John Markham v. Department of the Army ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN MARKHAM, DOCKET NUMBER
Appellant, SF-3443-20-0726-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 7, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John Markham, Cedar Rapids, Iowa, pro se.
Regan Elisabeth Russell, Joint Base Lewis-McChord, Washington, for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed by 494 days without good cause shown. 5 C.F.R.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
§ 1201.114(e), (g). The initial decision remains the final decision regarding
jurisdiction over this appeal as expressly MODIFIED to find that the Board also
lacks jurisdiction over the appellant’s purported claims of defamation, theft, and
breach of contract.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 In September 2020, the appellant filed a Board appeal challenging the
circumstances surrounding the alleged premature termination of his personal
services contract with the agency, wherein he contracted to provide services as a
Cardiac Perfusionist at the agency’s Madigan Army Medical Center between 2007
and 2009. Initial Appeal File (IAF), Tab 1 at 1, 3-5. On November 16, 2020, the
administrative judge issued an initial decision dismissing the appeal for lack of
jurisdiction. IAF, Tab 17, Initial Decision (ID) at 1-6. In the initial decision, the
administrative judge notified the appellant of his appeal rights and stated that the
decision would become final on December 21, 2020, unless a petition for review
was filed by that date. ID at 6-14. On April 29, 2022, the appellant filed a
petition for review, 494 days after the initial decision became final. Petition for
Review (PFR) File, Tab 1. The Office of the Clerk of the Board advised the
appellant that his petition for review was untimely and instructed him how to file
a motion to establish good cause for the untimely filing. PFR File, Tab 2 at 1-2.
Thereafter, the appellant filed a pleading stating that the Board informed him that
he did not have appeal rights and that he did not have legal r epresentation.
PFR File, Tab 5 at 1-2. He also made several arguments related to the merits of
the agency’s alleged premature termination of his contract. Id.
¶3 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive its filing deadline only upon a showing of
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good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good
cause for an untimely filing, the appellant must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his 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 that
similarly shows a causal relationship to his inability to timely file his petition for
review. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶4 The appellant’s petition for review was due on December 21, 2020. ID at 6 ;
see 5 C.F.R. § 1201.114(e). It was filed 494 days late, on April 29, 2022.
PFR File, Tab 1. Applying the factors above, we find that the appellant has failed
to establish good cause for his approximately 1 1/2-year delay in filing his
petition for review. Although he is proceeding pro se, the initial decision set
forth the procedures and time limits that the appellant was required to follow if he
wished to appeal, and a 1 1/2-year delay is significant. See Johnson v. U.S.
Postal Service, 66 M.S.P.R. 604, 608 (1995) (finding the appellant failed to
establish good cause for his 1-year delay in filing his petition for review
notwithstanding his discouragement at the likely outcome of the pe tition for
review and his inability to obtain representation); see also De Vaughn v. U.S.
Postal Service, 96 M.S.P.R. 427, ¶¶ 8-9 (2004) (stating that pro se status alone is
insufficient to establish good cause for an untimely filing when the appellant was
clearly notified of the time limit within which to file his petition). Inability to
obtain representation does not constitute good cause for an untimely filing.
Johnson, 66 M.S.P.R. at 608. Finally, the appellant’s arguments about the merits
4
of the agency’s action are irrelevant to the issue of the timeliness of the petitio n
for review. See, e.g., Abney v. Office of Personnel Management, 89 M.S.P.R.
305, ¶ 4 (2001) (stating that merits arguments do not establish good cause for an
untimely filing), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).
¶5 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 deci sion of the
Board regarding jurisdiction over the appeal, as expressly modified by this
paragraph. The initial decision explicitly dismissed the appellant’s IRA and
discrimination claims for lack of jurisdiction. ID at 1-6. To the extent the
appellant sought to file claims against the agency asserting breach of contract,
defamation, and theft, IAF, Tab 1 at 3-5, we clarify that the Board also lacks
jurisdiction over those claims, see Maddox v. Merit Systems Protection Board,
759 F.2d 9, 10 (Fed. Cir. 1985) (holding that the Board’s jurisdiction is limited to
those matters over which it has been given jurisdiction by law, rule, or
regulation); Ward v. Office of Personnel Management, 103 M.S.P.R. 24, ¶ 5
(2006) (noting that the Board generally lacks jurisdiction to adjudicate contract
claims brought against the United States), aff’d, 217 F. App’x 937 (Fed. Cir.
2007); Kapica v. U.S. Postal Service, 95 M.S.P.R. 556, ¶ 6 (2004) (stating that
the Board lacks jurisdiction over defamation claims).
NOTICE OF APPEAL RIGHTS 2
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).
2
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
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
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.
6
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
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
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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:
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 an y court of appeals of
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competent jurisdiction. 3 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
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.
3
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.
9
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.