What Does the Merit Systems Protection Board Have in Common with Federal Health Care Enrollment?

A balky website for filing appeals with the MSPB is turned aside as an excuse for missing the filing deadline by both the Board and the appeals court. The employee is therefore out of luck in trying to challenge her removal.

This recent case demonstrates that there is at least one federal website, other than those for enrolling in health insurance, that frustrates users. (Faden v. Merit Systems Protection Board (CAFC No. 2013-3167 (nonprecedential), 1/16/14)

Without getting into the reasons why the employee was removed by the Department of Veterans Affairs, the decision addresses the fact that Ms. Faden’s appeal to the MSPB was filed late and analyzes whether she met the requirement of showing a good cause for her delay in filing. The Board held that she did not and dismissed her appeal. The court has now upheld that decision.

The crux of Ms. Faden’s argument was that the Board’s electronic filing system messed up. Both Faden and her attorney submitted affidavits swearing that on May 23, 2012, the attorney “attempted to e-file the appeal, and it ‘appeared accepted.’” (Opinion p. 2)

Unfortunately for the wannabe appellant, the next day an auto reply from the MSPB to Faden’s attorney indicated that the appeal was not submitted, and gave instructions for how to make it happen. The attorney explained that he missed this email but received another identical message on May 25th. However, when he tried to get into the MSPB system, “it appeared the system was down,” and he assumed when it came back up it would process the appeal without further action required by him. (pp. 2-3)

Noticing on her own that her attorney’s appeal submission apparently had not gone through, she emailed him on the filing deadline date (May 29th) and asked if he would submit it or should she. He advised her to get it in the mail, she sent it to him for one last read through, asking him what more do I need to do. The attorney did not respond, was out of the office for several days, and Ms. Faden finally e-filed the appeal on her own, albeit seven days late. (p. 3)

The Board was not persuaded that the filing delay was justified under these circumstances—after all the attorney had received three written notices that his e-file was not successful. The Board did indeed admit that the e-file system did have technical issues—it was down for half an hour on May 24th, and from 4 PM on May 27 until the early morning of May 29. However, since “there was nothing to prevent the appellant from successfully [e-filing]…on May 23, May 24, May 25, or May 26, or at any time after 4:30 a.m. on May 29,” there is simply no excuse for missing the deadline. (p. 3) And, the appeal could have been sent by snail mail or fax, or either the attorney or Faden could have asked for help with the e-filing system.

Faden took her case to the appeals court since she believed she did have good cause for missing the filing deadline under these circumstances.

In upholding the Board’s dismissal of the appeal, the court further noted that Faden’s attorney “could not reasonably have believed he had successfully completed the e-filing…” since the warning notices explained that one receives three reminders of the unsuccessful filing and then no more would be sent. Not to mention the appeal could have been submitted another way. (p. 5)

While “sympathetic” with Faden’s situation, the court holds that the Board did not abuse its discretion in refusing to consider her late appeal.

With so much on the line one it makes sense to assume a person would go ahead and fax the appeal to meet the deadline.

Faden v. MSPB

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.