Jana R. Cullefer v. Department of Agriculture
Background
- Appellant Jana R. Cullefer was removed from a GS-9 Consumer Safety Inspector position for 143.75 hours AWOL and 12 failures to follow leave procedures.
- The administrative judge issued an initial decision on June 28, 2016, informing the appellant that a petition for review (PFR) was due by August 1, 2016 (35 days) or within 30 days of actual receipt if received more than 5 days after issuance.
- Cullefer filed a PFR on August 11, 2016, and claimed she received the initial decision on July 1, 2016; as an e-filer, she was deemed to have received it on June 28.
- Board e-Appeal logs showed Cullefer began a pleading July 27, reentered the system on August 1 but did not submit, and she opened technical-support tickets on August 3; she eventually submitted the PFR on August 11.
- The Clerk notified her that an untimely PFR must be accompanied by a motion and sworn statement showing good cause; she failed to file a timely, adequately supported motion.
- The Board dismissed the PFR as untimely for lack of good cause; the initial decision (affirming removal) remained the final Board decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the PFR was timely filed | Cullefer says she submitted electronically on Aug 1 and only became aware of problems later | Agency notes PFR was filed Aug 11 (10 days late) and e-filing logs show no timely submission | PFR was untimely; due date Aug 1; filed Aug 11 — untimely |
| Whether e-Appeal/system problems provide good cause to excuse the delay | Cullefer cites unreliable internet and attempted electronic filing; says she contacted technical support | Agency and logs show prior successful e-filings and no evidence of system error that prevented filing on or before Aug 1; she did not act with due diligence after Aug 3 | No good cause: appellant was familiar with system, failed to follow up promptly, and did not submit required sworn motion/explanation; delay not excused |
Key Cases Cited
- Sanders v. Department of the Treasury, 88 M.S.P.R. 370 (2001) (party claiming untimely filing must show good cause by proving due diligence)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good cause include length of delay, reasonableness of excuse, pro se status, and circumstances beyond control)
- Salazar v. Department of the Army, 115 M.S.P.R. 296 (2010) (Board may excuse delay for e-Appeal system difficulties when filer acted with due diligence and evidence shows system caused filing failure)
- Lamb v. Office of Personnel Management, 110 M.S.P.R. 415 (2009) (untimely filing may be excused when filer reasonably believed online submission was complete and website provided no clear warning)
- Livingston v. Office of Personnel Management, 105 M.S.P.R. 314 (2007) (good cause found where filer created draft, exited without warning, and acted promptly when aware of problem)