Joseph Brown v. Department of Veterans Affairs
Background
- Appellant (preference eligible) applied for a Supervisory Police Officer promotion and was not selected; he appealed alleging violations of VEOA and USERRA and discrimination.
- An administrative judge dismissed the appeal for lack of jurisdiction in an initial decision issued April 1, 2016 and notified the parties that a petition for review was due by May 6, 2016.
- The Board electronically served the initial decision on the appellant’s representative on April 1, 2016; e-Appeal logs show the representative accessed and downloaded the decision that day.
- The appellant’s representative filed a petition for review on May 19, 2016 (13 days late), claiming he first saw the decision on May 9 due to alleged compromise/hacking of his email account and unreliable e-mail notifications.
- The Board considered the agency’s timely response and evaluated whether the late petition showed good cause under the Board’s standards for excusing untimely filings.
- The Board concluded the petition was untimely and that the appellant failed to show good cause; the initial decision therefore remained the final decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review | Petition filed May 19 should be treated as timely because the representative did not receive the initial decision until May 9 due to email compromise | Board’s e-Appeal logs show electronic service and access on April 1; petitioner received decision then and deadline was May 6 | Petition was untimely (13 days late); Board deems service on representative as service on appellant |
| Whether good cause excuses late filing | Representative’s email was hacked/persistently compromised, causing failure to receive notices; reliance on representative excusable | Representative as e-filer must ensure email filters and monitor e-Appeal Repository; appellant responsible for representative’s errors | No good cause: lack of due diligence, e-filer responsibilities, and reliance on representative not excusable |
| Effect of e-Appeal service rule | N/A (plaintiff disputes receipt date) | Electronic service is deemed received on submission date regardless of actual receipt | Board imputes receipt to appellant on date of electronic submission (April 1) |
| Availability of further judicial review | N/A | N/A | Appellant may seek review in the U.S. Court of Appeals for the Federal Circuit within 60 days of the Board’s order |
Key Cases Cited
- Lima v. Department of the Air Force, 101 M.S.P.R. 64 (2006) (service on a designated representative is imputed to the party)
- Via v. Office of Personnel Management, 114 M.S.P.R. 632 (2010) (standard for excusing untimely filings—good cause required)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for assessing good cause: length of delay, reasonableness, due diligence, circumstances beyond control)
- Crozier v. Department of Transportation, 93 M.S.P.R. 438 (2003) (13-day delay is not minimal for purposes of excusing untimely filing)
- Young v. Department of Labor, 69 M.S.P.R. 695 (1996) (appellant responsible for errors of chosen representative; reliance on representative does not establish due diligence)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court strictly enforces statutory filing deadlines and generally will not waive them)