Karen R. Earle v. Department of Veterans Affairs
Background
- Appellant (Karen R. Earle) appealed her removal from a GS-9 Contract Specialist position to the MSPB, alleging hostile work environment, improper assignments, denial of opportunity to perform, and retaliation for prior EEO activity.
- The administrative judge issued multiple orders and opportunities to litigate but dismissed the appeal with prejudice for failure to prosecute after the appellant (through counsel) failed to respond to at least three orders.
- The initial decision warned it would become final on March 4, 2016 unless a timely petition for review was filed.
- Counsel filed a petition for review by facsimile on March 14, 2016 (treated as filed March 14), which the Clerk determined to be untimely.
- Counsel explained the delay by citing prior serious injuries and family illnesses and technical difficulties accessing the e-Appeal Repository; counsel admitted receipt of the electronic notice of the initial decision on January 29, 2016 but did not open it until March 9, 2016.
- The Board found counsel’s explanations insufficient to show good cause for the 9-day late filing, held that electronic service is deemed received on the date sent, and dismissed the petition for review as untimely without good cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review / good cause for 9-day delay | Counsel blamed prior personal injuries/illnesses and technical problems that prevented timely review and filing | Board/agency argued the initial decision was electronically served Jan 29, counsel admitted receipt, technical access issues do not excuse delay after service, and appellant is responsible for counsel’s failures | Petition untimely; appellant failed to show good cause; petition dismissed |
| Effect of electronic service / deemed receipt rule | Counsel argued access problems in e-Appeal prevented review until March 9 | Agency relied on rule that Board documents served electronically on registered e-filers are deemed received on the date of electronic submission | Electronic service deemed receipt on Jan 29; counsel’s later inability to open the document did not change deemed receipt; no good-cause shown |
Key Cases Cited
- Alonzo v. Department of the Air Force, 4 M.S.P.R. 180 (1980) (standard: good cause requires due diligence or ordinary prudence)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good cause: length of delay, reasonableness, pro se status, circumstances beyond control)
- Lima v. Department of the Air Force, 101 M.S.P.R. 64 (2006) (explaining legal effect of a regulation that "deems" an event to have occurred)
- Hodges v. Office of Personnel Management, 101 M.S.P.R. 212 (2006) (a multi-week delay not necessarily de minimis when assessing good cause)
- Bailey v. U.S. Postal Service, 85 M.S.P.R. 105 (2000) (short delays may nonetheless fail to show good cause)
- Sofio v. Internal Revenue Service, 7 M.S.P.R. 667 (1981) (appellant generally responsible for actions of chosen representative)
- Murphy v. Department of the Treasury, 91 M.S.P.R. 239 (2002) (reaffirming responsibility for representative errors)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (courts generally cannot waive statutory filing deadlines)