Brent Amos v. Department of Justice ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENT W. AMOS, DOCKET NUMBER
Appellant, DA-0752-98-0122-I-1
v.
DEPARTMENT OF JUSTICE, DATE: December 5, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant.
Cyntrena Cross-Peart, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as settled. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
¶2 A petition for review must be filed within 35 days after the issuance of the
initial decision. See 5 C.F.R. § 1201.114(e). The Board will waive this time
limit only upon a showing of good cause for the delay in filing. 5 C.F.R.
§§ 1201.12, 1201.114(g). To establish good cause for the untimely filing of a
petition, an appellant must show that he exercised due diligence or ordinary
prudence under the particular circumstances of his case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980).
¶3 The discovery of new evidence may establish good cause for the untimely
filing of a petition for review if the evidence was not readily available befor e the
close of the record below and is of sufficient weight to warrant a different
outcome from that of the initial decision. See Jones v. Department of
Transportation, 69 M.S.P.R. 21, 26 (1995), aff’d, 111 F.3d 144 (Fed. Cir. 1997)
(Table). When, as here, the initial decision dismissed an appeal as settled, newly
discovered evidence would warrant a different outcome—thus establishing good
cause for an untimely petition for review—if the evidence showed that the
settlement agreement was invalid. Id. A settlement agreement is a contract
between the parties and, as such, may be set aside or voided only on the basis of
certain limited grounds, including fraud, coercion, or mutual mistake. Hamilton
v. Department of Veterans Affairs, 92 M.S.P.R. 467, ¶ 7 (2002).
¶4 On April 17, 2017, the appellant filed a petition for review of the March 16,
1998 initial decision, approximately 19 years late. Petition for Review (PFR)
File, Tab 2. He asks the Board to set aside its filing deadline because of his
discovery of alleged new evidence on February 15, 2017, that purportedly showed
that the agency breached the 1998 settlement agreement. PFR File, Tab 4. The
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alleged new evidence does not relate to or challenge the validity of the
agreement. 2
¶5 The appellant filed his petition for review 61 days after discovering the
alleged new evidence. PFR File, Tabs 2, 4. We find his delay demonstrates that
he failed to exercise due diligence in filing his petition for review. See Graves v.
Department of Veterans Affairs, 82 M.S.P.R. 38, ¶ 12 (1999) (finding that the
appellant failed to show good cause for the late filing of his petition for review
when he waited over 1 month after discovering alleged evidence of fraud in the
settlement before filing a pleading with the Board); Saunders v. Department of
the Interior, 56 M.S.P.R. 671, 673–74 (1993) (explaining that the appellant did
not show due diligence or ordinary prudence when he delayed for 8 weeks before
raising the agency’s alleged misrepresentation in relation to a settlement
agreement).
¶6 Even if the appellant could demonstrate that he exercised due diligence in
filing his petition, we find that the proffered new evidence is not of sufficient
weight to warrant an outcome different from the initial decision because the
evidence does not relate in any way to the validity of the settlement agreement at
issue. See Ramey v. Merit Systems Protection Board, 476 F. App’x 253, 256
(2012) (affirming the Board’s dismissing a petition for review as untimely filed
when, among other things, the proffered new evidence did not relate to the
validity of the settlement agreement and therefore was unlikely to change the
result of the initial decision) 3; Jones, 69 M.S.P.R. at 26.
2
The appellant’s allegations of breach of the 1998 settlement agreement are addressed
separately by the Board in a compliance proceeding. Amos v. Department of Justice,
MSPB Docket No. DA-0752-98-0122-C-2.
3
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
4
¶7 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the appellant’s removal appeal as settled.
NOTICE OF APPEAL RIGHTS 4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
6
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.