 at 1, Tab 16, Initial Decision (ID) at 2. The order to show cause instructed the appellant to respond by May 15, 2025. IAF, Tab 15 at 2. She did not respond to the order, and the administrative judge issued an initial decision, dismissing the appeal for failure to prosecute, on May 16, 2025. ID at 1-3. The appellant filed a petition for review on June 17, 2025, and the agency filed a response on June 20, 2025. Petition for Review (PFR) File, Tabs 1-2.

The appellant argues in her petition for review that she did not respond to the administrative judge’s orders and did not attend the prehearing conference because her attorney withdrew from representing her on the day before prehearing submissions were due, and she claims that he advised her that he would cancel the April 29, 2025 prehearing conference. PFR File, Tab 1 at 17. The Board has held that the withdrawal of an appellant’s counsel does not excuse an appellant’s own failure to respond to a Board order because the right of appeal is personal to the employee and the responsibility for the prosecution of the appeal remains with her regardless of whether she is represented. Driggs v. Federal Aviation Administration, 15 M.S.P.R. 597, 599 (1983).

As to her claim that her now-former attorney told her that he would cancel the prehearing conference, an appellant’s attorney does not have the authority to cancel a prehearing conference; rather such authority resides with the administrative judge. PFR File, Tab 1 at 17; see Guzman v. Department of Veterans Affairs, 114 M.S.P.R. 566, ¶ 12 (2010) (noting that the Board has given its administrative judges broad discretion pursuant to 5 C.F.R. § 1201.41(b)). Even if she believed that he did have this authority, the appellant would have known that he did not cancel the prehearing conference because she was served all case filings via U.S. mail and no such cancellation notice was filed. 2 IAF, Tab 3 at 17, Tab 4 at 4, Tab 5 at 64, Tab 6 at 251, Tab 7 at 5, Tab 8 at 4, Tab 9 at 3, Tab 10 at 10, Tab 11 at 8, Tab 12 at 2, Tab 13 at 6, Tab 14 at 17, Tab 15 at 3. Furthermore, an appellant is responsible for the action or inaction of her chosen representative. Buchanan v. U.S. Postal Service, 21 M.S.P.R. 479, 480 (1984).

The appellant also contends that she did not respond to the administrative judge’s orders because she was facing eviction proceedings. PFR File, Tab 1 at 4-5, 18. While we are certainly sympathetic to appellant’s assertions, we do not find that these assertions adequately explain or excuse her not attending the prehearing conference, not responding to the order instructing her to submit prehearing submissions, and not responding to the order to show cause. Thus, the appellant’s assertions of financial difficulties does not warrant a different result. See, e.g., Tamayo v. Office of Personnel Management, 88 M.S.P.R. 685, ¶ 7 (2001) (holding that financial difficulties and the inability to secure a representative did not establish good cause for an appellant’s untimely attempt to perfect a deficient petition for review); Johnson v. Department of Veterans Affairs, 64 M.S.P.R. 257, 259 (1994) (finding that an appellant’s financial difficulties did not constitute good cause for a waiver of a filing deadline), aff’d per curiam, 56 F.3d 81 (Fed. Cir. 1995) (Table).

Accordingly, we affirm the initial decision dismissing the appeal for failure to prosecute.

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.

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 717 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 131 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).

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 717 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: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.