Jana R. Cullefer v. Department of Agriculture
Background
- Appellant Jana R. Cullefer, a GS-9 Consumer Safety Inspector, was removed by USDA for 143.75 hours AWOL and 12 failures to follow leave procedures; she appealed to the MSPB and lost in an initial decision dated June 28, 2016.
- The initial decision advised that a petition for review must be filed within 35 days (or 30 days if the decision was received more than 5 days after issuance); the deadline was August 1, 2016.
- Cullefer filed a petition for review on August 11, 2016 (10 days late) and stated she received the initial decision on July 1, 2016.
- The Board’s Clerk notified Cullefer that the petition appeared untimely and instructed her to file a motion showing good cause, with a sworn statement or affidavit, by August 27, 2016.
- Cullefer said she attempted electronic filing and lacked reliable internet; e-Appeal logs showed she began a pleading July 27, re-entered on August 1 but did not submit, and submitted technical-support tickets on August 3.
- The Board found Cullefer familiar with e-Appeal (prior timely filings produced immediate confirmation emails), concluded she failed to exercise due diligence after learning the filing had not succeeded, and dismissed the petition for review as untimely without good cause shown; the underlying initial decision thus became final.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether petition for review was timely filed | Cullefer: attempted to file electronically on Aug 1; internet/technical issues prevented timely filing | Agency: petition was filed Aug 11 (late) and no timely motion for extension/good cause was filed | Petition untimely; dismissed for lack of good cause |
| Whether e-Appeal technical problems excuse late filing | Cullefer: technical failures and unreliable internet justify delay | Agency: e-Appeal logs show drafts and support tickets; Cullefer familiar with system and received confirmations for prior filings | No; appellant failed to show due diligence or circumstances beyond her control |
| Whether appellant showed due diligence after discovering filing failure | Cullefer: attempted to get technical support and eventually filed | Agency: delay continued after Aug 3 despite awareness filing had not succeeded | No; 8-day lag after support tickets and lack of immediate corrective action showed lack of due diligence |
| Whether procedural requirements for a late petition were met | Cullefer: submitted a late petition and later reply | Agency: no timely motion showing good cause with sworn statement/affidavit was filed as required | Requirements not met; dismissal affirmed |
Key Cases Cited
- Sanders v. Department of the Treasury, 88 M.S.P.R. 370 (2001) (burden to prove good cause for untimely filing; due diligence standard)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good cause: length of delay, excuse reasonableness, pro se status, circumstances beyond control)
- Salazar v. Department of the Army, 115 M.S.P.R. 296 (2010) (e‑Appeal system problems can excuse delay when filer reasonably believed submission succeeded and acted promptly upon discovering error)
- Lamb v. Office of Personnel Management, 110 M.S.P.R. 415 (2009) (excusing filing when appellant reasonably believed online completion equaled submission and received no warning)
- Livingston v. Office of Personnel Management, 105 M.S.P.R. 314 (2007) (good cause found when appellant created draft, exited without warning, and promptly acted when aware of problem)