Thurman v. Merit System Protection Board ( 2014 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PETER C. THURMAN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3045
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-3443-12-0727-I-1.
______________________
Decided: June 9, 2014
______________________
PETER C. THURMAN, of Bremerton, Washington, pro
se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before TARANTO, BRYSON, and HUGHES, Circuit Judges.
2 THURMAN v. MSPB
PER CURIAM.
Peter Thurman appeals from a final decision of the
Merit Systems Protection Board that dismissed as un-
timely his claim that the Department of the Navy im-
properly suspended him. Because we find no legal error
or other abuse of discretion, we affirm.
BACKGROUND
Mr. Thurman worked for the Navy for almost thirty
years, most recently as a Mechanical Engineer at the
Naval Facilities Engineering Command in Bremerton,
Washington. To serve in that position, which is designat-
ed “non-critical, sensitive,” Mr. Thurman had to obtain
and maintain a security clearance.
On April 30, 2012, Mr. Thurman was arrested and
charged with simple assault and possession of a loaded
weapon. On May 8th, the agency, based on the arrest,
issued a Proposed Suspension of Access to Classified
Information. That same day, Mr. Thurman attended a
meeting about the proposed suspension. On May 14th,
the agency suspended his access to classified information
pending a final decision about whether to revoke his
security clearance, a decision to be made by the Depart-
ment of Navy Central Adjudication Facility (DON CAF).
On May 16, 2012, the agency sent Mr. Thurman a No-
tification of Proposed Indefinite Suspension (from em-
ployment), which stated: “On 14 May 2012, your eligibility
for access to classified information and areas was sus-
pended. Accordingly, you are unable to satisfy a require-
ment of your position.” Resp. App. 39.
On May 21st, Mr. Thurman emailed Lieutenant
Commander Haverly, the official identified in the May
16th Notification as deciding whether to suspend Mr.
Thurman from his job. Mr. Thurman asked to see the
material that the agency relied on when proposing to
suspend him indefinitely, including the police report from
THURMAN v. MSPB 3
his April 30th arrest. Lt. Cdr. Haverly responded to Mr.
Thurman’s his email, stating that a Human Resources
Specialist would get back to him. Mr. Jamrog, the Hu-
man Resources Specialist, then contacted Mr. Thurman,
initiating a series of emails between the two. On May
23rd, Mr. Thurman twice emailed Mr. Jamrog, asking
seven detailed questions about the May 16th Notification
and thanking Mr. Jamrog for attempting to answer all
seven questions.
On June 20, 2012, the agency decided to indefinitely
suspend Mr. Thurman starting June 22nd. In a letter
notifying Mr. Thurman of the indefinite suspension, Lt.
Cdr. Haverly stated that if DON CAF decides to revoke
his security clearance, the Navy will propose to remove
him from employment, whereas the Navy will return him
to duty status if DON CAF does not revoke the security
clearance. In the interim, Lt. Cdr. Haverly said, Mr.
Thurman “will be carried on the rolls in a non-duty, non-
pay status.” Resp. App. 40. Mr. Thurman acknowledges
that he received Lt. Cdr. Haverly’s letter by June 23rd.
On August 17, 2012, Mr. Thurman appealed his indef-
inite suspension to the Board. In the Form 185-2, he
made no mention of discrimination in his brief explana-
tion of the reasons he thought that the Navy was wrong in
its suspension decision. Instead, he referred to his obedi-
ence to law, his strong record as an employee, and the
Navy’s intent to dismiss the charge of assault that
prompted the April 30th arrest.
The Board soon thereafter issued an order informing
Mr. Thurman that his appeal appeared untimely and
giving him opportunity to demonstrate that he either filed
his appeal on time or had good cause for the delay. In
response, Mr. Thurman stated that his “mental state”
provided good cause for the untimely filing—specifically,
that his “life collapsed on the morning of April 30th,
2012,” when he was arrested, an event he was “unable to
4 THURMAN v. MSPB
cope with.” Resp. App. 50. Because he “felt [he] was
going mad,” Mr. Thurman requested and received “mental
help,” after which he “regained [his] senses.” Id.
On September 18, 2012, an administrative judge, who
was acting for the Board, issued an initial decision dis-
missing Mr. Thurman’s appeal as untimely. Thurman v.
Dep’t of Navy, No. SF-3443-12-0727-I-1 (M.S.P.B. Sept.
18, 2012). The administrative judge found that Mr.
Thurman had to appeal by July 23, 2012, but instead filed
on August 17th, twenty-five days late. The administra-
tive judge also found that Mr. Thurman’s mental state did
not constitute good cause for the untimely filing.
Two days later, on September 20th, Mr. Thurman pe-
titioned for review of the initial decision. The form for the
petition asks for the reasons the petitioner thinks the
initial decision is wrong. In response, Mr. Thurman gave
reasons having to do with timeliness, then went on to say
that he “now believe[s] the Navy’s determination to
terminate [his] employment[] is retaliation for” an earlier
race-discrimination complaint he had filed. Resp. App.
30. The “determination to terminate” phrase might refer
to the June 20th suspension. Alternatively, it might refer
to the separate action by the Navy to place Mr. Thurman
on a performance improvement plan—which, in fact, led
to his proposed removal in February 2013 and his removal
thereafter. 1
1 Three days after the administrative judge’s Sep-
tember 18, 2012 dismissal of the MSPB challenge for
untimeliness, Mr. Thurman evidently filed a complaint
with the Navy alleging that his June 2012 suspension was
in reprisal for an unrelated earlier EEOC complaint and
that the April 2012 arrest was the result of discrimina-
tion. When the Navy dismissed the complaint because it
was untimely and because he had already elected the
THURMAN v. MSPB 5
On September 16, 2013, the Board issued a final order
in the suspension case, affirming the dismissal of Mr.
Thurman’s appeal as untimely. Thurman v. Dep’t of
Navy, No. SF-3443-12-0727-I-1 (M.S.P.B. Sept. 16, 2013)
(“Final Board Decision”). The Board found that “docu-
ments in the record, specifically various emails to LCDR
Haverly and the [Human Resources Specialist], support
the . . . finding that the appellant continued to ‘actively
engage’ agency officials about matters relating to his
indefinite suspension in the weeks following April 30,
2012.” Id. at *5. Those “interactions with agency officials
. . . undermine his claim that he was unable to file a
timely appeal because of his mental state.” Id. Therefore,
Mr. Thurman “failed to establish that the delay in filing
his Board appeal was the result of illness or medical
condition.” Id. at *7.
Mr. Thurman timely appealed the Board’s final deci-
sion to this court.
MSPB remedy, Mr. Thurman sued in the United States
District Court for the Western District of Washington.
That court dismissed the suit, interpreting it to challenge
the June 2012 suspension and finding Mr. Thurman’s
election of MSPB remedies to be one of two sufficient
bases for dismissal. Although the government’s motion
seemingly did not so state, the district court said that Mr.
Thurman had “failed to include a claim of discrimina-
tion . . . in the MSPB proceeding.” Resp. Supp. App. 35.
That statement may have overread a statement by the
administrative judge concerning special timing rules for
mixed cases. Resp. App. 14. The online docket sheet of
the Washington case records no notice of appeal from that
decision.
6 THURMAN v. MSPB
DISCUSSION
The record on appeal raises a question bearing on the
exclusion from this court’s jurisdiction of “case[s] of dis-
crimination” coming from the Board under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. §§ 7702, 7703(b)(1). See Kloeck-
ner v. Solis, 133 S. Ct. 596 (2012). The question is wheth-
er one basis for Mr. Thurman’s challenge to his June 2012
suspension in his effort to seek relief from the Board is
racial discrimination prohibited by the Civil Rights Act of
1964. That question is prompted by Mr. Thurman’s
allegation, in his September 20, 2012 petition for review
to the Board, that the “determination to terminate” him
was retaliation for his earlier race-discrimination filing.
Resp. App. 30.
The fact that timeliness was the only issue ripe for
decision in the Board review of the administrative judge’s
pre-merits dismissal—as is common with timeliness and
other procedural dismissals—hardly means that discrimi-
nation was not one of the alleged bases for challenging the
adverse action. Nor does the fact that timeliness is the
only issue ripe for decision in this court mean that this is
not a case of discrimination. Moreover, a case of retalia-
tion can be a case of discrimination outside this court’s
jurisdiction. Diggs v. Dep’t of Housing & Urban Dev., 670
F.3d 1353 (Fed. Cir. 2011). Further, not all grounds for
challenging an adverse action need to be stated in the
original appeal documents. 5 C.F.R. § 1201.24(b). 2 Per-
2 5 C.F.R. § 1201.24(b) states: “An appellant may
raise a claim or defense not included in the appeal at any
time before the end of the conference(s) held to define the
issues in the case. An appellant may not raise a new claim
or defense after that time, except for good cause shown.
However, a claim or defense not included in the appeal
may be excluded if a party shows that including it would
result in undue prejudice.”
THURMAN v. MSPB 7
haps a claim of discrimination first made in a petition for
review to the Board can make a case one of discrimination
excluded from our jurisdiction: if such a claim is clearly
presented but barred in the Board, the bar might be fairly
treated as procedural, not jurisdictional, which might
make the case one of discrimination under Kloeckner. But
we need not and do not decide that question, in general or
in the circumstances of this case.
In this court, Mr. Thurman squarely asserts that
“[t]he case is not a ‘case of discrimination’ that is excluded
from this court’s jurisdiction by 5 U.S.C. 7702 and
7702(b)(2),” that he “did not claim a 1964 civil rights
violation in [his] Board appeal,” and that he “did not
present a claim to the Board that made this a ‘case of
discrimination.’” Thurman v. Merit Sys. Prot. Bd., No 14-
3045 (Fed. Cir. May 21, 2014) (ECF No. 22). We take
those statements to be an abandonment, for purposes of
his MSPB case No. SF-3443-12-0727-I-1, of any allegation
that would make this a case of discrimination. On that
basis, we conclude that we have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1). 3
On the merits, this court must uphold a decision of
the Board unless it is “(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.” 5 U.S.C. § 7703(c). Because we
find none of those defects, we affirm the dismissal of Mr.
Thurman’s appeal.
Under 5 C.F.R. § 1201.22(b)(1), an appeal to the
Board “must be filed no later than 30 days after the
3 We grant the government’s motion to allow the
late filing of its response to this court’s order of April 24,
2014.
8 THURMAN v. MSPB
effective date, if any, of the action being appealed, or 30
days after the date of the appellant’s receipt of the agen-
cy’s decision, whichever is later.” Mr. Thurman does not
dispute that his appeal was untimely. Because he re-
ceived the agency’s indefinite-suspension decision on June
23, 2012, he had until July 23rd to file an appeal to the
Board. He filed his appeal on August 25th, twenty-five
days after the deadline.
If, as here, an appeal is untimely, it “will be dismissed
. . . unless a good reason for the delay is shown.” 5 C.F.R.
§ 1201.22(c). Mr. Thurman bears the burden of proving
that good cause existed for the delay. See 5 C.F.R.
§ 1201.56(a)(2)(ii). “[W]hether the regulatory time limit
for an appeal should be waived based upon a showing of
good cause is a matter committed to the Board’s discretion
and this court will not substitute its own judgment for
that of the Board.” Mendoza v. Merit Sys. Prot. Bd., 966
F.2d 650, 653 (Fed. Cir. 1992) (en banc).
It was not an abuse of discretion for the Board to con-
clude that Mr. Thurman had not shown good cause for his
delay. Mr. Thurman relied on his “mental state” after
being arrested on April 30, 2012, stating that he “was
unable to cope” with the arrest and, therefore, “tried to
block it all out in hope it would just go away.” Resp. App.
50. The Board, in considering whether Mr. Thurman’s
mental health provided good cause, found—and Mr.
Thurman does not dispute—that he had a series of inter-
actions with agency officials after receiving the Notifica-
tion of Proposed Indefinite Suspension on May 16th. The
Board specifically relied on his May 21st email to Lt. Cdr.
Haverly and on his two May 23rd emails to Mr. Jamrog to
find that he “continued to ‘actively engage’ agency officials
about matters relating to his indefinite suspension in the
weeks following April 30, 2012.” Final Board Decision, at
*5. While Mr. Thurman’s emails to Lt. Cdr. Haverly and
Mr. Jamrog were sent before the period he could have and
should have appealed his suspension (June 23rd to July
THURMAN v. MSPB 9
23rd), they do, as the Board found, “undermine his claim
that he was unable to file a timely appeal because of his
mental state” after his April 30th arrest. Id. Accordingly,
the Board acted within its discretion in concluding that
Mr. Thurman “failed to establish that the delay in filing
his Board appeal was the result of an illness or medical
condition.” Id. at *7.
CONCLUSION
For the foregoing reasons, we affirm the Board’s dis-
missal of Mr. Thurman’s claim.
AFFIRMED
No costs.