Nathaniel K. Watty v. Department of Veterans Affairs
Background
- Appellant Nathaniel K. Watty appealed agency action raising claims of constructive suspension, involuntary retirement, and violations of USERRA and VEOA. An administrative judge issued an initial decision on March 17, 2016 dismissing those claims for lack of jurisdiction and denying relief.
- The administrative judge notified Watty that a petition for review was due by April 21, 2016; the decision was served electronically to the e-filer email address on file.
- Watty filed a petition for review on May 14, 2016 — 23 days late — asserting he only learned of the initial decision on May 9 and blamed nonreceipt of Board e-mail notices on alleged hacking of his e-mail account.
- Board electronic logs showed Watty accessed the e-Appeal Online repository for this appeal on April 27, 2016 (which contained the initial decision), undermining his claim of lack of notice until May 9.
- The Board applied its rules for e-filers (responsibility to monitor repository and ensure @mspb.gov mail is not blocked) and the good-cause standard for late petitions (focus on length of delay, reasonableness of excuse, due diligence, pro se status, and circumstances beyond control).
- The Board concluded Watty failed to show he exercised due diligence or ordinary prudence and therefore did not establish good cause; the petition for review was dismissed as untimely and the initial decision remained the final decision.
Issues
| Issue | Watty's Argument | Agency's Argument | Held |
|---|---|---|---|
| Timeliness of petition for review | Watty said he did not learn of the initial decision until May 9 due to e-mail nonreceipt/hacking | Board evidence shows Watty accessed e-Appeal repository April 27; e-filer rules deem electronic service received on issuance date and place duty on e-filers to monitor repository | Petition untimely; Watty failed to show good cause for 23-day delay and lacked due diligence; dismissed |
| Effect of e-filer obligations on notice | Watty argued interruptive external events (hackers) prevented notice | Board cited regulations requiring e-filers to monitor repository and prevent blocking of @mspb.gov; access logs rebut claim of nonreceipt | E-filer duties control; access log established constructive receipt by April 27, defeating excuse |
Key Cases Cited
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991) (court normally cannot waive statutory filing deadline)
- Moorman v. Department of the Army, 79 F.3d 1167 (Fed. Cir. 1996) (Table) (discussing good-cause factors and Board standards)