Wayne Smith v. Department of Energy ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WAYNE DARNELL SMITH, DOCKET NUMBER
Appellant, DC-0752-19-0612-I-1
v.
DEPARTMENT OF ENERGY, DATE: June 21, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Wayne Darnell Smith , Fort Washington, Maryland, pro se.
Jocelyn E. Richards , Esquire, and Jenny Knopinski , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed by 59 days
without good cause shown. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On October 2, 2019, the administrative judge issued an initial decision
dismissing the appellant’s termination appeal for lack of jurisdiction. Initial
Appeal File (IAF), Tab 15, Initial Decision (ID). On January 4, 2020, the
appellant filed a petition for review. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to show good cause for the 59-day delay in filing his
petition for review.
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that he received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date he
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the administrative
judge advised the appellant that the initial decision would become final on
November 6, 2019, unless a petition for review was filed by that date. ID at 8.
The administrative judge further informed the appellant that, if he proved that he
received the initial decision more than 5 days after the date of issuance, he could
file a petition for review within 30 days after the date of receipt. Id.The record reflects that the appellant, a registered e-filer, received the
initial decision on October 2, 2019, the date of issuance, via electronic mail.
IAF, Tab 1 at 2, Tab 16; see 5 C.F.R. § 1201.14(m)(2) (providing that Board
documents served electronically on registered e-filers are deemed received on the
date of electronic submission). On the online interview form, the appellant states,
without explanation, that he received the initial decision on “November 6, 2009 at
12:00:00 AM.” PFR File, Tab 1 at 3. Construing his pleading liberally, we
conclude that the appellant asserts that he received the initial decision on
November 6, 2019, which was 35 days after its issuance. See Melnick v.
Department of Housing & Urban Development, 42 M.S.P.R. 93, 97 (1989)
(holding that pro se pleadings are to be liberally construed), aff’d, 899 F.2d 12283
(Fed. Cir. 1990) (Table). The appellant has not presented any factual allegations
or evidence to explain or corroborate his bare assertion that he did not receive the
initial decision until this date. To the contrary, we find that the record reflects
that the appellant received the initial decision on October 2, 2019. IAF, Tab 1
at 2, Tab 16. Thus, the deadline for filing a petition for review was November 6,
2019. See 5 C.F.R. § 1201.114(e). Accordingly, the appellant’s petition for
review filed on January 4, 2020, is untimely by 59 days. Id. 2
The Board will waive the time limit for filing a petition for review only
upon a showing of 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. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant 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 file a timely petition. 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).
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. The Acting Clerk of the Board notified
the appellant that his petition for review was untimely and gave him an
opportunity to demonstrate good cause for his untimely filed petition . PFR File,
Tab 2 at 1-2, 7-8. Although the appellant is pro se, a 59-day delay is lengthy and
2
Even assuming that the appellant received the initial decision on November 6, 2019,
the deadline for filing a petition for review would have been 30 days later on
December 6, 2019. See 5 C.F.R. § 1201.114(e). Thus, at a minimum, the appellant’s
petition for review is untimely by 29 days, which is a significant delay. We would still
dismiss the petition for review because the appellant has not established good cause for
such a delay as explained below.
4
the appellant provides no explanation for his late filing despite being given an
opportunity to do so. Instead, he challenges the merits of the agency’s removal
action , stating, “I respectfully request the entire MSPB review of this decision by
filing a petition for review.” PFR File, Tab 1 at 3-4. The Board has consistently
denied a waiver of the filing deadline if a good reason for the delay is not shown,
even when the appellant is pro se. See Cabarloc v. Department of Veterans
Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se
appellant’s 10-day delay in filing a petition for review when he failed to respond
to the Clerk’s notice regarding timeliness). Moreover, merely challenging the
merits of the agency’s removal action does not establish good cause for waiving
the filing deadline. See Guevara v. Department of the Navy, 112 M.S.P.R. 39, ¶ 7
(2009) (finding that the appellant failed to establish good cause for his untimely
filed petition for review when he merely argued the merits of the agency’s
removal action). The appellant’s failure to address the timeliness of his petition
for review and the lack of evidence of circumstances beyond his control or of
unavoidable casualty or misfortune that prevented him from filing a timely
petition for review weigh against finding good cause.
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 Board’s jurisdiction over this appeal.
5
NOTICE OF APPEAL RIGHTS 3
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
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:
3
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.
6
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. 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
7
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:
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
8
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. 4 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.
4
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.