[00:00:00] Speaker 04:
Fourth argument to be heard this morning is still morning.

[00:00:04] Speaker 04:
Appeal number 22-1941, Perkola versus the American Distance Protection Board.

[00:00:12] Speaker 04:
Ms.

[00:00:12] Speaker 04:
Hanson, whenever you're ready.

[00:00:14] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 01:
My name is Alexa Hanson, and I represent the appellant here, Mr. Perkola.

[00:00:21] Speaker 01:
This is a dispute over an untimely filed appeal and whether or not it's excusable.

[00:00:25] Speaker 01:
There is no dispute that Mr. Prakala filed his appeal challenging the merits of his removal on March 27, 2015, five years and 11 months beyond his April 27, 2009 deadline.

[00:00:37] Speaker 01:
There is also no dispute that the MSPB found that all but two blocks of that time were excused.

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These two blocks of time, which I'll refer to as the first and second contested time periods respectively, totaled about four and a half months over a seven month period of time.

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The first contested period is from August 27, 2009 through December 7, 2009, and the second contested period is from February 9 through March 27, 2010.

[00:01:02] Speaker 01:
The remaining time, the remaining five and a half years,

[00:01:07] Speaker 01:
between, before, and after these two contested periods was excused, as the MSPB affirmed at paragraphs 7, 8, and 12 of the second final decision below.

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The question before this court is whether the MSPB's decision declining to excuse the filing delay over these two contested time periods was an abuse of discretion.

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And the answer is yes.

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The facts of this case, while lengthy, are fairly simple when focused on this specific issue.

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Mr. Percala suffers from a host of intertwined physical and mental health issues, which the MSPB acknowledged were present before, between, and after the first and second contested time periods that affected his ability to make a timely filing.

[00:01:47] Speaker 01:
Whether health issues affected or impaired his ability to make a timely filing, not whether he was incapacitated, is the standard as set forth in Lacey versus Department of the Navy

[00:01:57] Speaker 01:
that the MSPB has used for over two decades to evaluate whether untimely filings are excused for health reasons.

[00:02:04] Speaker 04:
What's the exact language from Lacey?

[00:02:08] Speaker 04:
Factor number three?

[00:02:10] Speaker 01:
Yes, the language from factor number three requires that

[00:02:24] Speaker 01:
One must explain how the illness prevented him from timely filing an appeal or request for extension of time.

[00:02:31] Speaker 04:
Right.

[00:02:32] Speaker 04:
So I guess how did the board here use its discretion in concluding that the appellant didn't prove that how his whatever his condition was prevented him from timely filing his appeal.

[00:02:50] Speaker 01:
Because they found that the same vein of evidence, the same conditions, excused his delay between December 7th and February 9th.

[00:02:59] Speaker 01:
But he suffered from those conditions in the two contested periods as well.

[00:03:03] Speaker 01:
Finding that the same activities excused his behavior during one period of time, but not during the other two was an abuse of distinction.

[00:03:09] Speaker 04:
During that period of time, the December to February period of time, he actually met with a VA doctor who had

[00:03:18] Speaker 04:
would examine him and given him a diagnosis.

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And so I guess in that way the board was prepared to forgive that block of time up until February when he said quote unquote felt good.

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But all that the board had to go on before December 2009 was some generalized

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indication that someone named Dr. Stern had previously saw him at some earlier period of time.

[00:03:51] Speaker 04:
That's an unstated date and also unstated to what degree Dr. Stern had any kind of specific opinion about whatever the appellant's condition was.

[00:04:05] Speaker 04:
So I guess that's the problem I saw that the board was having in terms of trying to figure out whether the appellant was able to prove

[00:04:13] Speaker 04:
prove good cause prior to December 2009?

[00:04:18] Speaker 01:
Your Honor, there certainly are no medical records between August 27 and December 7, 2009.

[00:04:25] Speaker 01:
Mr. Percala had lost his insurance at that point.

[00:04:28] Speaker 01:
But there is evidence in the record that Mr. Percala was suffering from PTSD and depression.

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For example, there is a letter that he sent to the Employee Assistance Program on February 23, 2009.

[00:04:41] Speaker 01:
explaining that he is suffering from PTSD and other mental health issues.

[00:04:45] Speaker 01:
That's it.

[00:04:45] Speaker 00:
So I'm interested, and I think you're going here next, is what's your strongest record evidence explaining how petitioners' illness prevented a time of falling during each of these contested periods that we're talking about, the ones that you defined for us?

[00:04:57] Speaker 01:
Sure.

[00:04:58] Speaker 01:
So Mr. Bacalla's PTSD and depression led him to an inability to focus on more than one thing at a time.

[00:05:05] Speaker 01:
He became very confused by which case was which.

[00:05:09] Speaker 00:
And it sounds like they have requisites for me.

[00:05:11] Speaker 00:
Can you also give those as your view?

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Sure.

[00:05:13] Speaker 00:
Yeah.

[00:05:14] Speaker 01:
So for example, at 566 to 74, which was a submission that Mr. Pocalla made while he was pro se at the MSPB, explaining all of the issues that he was grappling with.

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And he has specified that he was suffering from depression and became very confused

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by the various cases not understanding which was which and which issue of the many that he was attempting to address he would be working with at any given time.

[00:05:42] Speaker 01:
With respect in particular to the PTSD, his disability decision at footnote three observed that he received social security disability based on a finding of PTSD.

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That decision was made at some point prior to the OPM decision in February of 2015.

[00:05:59] Speaker 01:
With respect to the time period after February 9, 2010, Mr. Bercala continued to receive treatment for the exact same condition, PTSD, depression, as shown in, for example, the March 31, 2010 visit, which you can find at page 463 of the record.

[00:06:19] Speaker 01:
He again saw a counselor in April.

[00:06:22] Speaker 01:
2010 in May 2010 in August 2010 at which point he began to see Dr. Sabbath who submitted a letter actually in 2012 indicating that he was still suffering from the exact same conditions that he was suffering from when he was first seen at the VA emcee in December of 2009 Why are those not?

[00:06:42] Speaker 03:
simply evidence of steps one and two of Lacey and

[00:06:46] Speaker 03:
or why is it abuse of discretion for the board not to see that as simply going to, okay, he had the illness, we know when he had the illness, but there's an absence of evidence explaining how the illness may be ongoing, maybe at an earlier time it kept him from focusing on more than one thing, but how do we know that there's an explanation for that failing of step three of LACI in these two particular time periods?

[00:07:13] Speaker 01:
The statement that Mr. Percalla made in January of 2016 applies to the whole period.

[00:07:18] Speaker 03:
That's the one you referenced at, 566?

[00:07:21] Speaker 01:
566 or 74.

[00:07:22] Speaker 01:
It is a lengthy collection of text, Your Honors.

[00:07:27] Speaker 01:
And there does not appear, I mean, the way Mr. Percalla presented his ability to focus on a given case at any single time, or more than one case at any one time, has not changed over that period.

[00:07:40] Speaker 01:
There wasn't a certain

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aha moment in, for example, February of 2010 where he was all of a sudden able to deal with more than one issue at a time.

[00:07:49] Speaker 01:
He continues to suffer from these conditions that do affect his ability to file and to focus on more than one issue at a time.

[00:07:57] Speaker 04:
I thought there was some indication that the appellant was able to focus on at least a couple different things at the same time.

[00:08:08] Speaker 04:
One example is

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pursuing a worker's comp claim and grievance of his removal.

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And then another point in time, some kind of FLRI claim against the union while at the same time seeking disability retirement benefits.

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So I mean, I guess the fact that he's able to pursue one case suggests that he could

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have time to file this appeal.

[00:08:40] Speaker 04:
But then there's other evidence that shows that he was, in fact, pursuing multiple things at a given time.

[00:08:49] Speaker 01:
The record evidence and the argument made by the agency in the briefing refers to a workers' comp claim that was pursued at some point in 2009.

[00:08:58] Speaker 01:
The record actually isn't particularly clear specifically when he was pursuing that.

[00:09:03] Speaker 01:
vis-a-vis his grievance petition.

[00:09:06] Speaker 01:
The record, however, does show that with respect to the arbitration, as soon as that was invoked, it was handed over to the union, which ultimately declined to pursue it.

[00:09:15] Speaker 01:
Mr. Percall, at that point in time, really had no involvement.

[00:09:18] Speaker 01:
He was not independently pursuing that particular claim.

[00:09:21] Speaker 04:
Now, with respect to the- I guess he initiated it, though.

[00:09:24] Speaker 04:
He was able to initiate it, which is all that we're looking for here.

[00:09:29] Speaker 01:
He was able to initiate it, but in those situations, Your Honor, he had representation, which is not something that he had with respect to the appeal of his removal proceeding.

[00:09:37] Speaker 01:
He was unable to secure representation before the MSPB.

[00:09:40] Speaker 01:
Now, with respect to Your Honor's second question, the time period concerning March 2010, where he was pursuing both the OPM

[00:09:48] Speaker 01:
matter as well as the FLRA matter.

[00:09:51] Speaker 01:
The FLRA matter actually began immediately after the union declined to initiate arbitration back in August of 2009 and again it was a similar proposition

[00:10:01] Speaker 01:
He filed the complaint.

[00:10:02] Speaker 01:
The FLRA took it from there.

[00:10:04] Speaker 01:
They ultimately ended up settling the case over his strenuous objection.

[00:10:09] Speaker 01:
With respect to the OPM matter, he also had representation.

[00:10:12] Speaker 01:
So it was an issue where he had someone there to guide him, to help him organize his thoughts and focus on the particular issue at the time.

[00:10:24] Speaker 01:
Unless your honor has any more questions, I'd like to reserve the rest of the panel.

[00:10:27] Speaker 04:
The 2016 doctor note that you were referring to, does it refer back to the 2009 time period?

[00:10:36] Speaker 01:
I believe there was a 2012 doctor note from Dr. Savitz at 6.05 on the record which refers back to

[00:10:44] Speaker 01:
with August 2010, which was the first time that particular psychiatrist at the VAMC began seeing Mr. Bucalla.

[00:10:50] Speaker 01:
The 2016 item that I referenced was the statement that Mr. Bucalla submitted at the MSPB at 566 to 74.

[00:10:58] Speaker 04:
Right.

[00:11:00] Speaker 04:
But does that doctor note indicate that, yes, whatever he's been dealing with that is debilitating goes all the way back to 2009?

[00:11:11] Speaker 01:
It does not, Your Honor.

[00:11:12] Speaker 01:
Mr. Savitz only began, or Dr. Savitz, excuse me, only began seeing Mr. Pacala in August of 2010.

[00:11:16] Speaker 01:
Oh, I see.

[00:11:18] Speaker 04:
OK.

[00:11:21] Speaker 04:
Thank you.

[00:11:34] Speaker 02:
May it please the court?

[00:11:36] Speaker 02:
The board's law requires that the entire period of untimeliness be covered by medical documentation or otherwise.

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And the record shows that here, Mr. Procala did not do that.

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This is also the case about the uncertainty in the medical documentation that he did submit.

[00:11:53] Speaker 02:
He submitted one large voluminous stack of medical documentation that lacked detail for a significant period of time, as counsel pointed out, for period one and period two.

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Period one being between August and December 2009, and period two being between about February 2010 and March 2010.

[00:12:12] Speaker 02:
The board still, despite the size of the documents, did review the documents and did its best to determine

[00:12:19] Speaker 02:
what meant to figure out if all three Lacey factors were met.

[00:12:22] Speaker 02:
If one and two about what condition existed and when it existed were met.

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And then three, if those conditions prevented him from filing.

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And the board's determination were that there was just not sufficient clarity in the documentation to cover those two periods of time.

[00:12:40] Speaker 00:
Do you believe your best argument is under Lacey factor three?

[00:12:44] Speaker 02:
Yes, Your Honor.

[00:12:45] Speaker 02:
There just simply was not an explanation for

[00:12:50] Speaker 02:
why those conditions prevented him from filing, particularly in light of the fact that he was suffering from or possibly suffering from depression between April 2009 and August 2009 when his litigation ended, but was able to engage in litigation at that same time.

[00:13:08] Speaker 02:
And yet, when that litigation ended, there's nothing in the record indicating as to why his depression would have then prevented him from filing a new appeal with the board to continue to pursue his removal.

[00:13:20] Speaker 03:
how much explanation is sufficient.

[00:13:23] Speaker 03:
explanation for instance with PTSD it's known to the board that that means you can't easily focus for some reason and there's evidence of that at an earlier time period what does he need does he just need one sentence saying and continue to be a problem for me understanding he was pro se they would you still need to submit something explaining that yes I had PT at this time PTSD at this time the record

[00:13:54] Speaker 02:
concerning his medical conditions, including his PTSD, wasn't exactly as clear as he represents between that March 2008 time frame and December 2009.

[00:14:04] Speaker 02:
In March 2008, he's actually diagnosed as having the PTSD under control and is cleared to go back to work.

[00:14:11] Speaker 02:
In February 2009, he writes a letter that says he's actually coping much better with the PTSD.

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And at that time, he's employed.

[00:14:20] Speaker 02:
Then there is no reference to PTSD all the way until December 2009.

[00:14:25] Speaker 02:
But there's a reference in that document stating that he's already receiving needed treatment for PTSD.

[00:14:30] Speaker 02:
This isn't a finding from the board that yes or no he has PTSD.

[00:14:34] Speaker 02:
This is a finding from the board that it's unclear as to whether or not his PTSD was so great that it prevented him from filing between that March 2008 and December 2009 time frame.

[00:14:46] Speaker 03:
Why is his January 2016 statement that your friend referred us to not sufficient explanation for the whole period?

[00:14:54] Speaker 02:
Well, as Judge Chen pointed out, it does not actually relate back to December 2009.

[00:15:04] Speaker 02:
It just simply states, at that time, he has PTSD, and he's unable to focus on two matters at that time.

[00:15:10] Speaker 02:
The board's requirements require medical evidence to actually cover an entire period of time.

[00:15:17] Speaker 02:
The matter I referred to in a brief, Earl,

[00:15:19] Speaker 02:
has a case or has doctor's notes that actually say this person has been treated for this condition all the way back to the through the period of untimeliness and then you have the case in SB we reference

[00:15:32] Speaker 02:
in which the person has medical notes covering about a week's worth of conditions.

[00:15:39] Speaker 02:
And then after that, there's no medical notes and only unsworn testimony from the appellant saying they're still suffering from the condition.

[00:15:48] Speaker 02:
But the board in Mesby found that that was not sufficient to meet the burden.

[00:15:55] Speaker 03:
Do you agree that the burden is only that he showed that his ability to file was affected or impaired?

[00:16:01] Speaker 03:
He doesn't have to show that he was fully incapacitated.

[00:16:05] Speaker 02:
As Judge Henn pointed out, though, too, what the standard actually states is that it's prevented, prevented or impaired.

[00:16:12] Speaker 02:
And so it's more than just showing a minor ailment.

[00:16:16] Speaker 03:
Prevented and impaired might be slightly different.

[00:16:20] Speaker 03:
Is it enough that it was?

[00:16:22] Speaker 03:
materially more difficult for him, or does he need to show he really couldn't do the filing?

[00:16:28] Speaker 02:
The actual standard is prevented.

[00:16:31] Speaker 02:
And there's been other case law from the board since then that have maybe equated, prevented, and impaired.

[00:16:39] Speaker 02:
But the standard used in Lacey, the exactly word used, is prevented.

[00:16:44] Speaker 02:
The board mentions incapacitated in a footnote in Lacey to clarify that

[00:16:52] Speaker 02:
Prior cases may have found or used the word incapacity, which may have been too high a burden.

[00:16:59] Speaker 02:
The board's not looking for somebody to prove that they were in a coma.

[00:17:02] Speaker 02:
They are looking, though, for the person to show that they were prevented, unable to file as a result of the condition.

[00:17:12] Speaker 03:
Has our court addressed that question as to what the standard should be?

[00:17:15] Speaker 02:
The court hasn't addressed whether or not prevented, or the court hasn't precisely defined prevented, but the court has repeatedly affirmed decisions from the board using the prevented standard.

[00:17:28] Speaker 04:
Any presidential opinions or non-presidential?

[00:17:31] Speaker 02:
I'm unaware of any at this time.

[00:17:41] Speaker 02:
And going back to the depression, I understand I covered the PTSD.

[00:17:45] Speaker 02:
Or actually, one more note on the PTSD.

[00:17:47] Speaker 02:
In April of 2010, there was actually another note from the VA indicating he didn't even actually meet the criteria for PTSD.

[00:17:54] Speaker 02:
And I understand he disagrees with that.

[00:17:56] Speaker 02:
But notes like that just lend further to the uncertainty about whether or not that condition prevented him from filing at that time.

[00:18:03] Speaker 02:
There was similar uncertainty about whether the depression prevented him from filing.

[00:18:09] Speaker 02:
As I noted, he was already engaged in litigation with the pursuing his removal through the arbitration process.

[00:18:17] Speaker 02:
And while he argues now that

[00:18:20] Speaker 02:
the FLRA process by which he pursued against his union for dropping him basically prevented him, or if he argued that it was a passive matter.

[00:18:31] Speaker 02:
And if it was a passive matter in March, such that it didn't count as a second matter for him then, it should not also count as a second matter in August 2009 preventing him from filing an appeal.

[00:18:45] Speaker 02:
And then for his anxiety,

[00:18:48] Speaker 02:
His anxiety, and I understand the petitioner continues to say these all existed all the time, but his anxiety was not even diagnosed until August 2010.

[00:18:57] Speaker 02:
And then it didn't appear in any notes until approximately 2011, 2012.

[00:19:03] Speaker 02:
But anxiety was never actually a condition attributed to him until at least August 2010, well after the period of untimeliness to board plan.

[00:19:14] Speaker 02:
Ultimately, the burden was on him to clear up the uncertainty from all these different medical notes as to whether or not he was prevented by his conditions from filing.

[00:19:23] Speaker 02:
He didn't do that.

[00:19:25] Speaker 02:
So because he did not, the board correctly dismissed his appeal for untimeliness.

[00:19:31] Speaker 02:
Do this panel have any further questions?

[00:19:34] Speaker 02:
Yes, the panel affirmed the board for dismissal of untimeliness.

[00:20:00] Speaker 01:
Your Honor, there's a few points on rebuttal.

[00:20:02] Speaker 01:
With respect to the issues of whether or not Mr. Percallo was able to convey and explain why his conditions prevented him from filing, or as the standard has been held in, for example, Washington versus the Department of Navy, a case from 2006, the language that is used there is whether it affected or impaired.

[00:20:29] Speaker 01:
Now, we understand that the Lacey standard, which is from 1998, uses the word prevented.

[00:20:33] Speaker 01:
But subsequent cases seem to have taken a more gentle approach to the level that is applied or the level that is required to explain why a filing could not have occurred.

[00:20:44] Speaker 01:
There seems to be more of a development across the course of history to show that a lighter standard, or as Judge Stark put it,

[00:20:57] Speaker 01:
level of sufficiency to explain what had happened and why the petitioner was unable to file the petition, but it doesn't require showing that they were simply incapable of doing so.

[00:21:11] Speaker 03:
But your appeal doesn't ask us to determine what standards should apply.

[00:21:15] Speaker 03:
We should take as given the Lacey standard, the Washington versus Navy standard, and all the other standards you've argued to us.

[00:21:23] Speaker 01:
Yes, Your Honor.

[00:21:25] Speaker 01:
And we argue that the evidence that was presented below meets that standard.

[00:21:31] Speaker 01:
Mr. Pakala has suffered from PTSD and depression.

[00:21:34] Speaker 01:
And certainly he continued to do so in March of 2010.

[00:21:39] Speaker 01:
And he had the same conditions in the spring of 2009.

[00:21:43] Speaker 01:
The fact that there is no medical evidence from that period of time is really more indicative of the fact that he lost his insurance and was unable to see a medical professional at that point in time, who could supply the relevant evidence to support Mr. Propala's statement that he was suffering at the time, the two periods of time in question.

[00:22:03] Speaker 01:
Now, with respect to counsel's argument with respect to Earl versus Nesby, the critical difference is the entirety of the period that is covered.

[00:22:11] Speaker 01:
Now, the distinction in Nesby is that only evidence was presented with respect to part of the time, whereas here, we have evidence that spans the entirety of the time, both before, between, and after the two contested periods.

[00:22:24] Speaker 01:
The other point that I would like to raise is the agency has still not addressed any issues of prejudice to the agency to address this hearing on the merits.

[00:22:32] Speaker 01:
And certainly, there is a presumption, especially when a petitioner is moving forward pro se, that if a petitioner has articulated a good reason for the delay, all reasonable efforts should be made to have a hearing on the merits.

[00:22:48] Speaker 01:
And since the agency has not identified any prejudice, we ask that this court

[00:22:52] Speaker 01:
find, remand the case for a hearing on the merits.

[00:22:55] Speaker 04:
Thank you, Your Honors.