Alford v. Leonhart et al

Filing 42

ORDER dismissing as moot 25 Motion for Summary Judgment, dismissing as moot 26 Motion for Summary Judgment and dismissing as moot 21 Motion to Dismiss for Failure to State a Claim, in the alternative, Motion for Summary Judgment. The Merit S ystems Protection Board's decision is VACATED and case number 7:14-CV-00268 is REMANDED for a decision on the merits. Case number 7:14-CV-00196 is DISMISSED and all pending motions in that case are DISMISSED as moot. The Clerk of Court is DIRECT ED to serve a copy of this Order on the Merit Systems Protection Board and to close both cases. Signed by Senior Judge James C. Fox on 2/25/2016. Copy sent to Mia C. Alford, 309 Calhoun Drive, Wilmington, NC 28412 via US Mail on 2/26/2016. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION

NITAC.ALFORD,
Plaintiff,

v.

)
)
)
)

No. 7:14-CV-00196-F

)

MICHELE M. LEONHART
and SUSAN T. GRUNDMAN,
Defendants.

NITAC.ALFORD,
Petitioner,

v.

)
)
)
)
)

)
)
)
)

)

MERIT SYSTEMS PROTECTION BOARD,
Respondent.

No. 7:14-CV-00268-F

)
)
)
)

ORDER
This Order addresses the following pending matters in this consolidated action:
(1) Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment [DE-21] and
Plaintiff's Motion for Summary Judgment [DE-26] in case number 7:14-CV-00196-F (the "Civil
Action");, and (2) Petitioner's appeal from a decision of the Merit Systems Protection Board
("MSPB") in case number 7:14-CV-00268-F (the "Appeal"). Plaintiff/Petitioner Mia C. Alford
appears pro se in both actions.

For the reasons stated below, the MSPB's decision is VACATED and case number 7:14-CV00268 is REMANDED for a decision on the merits. Case number 7:14-CV-00196 is DISMISSED
and all pending motions in that case are DISMISSED as moot.

I.

FACTUAL AND PROCEDURAL IDSTORY

On January 29, 2013, Alford filed an appeal with the MSPB challenging her termination
from the Drug Enforcement Agency ("DEA"), alleging that the DEA failed to accommodate her
disability and fired her in retaliation for an earlier EEOC complaint. The MSPB dismissed the
appeal, filed approximately sixteen years after her termination, as untimely. Her subsequent
petition for review of that decision was denied on February 4, 2014. Alford appealed to the
United States Court of Appeals for the.Federal Circuit. On November 18, 2014, that court
transferred the appeal to this district. On the same day, Alford filed a complaint against the
Defendants, indicating her intent to raise identical issues. 1
· IT.

STANDARD OF REVIEW

This matter comes to the court in an unusual procedural posture that implicates the standard of
review. In particular, the court must act as the trial court in the Civil Action and the reviewing court in
the Appeal, deciding the same issue in both. This Order resolves that conflict and places the litigation
on track for resolution.
Generally, a plaintiff who seeks judicial review of a decision by the MSPB must do so in
the Federal Circuit. See Kloeckner v. Solis, 133 S. Ct. 596, 607 (2012). Where, however, a
federal employee's claims before the MSPB include allegations of discrimination, her appeal
must be filed in district court. !d. This is the case regardless of whether the MSPB decided the
case "on procedural grounds or instead on the merits." !d. In mixed cases-·those containing both

1

Alford indicates that "[t]his case comes from the United States Court of Appeals for the Federal Circuit." Compl.,
Civil Action [DE-4-1] at 1.
·

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discrimination and nondiscrimination claims-"the district court reviews the discrimination
claims de novo and the nondiscrimination claims under a deferential standard of review, setting
aside the MSPB's decision only if fmdings or conclusions are found to be '(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence."' Alguard v. Vilsack, No. 13-CV-3083-TOR, 2015 WL 5008416, at *2
(E.D. Wash. Aug. 20, 2015) (internal citations omitted).

ill.

DISCUSSION

Because the MSPB dismissed Alford's claim based on untimeliness, it did not reach the
merits of the case. Likewise, Defendants do not address the merits of Alford's complaint, but ask
the court to dismiss it as untimely. Thus, the sole issue before the court is Alford's timeliness.
Generally, a person who wishes to appeal an agency's decision must file the appeal with
the MSPB within thirty (30) days of either the effective date of the agency's action or the date
the appellant receives notification of the agency's decision, whichever is later. 5 C.F.R.
§ 1201.22(b). Untimeliness may be excused, however, if"a good reason for the delay is shown."
5 C.F.R. § 1201.22(c). To establish good cause, "a party must show that he exercised diligence
or ordinary prudence under the particular circumstances of the case." Bond v. Dep 't ofArmy, No.
DC07529110477, 1991 WL 249918, at *1 (M.S.P.B. Nov. 20, 1991). The Board will consider
"the length of the delay, the reasonableness of [the Petitioner's] excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his
inability to timely file his petition." Edwards v. US. Postal Serv., No. DA-0752-98-0405-1-1,

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2003 WL 21664189, at *2 (M.S.P.B. July 3, 2003) (citing Moorman v. Dep't ofArmy, No. DA0752-93-0628-M-1, 1995 WL 382731, at *1 (M.S.P.B. June 21, 1995)). Where a party claims
that an illness prevented timely filing, he must: "(1) [i]dentify the time period during which he
suffered from the illness; (2) submit medical evidence showing that he suffered from the alleged .
illness during that time period; and (3) explain how the illness prevented him from timely filing
his appeal or a request for an extension of time." Lacy v. Dep 't ofNavy, No. SF-0752-97-0367-11, 1998 WL 300878, at *1 (M.S.P.B. June 2, 1998).
Here, Alford claims that her delay in filing is attributable to her mental illness during the
applicable limitations period. In support of this claim, Alford' presents the following:
(1) Independent Psychological Evaluation, dated November 2, 2012, from Dr. Peter Schulz, a
licensed psychotherapist, see Civil Action [DE 33] at 135-36; and (2) the Findings of Fact and
Conclusions of Law section from an administrate law judge's ("ALJ") decision granting Alford's
application for supplemental security income, see Civil Action [DE 35-1] at 39-40, 45. Alford
also notes that she was homeless for at least a portion of the applicable limitations period,
making it even more difficult for her to manage her affairs.
Upon conducting his own examination of Alford and reviewing evaluations by other
health professionals, Dr. Schulz concluded that Alford "appears to have suffered from a
longstanding psychiatric condition that has rendered her unable to work and in need [of]
outpatient therapy, monthly evaluations with a psychiatrist, and supportive help in the
community with a social service agency's crisis team." Civil Action [DE-33] at 135-36.
Specifically, Dr. Schulz noted that Alford has been diagnosed with Schizoaffective Disorder,
Major Depressive Disorder - Recurrent, and Anxiety Disorder. Civil Action [DE-33] at 136.
Further, Dr. Schulz concluded that Alford's illness "would have rendered her unable ... to have

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managed her financial planning and/or legal matters in a reliable or effective manner" in 1996,
when she was terminated by the DEA. Id
Turning to the SSA decision, the ALJ provided a summary of Alford's psychiatric
treatment and fmdings by mental health professionals. Civil Action [DE-35-1] at 45.

In

particular, the ALJ noted that Alford was found to suffer from "constant depression, low energy,
hopelessness, restricted affect, anxiety, passive suicidal ideation, thoughts of death directed
toward her son, difficulty caring for herself, resulting in being disheveled, chest flutter, [and]
headache[s]," and that she "has periods when she stays in the house 'all the time' and lies down."
Id Ultimately, the ALJ concluded that "[Alford] has been disabled ... since April 2, 2008, the

date the application for supplemental security income was filed." Civil Action [DE-35-1] at 40.
Upon reviewing this documentation, however, the MSPB concluded Alford had not
adequately demonstrated that illness prevented her from filing her appeal. Specifically, the
MSPB noted that "other than the disability award letter and 2012 psychological evaluation, the
appellant provides no other medical evidence to support her claim of mental illness." Civil
Action [DE-36-1] at 175. In addition, the MSPB noted that "during the period of claimed
incapacity, the appellant filed an application for disability retirement, pursued her appeal through
OPM, and brought two appeals to the Board challenging OPM's determination." Id Given
Alford's apparent ability to pursue other claims, the MSPB was dissatisfied by Alford's
explanation of her inability to file the instant claim. See id.
Having reviewed de novo2 the record provided by the MSPB, the court concludes Alford
was suffering from mental illness during the relevant time period. The court does not find, as the
MSPB did, that Alford's ability to file other claims during the same time period necessarily
2

In MSPB appeals, the court reviews discrimination claims de novo and nondiscrimination claims under a
deferential standard. A/guard, 2015 WL 5008416, at *2. Alleging failure to accommodate a disability and
retaliation, Alford appears to raise only discrimination claims.

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implies that she was competent to manage her affairs. Rather, the court finds some successful
filings on Alford's part may just as likely indicate only that Alford experienced brief periods of
lucidity. Moreover, Alford's assertion that her mental illness left her "incapable of handling her
affairs" is supported by Dr. Schulz' observation that:
[t]hough [Alford] is a little confused if her ending date was 1996 or 2003, the
matter is insignificant. Based on the information made available for the
evaluation, it is clear that she has had a longstanding psychiatric condition that
would have rendered her unable to have been able to have managed her financial
planning and/or legal matters in a reliable or effective manner .... [H]er mental
health condition at the time of her separation from employment with the Dept. of
Justice would have rendered her incompetent to have known that she was
supposed to have completed the necessary paperwork to be able to collect her
retirement funds and/or benefits.
Civil Action [DE-33 at 136] (emphasis added).
Thus, the court concludes that the MSPB' s timely filing requirement should be waived in
Alford's case. Accordingly, the MSPB's decision is VACATED and the case is REMANDED
for a decision on the merits. As they raise identical issues, resolution of Alford's MSPB petition,
case number 7:14-CV-00268, will necessarily resolve case number 7:14-CV-00196. Therefore,
case number 7:14-CV-00196 is DISMISSED. All pending motions in that case are DISMISSED
as moot.
IV.

CONCLUSION

For the foregoing reasons, the MSPB's decision is VACATED and case number 7:14-CV00268 is REMANDED for a decision on the merits. Case number 7:14-CV-00196 is DISMISSED
and all pending motions in that case are DISMISSED as moot. The Clerk of Court is DIRECTED to
serve a copy of this Order on the Merit Systems Protection Board and to close both cases.

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SO ORDERED .
.r
This the~ ~ day ofFebruary, 2016.

J}ifues C. Fox
Senior United States District Judge

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