Christopher Dionne v. Department of the Navy ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER DIONNE, DOCKET NUMBERS
Appellant, AT-0752-20-0151-I-1
AT-0752-20-0359-I-1
v.
DEPARTMENT OF THE NAVY, DATE: JULY 6, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Christopher Dionne, Millington, Tennessee, pro se.
Carol M. Lynch, Pensacola, Florida, for the agency.
Marcus S. Lawrence, Jr., NAS Pensacola, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed petitions for review of two initial decisions, one of
which was dismissed for lack of jurisdiction, and the other of which was
dismissed as withdrawn based on the appellant’s voluntary request for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
withdrawal. Dionne v. Department of the Navy, MSPB Docket No AT-0752-20-
0359-I-1, Petition for Review (0359 PFR) File, Tab 1; Dionne v. Department of
the Navy, MSPB Docket No. AT-0752-20-0151-I-1, Petition for Review
(0151 PFR) File, Tab 1. For the reasons set forth below, we JOIN these appeals 2
and DISMISS the appellant’s petitions for review as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 The appellant is employed as a GS-12 Operations Research Analyst with the
agency. Dionne v. Department of the Navy, MSPB Docket No. AT-0752-20-
0151-I-1, Initial Appeal File (0151 IAF), Tab 5 at 42. By a letter dated
October 8, 2019, the agency proposed to suspend the appellant’s access to
classified information and national security sensitive information systems,
pending final adjudication of the eligibility determination by the Department of
Defense Consolidated Adjudication Facility (DoDCAF). Id. at 39-40. In a letter
dated October 9, 2019, the agency also proposed to indefinitely suspend the
appellant based on the suspension of his access to classified information and
national security sensitive information systems. Id. at 36-37. The notice
informed the appellant that, if the decision to suspend him was reached, the
suspension would remain in effect until a final eligibility determination by
DoDCAF. Id. Effective that same day, the agency placed the appellant on p aid
administrative leave for 30 days. Id. at 33-34.
¶3 The appellant provided written and oral responses to the interim suspension
notice. Id. at 24, 28-31. After considering the appellant’s reply, by a letter dated
2
Joinder of two or more appeals filed by the same appellant may be appropriate when
joinder would expedite processing of the appeals and would not adversely affect the
interests of the parties. Boechler v. Department of the Interior, 109 M.S.P.R. 542, ¶ 14
(2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We
find that these appeals meet the regulatory criteria, and therefore, we join them.
3
October 31, 2019, the deciding official sustained the proposal, imposing the
indefinite suspension, effective immediately. Id. at 21-22. The appellant timely
filed a Board appeal challenging his indefinite suspension and requested a
hearing. 0151 IAF, Tab 1. The appellant subsequently requested to withdraw his
appeal, stating that he instead intended to challenge the suspension of access
determination with DoDCAF or the Personnel Security Appeals Board .
0151 IAF, Tab 16. Based on the appellant’s request, on March 9, 2020, the
administrative judge issued an initial decision dismissing the appeal as
withdrawn, concluding that the appellant’s request was “clear, unequivocal, and
decisive.” 0151 IAF, Tab 17, Initial Decision (0151 ID) at 1-2.
¶4 On March 16, 2020, the appellant filed a separate Board appeal purportedly
challenging his “suspension without cause,” and identified May 9, 2019 as the
effective date of the agency action. Dionne v. Department of the Navy, MSPB
Docket No. AT-0752-20-0359-I-1, Initial Appeal File (0359 IAF), Tab 1. In
response, the agency moved to dismiss the appeal for lack of jurisdiction, arguing
that the appellant had not suffered an appealable adverse action, or in the
alternative, that the appeal was untimely filed without good cause for the delay.
0359 IAF, Tab 5 at 6-8. Specifically, the agency noted that the appellant was
placed on paid administrative leave for 10 days from May 13, 2019 through
May 22, 2019, which the appellant incorrectly identified as a “suspe nsion,” and
that the appellant did not file a Board appeal challe nging the action until nearly
1 year later. Id. at 6. Because the appellant had not asserted that he was subject
to an appealable adverse action, the agency argued that the Board should dis miss
the appeal for lack of jurisdiction. Id. at 7. The appellant did not file a response
to the agency’s motion. In an initial decision dated May 15, 2020, the
administrative judge dismissed the appeal, concluding that the appellant had not
suffered an appealable adverse action when he was placed on administrative leave
for 10 days, with pay, and so the Board lacked jurisdiction over the appeal. 0359
IAF, Tab 6, Initial Decision (0359 ID) at 1-3.
4
¶5 On October 1, 2020, the appellant filed a pleading with the regional office
titled “Reopening an Appeal Dismissed Without Prejudice,” challenging the
merits of the agency’s decision suspending his access to classified information
and arguing that the agency violated his right to due process. 0151 PFR File,
Tab 1; 0359 PFR File, Tab 1. Because it was unclear whether the appellant
intended his pleading as a petition for review of the 0359 appeal or the 0151
appeal, or both, the Office of the Clerk of the Board sought clarification of the
intent of the appellant’s filing. 0151 PFR File, Tab 2; 0359 PFR File, Tab 2. The
appellant filed a response clarifying that he intended his pleading as a petition for
review of both appeals. 0151 PFR File, Tab 3; 0359 PFR File, Tab 3.
Consequently, the Clerk’s Office issued an order acknowledging the appellant’s
October 1, 2020 filing as a petition for review of both initial decisions. 0151 PFR
File, Tab 5; 0359 PFR File, Tab 4. Because the pleading was received after the
April 13, 2020 and June 19, 2020 initial decision finality dates, respectively, the
Clerk’s Office informed the appellant that his petitions for review were untimely
and that he must submit a “Motion to Accept Filing as Timely or to Waive Time
Limit” either by an affidavit or a statement signed under pena lty of perjury. 0151
PFR File, Tab 5 at 2-3; 0359 PFR File, Tab 4 at 2-3. Blank sample motions were
attached to both acknowledgment letters. 0151 PFR File, Tab 5 at 8-9; 0359 PFR
File, Tab 4 at 8-9. The acknowledgment letters further stated that the appellant’s
motions must be submitted on or before November 24, 2020. 0151 PFR File,
Tab 5 at 3; 0359 PFR File, Tab 4 at 2. The acknowledgment letters informed the
appellant that he must show good cause for the Board to waive his untimeliness,
and instructed him on how to do so. 0151 PFR File, Tab 5 at 2-3, 8; 0359 PFR
File, Tab 4 at 2, 8. The appellant did not file motions to accept his untimely
petitions for review or to waive the time limit.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Here, the initial
decisions stated that they would become final on April 13, 2020 and June 19,
2020, respectively, unless petitions for review were filed by those respective
dates. See 0151 ID at 2; 0359 ID at 3. The appellant makes no allegation that he
did not receive either of the initial decisions or that he received them more than
5 days after they were issued. The appellant’s petitions for review were sent to
the Atlanta Regional Office on October 1, 2020, and were referred to the Office
of the Clerk of the Board on October 21, 2020. See 0151 PFR File, Tab 5 at 1;
0359 PFR File, Tab 4 at 1. Therefore, the appellant’s petitions for review were
filed over 5 months late and over 3 months late, respectively.
¶7 The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that he exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and the party’s 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. Id.6
¶8 We conclude that the appellant has failed to show good cause for a waiver
of the filing deadline. Even considering the appellant’s pro se status, the
appellant’s minimum 3-month delay is not minimal. See Wright v. Department of
the Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is
not minimal); Allen v. Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8,
10 (2004) (declining to excuse a pro se appellant ’s 14-day, unexplained delay in
filing a petition for review); Crozier v. Department of Transportation,
93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing is not minimal).
Additionally, the appellant has not presented evidence of due diligence or the
existence of circumstances beyond his control that affected his ability to file his
petitions. Further, despite being afforded the opportunity to do so, the appellant
has not offered any explanation for his delay in filing. Accordingly, we dismiss
the petitions for review as untimely filed. This is the final decision of the Merit
Systems Protection Board regarding the timeliness of these petitions for review.
The initial decisions remain the final decisions of the Board regarding the
withdrawal of the appeal challenging his indefinite suspension (0151 appeal) and
the appellant’s challenge to his placement on paid administrative leave
(0359 appeal). 3
3
In his petition for review the appellant also appears to argue that new and material
evidence exists that warrant reopening his appeal. See 0151 PFR File, Tab 1 at 4-6;
0359 PFR File, Tab 1 at 4-6. Although the appellant has not provided copies of the
documents he refers to with his petition for review, none of the docume nts he
references are new or material and so we have not considered them. See Okello v.
Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under
5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first
time with a petition for review absent a showing th at it is both new and material). The
document identified as “CNRC Suspension of Access to Classified Material dated 8 Oct
2019,” appears to refer to material already included in the record below, and thus is not
new. 0151 IAF, Tab 5 at 39-40; see Meier v. Department of the Interior, 3 M.S.P.R.
247, 256 (1980) (explaining that evidence that is already a part of the record is not
new). The document titled “A Report to the President and the Congress of the United
States by the U.S. Merit Systems Protection Board May 2015,” is dated to well before
7
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 case s 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.
the close of record in these cases, and therefore is not “new.” See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 214 (1980) (explaining that, under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence submitted for the first time on review
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence). Finally, regarding the document titled “JG FOIA Email dated 25
Sep 2020,” which appears to be a 286-page document the appellant may have received
as a result of a Freedom of Information Act (FOIA) request, the appellant has not
explained how the document is material, and therefore it does not warrant a different
outcome in these appeals. 0151 PFR File, Tab 1 at 4-5; 0359 PFR File, Tab 1 at 4-5;
see Okello, 112 M.S.P.R. 563, ¶ 10. Specifically, the appellant has not explained how
the document has any bearing on the voluntariness of his withdrawal in the 0151 appeal,
or on the dispositive jurisdictional issue in the 0359 appeal.
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.
8
(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.
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
9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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
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:
10
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
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.
11
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.