Joseph Brown v. Department of Veterans Affairs
Background
- Appellant (preference eligible) appealed nonselection for Supervisory Police Officer and alleged VEOA/USERRA violations, discrimination, and prohibited personnel practices.
- Administrative Judge dismissed the appeal for lack of jurisdiction on April 1, 2016, and notified the appellant that a petition for review was due within 35 days (May 6, 2016).
- The initial decision was served electronically to the appellant’s representative and by mail to the appellant; the e-Appeal logs show the representative accessed/downloaded the decision on April 1, 2016.
- The appellant’s petition for review was filed May 19, 2016 — 13 days late — with an explanation that the representative did not receive email notices due to an alleged email compromise and only discovered the decision on May 9, 2016.
- The Board considered timeliness and good-cause standards, found the representative’s claims contradicted by e-Appeal logs, and concluded neither the delay nor the explanations established good cause.
- The Board dismissed the petition for review as untimely without good cause; the initial decision therefore remained the Board’s final decision. The order informed appellant of Federal Circuit review rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review | Petition filed May 19 should be treated as timely because representative did not receive decision until May 9 due to email hacking | Board’s e-Appeal logs show electronic service and representative accessed decision April 1; petition due May 6 | Petition untimely: Board imputes service to appellant via representative; petition due May 6 and filed 13 days late |
| Good cause to excuse late filing | Delay caused by representative’s compromised email and resulting lack of notices; appellant relied on representative | Representative as e-filer had duty to monitor e-Appeal and maintain email security; appellant responsible for chosen representative’s errors | No good cause: lack of due diligence, reasonable alternatives available (change service method, monitor repository) |
| Imputation of service to appellant | Appellant argues he did not receive decision timely | Board asserts service to designated representative is imputed to party | Service to representative imputed to appellant; deemed received April 1 |
| Availability of further judicial review | N/A (procedural) | N/A | Appellant may seek review at the Federal Circuit within 60 days of the order |
Key Cases Cited
- Lima v. Department of the Air Force, 101 M.S.P.R. 64 (Board 2006) (service on designated representative is imputed to the party)
- Via v. Office of Personnel Management, 114 M.S.P.R. 632 (Board 2010) (Board will excuse untimely filing only for good cause)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (Board 1995) (factors for assessing good cause: delay length, reasonableness, due diligence, circumstances beyond control)
- Crozier v. Department of Transportation, 93 M.S.P.R. 438 (Board 2003) (13-day filing delay is not minimal for good-cause purposes)
- Young v. Department of Labor, 69 M.S.P.R. 695 (Board 1996) (appellant responsible for errors of chosen representative)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (Federal Circuit generally will not waive statutory filing deadlines)