David Mullins v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID T. MULLINS, DOCKET NUMBER
Appellant, CH-3443-19-0122-I-1
v.
DEPARTMENT OF JUSTICE, DATE: May 16, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David T. Mullins , Corbin, Kentucky, pro se.
James Sellars , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the agency’s decision not to select him for a
promotion for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
The appellant applied for a position with his employing agency but was not
selected. Initial Appeal File (IAF), Tab 1 at 5. On December 3, 2018, the
appellant filed the instant appeal challenging his nonselection and requested a
hearing, arguing that he was better qualified for the position than the applicant
who was selected and alleging that his nonselection was in reprisal for an ongoing
Equal Employment Opportunity complaint he had against the agency. Id.The administrative judge issued an acknowledgement order in which she
notified the appellant of his burden of proof to establish Board jurisdiction over
his appeal, explained the limited circumstances under which the Board has
jurisdiction over nonselection appeals, and ordered the appellant to file evidence
and argument as to why the Board had jurisdiction over the matter within 10 days
of the date of her order. IAF, Tab 2 at 2-3. The appellant did not file a response
to the order, and the agency moved to dismiss the appeal. IAF, Tab 4. Without
holding the appellant’s requested hearing, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction, finding that the
appellant failed to make a nonfrivolous allegation that the Board had jurisdiction
over his appeal. IAF, Tab 6, Initial Decision (ID) at 1, 5. The initial decision
included instructions noting that it would become final on March 4, 2019, unless
a petition for review was filed by that date. ID at 5.
On March 5, 2019, the appellant filed a “Request for Extension of Time to
File PFR,” which the Board treated as an untimely petition for review. Petition
for Review (PFR) File, Tab 1. The following day, the Clerk of the Board issued
an acknowledgment letter informing the appellant that his petition for review was
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 penalty of
perjury. PFR File, Tab 2 at 1-2. A blank sample motion was attached to the
acknowledgment letter. Id. at 7-8. The acknowledgment letter further stated that
the appellant’s motion must be submitted on or before March 21, 2019. Id. at 2.
The acknowledgment letter informed the appellant that he must show good cause
3
for the Board to waive his untimeliness, and instructed him on how to do so.
Id. at 2, 7. The appellant has not filed a motion to accept his untimely petition
for review or to waive the time limit.
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 issuance, within
30 days after the date he received the initial decision. 5 C.F.R. § 1201.114(e).
Here, the appellant has not alleged or established that he received the initial
decision more than 5 days after its issuance on January 28, 2019. See ID at 1.
Thus, any petition for review was due no later than March 4, 2019, making his
petition for review, filed on March 5, 2019, untimely by 1 day. ID at 5.
The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. § 1201.114(g). To determine if 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 which similarly shows a causal
relationship to his inability to timely file his 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 made a showing of good cause.
Although the brevity of the appellant’s 1-day delay and the fact that he is pro se
weigh in favor of excusing the delay, in the interest of judicial efficiency and
fairness, the appellant must show good cause for the delay in order for the Board
to waive the filing deadline, regardless of how minimal the delay. Katovich v.
Department of the Air Force, 58 M.S.P.R. 444, 446 (1993); McDonnell v. Office
of Personnel Management, 43 M.S.P.R. 400, 402 (1990); Stromfeld v. Department
of Justice, 25 M.S.P.R. 240, 241 (1984) (concluding that a petition for review
4
filed 1 day late was not excused where the appellant offered no reasonable excuse
for the delay); see Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶¶ 9-10 (2017)
(declining to excuse a 1-day delay in filing an initial appeal when the appellant
failed to otherwise establish good cause for the untimeliness); 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) . As
previously noted, the initial decision expressly apprised the appellant that “[t]his
initial decision will become final on March 4, 2019 , unless a petition for review
is filed by that date.” ID at 5 (emphasis in original). The appellant has not
offered any explanation for his untimeliness, despite being afforded the
opportunity to do so.
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 appellant’s nonselection appeal.
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).
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
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
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.
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.
6
(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
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:
7
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 any court of appeals of
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).
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.
8
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.
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.