William Jolley v. Department of Housing and Urban Development ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM B. JOLLEY, DOCKET NUMBERS
Appellant, AT-4324-18-0576-I-2
AT-4342-19-0041-I-1
v.
DEPARTMENT OF HOUSING AND DATE: January 22, 2024
URBAN DEVELOPMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William B. Jolley , Brunswick, Georgia, pro se.
Robert Andrew Zayac , Esquire, and Carlos Quijada , Esquire, Atlanta,
Georgia, 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
found that the appellant did not establish a Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335) (USERRA) violation with respect to a series of nonselections . 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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).
BACKGROUND
¶2 The appellant filed his first appeal in June 2018, alleging that the agency
had committed a USERRA violation with respect to his nonselection.
Jolley v. Department of Housing and Urban Development, MSPB Docket No.
AT-4324-18-0576-I-1, Initial Appeal File (0576 IAF), Tab 1. The administrative
judge dismissed the appeal without prejudice after the appellant raised Lucia v.
Securities and Exchange Commission, 138 S. Ct. 2044 (2018), and the judge’s
authority to adjudicate the matter. 0576 IAF, Tab 4, Initial Decision. The
appellant challenged this dismissal without prejudice before the U.S. Court of
Appeals for the Federal Circuit, but the court dismissed for lack of jurisdiction.
Jolley v. Merit Systems Protection Board, No. 2019-1022 (Fed. Cir. Dec. 28,
2018). In the meantime, his appeal was redocketed. Jolley v. Department of
Housing and Urban Development, MSPB Docket No. AT-4324-18-0576-I-2,
Refiled Appeal File, Tabs 1-2. Around that same time, the appellant submitted a
filing that was construed as a second USERRA appeal and docketed accordingly.
Jolley v. Department of Housing and Urban Development, MSPB Docket No.
AT-4324-19-0041-I-1, Initial Appeal File (0041 IAF), Tab 1.
¶3 The administrative judge developed the records, joined the appeals, and
issued a single decision. E.g., 0041 IAF, Tab 58, Initial Decision (0041 ID). The
December 21, 2022 initial decision considered three alleged nonselections but
found that the appellant did not meet his burden of proving that the agency
violated USERRA regarding any. Id. at 4-7. It explained that the deadline for
filing a petition for review was January 25, 2023. Id. at 8.
¶4 The appellant has filed a petition for review. Jolley v. Department of
Housing and Urban Development, MSPB Docket No. AT-4324-18-0576-I-2,
Petition for Review File, Tab 1; Jolley v. Department of Housing and Urban
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Development, MSPB Docket No. AT-4324-19-0041-I-1, Petition for Review
(0041 PFR) File, Tab 1. However, he did not do so until May 9, 2023, more than
100 days after the deadline for doing so. 0041 PFR File, Tab 1. The appellant’s
petition summarily states that the Board has violated the law, and it does not
address the petition’s timeliness. Id. at 2.
¶5 The Clerk of the Board notified the appellant that his petition appeared
untimely and provided instructions on how to file a motion regarding either its
timeliness or good cause for its untimeliness. E.g., 0041 PFR File, Tab 2.
The appellant did not respond to the Clerk’s notice. The agency has not
responded to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 A petition for review must be filed within 35 days after the date of the
issuance of the initial decision, or, if the petitioner shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date the petitioner 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). 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. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.113(d), 1201.114(g).
¶7 The party who submits an untimely petition for review has the burden of
establishing good cause 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; Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
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 which
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similarly shows a causal relationship to his inability to timely file his petition.
Palermo, 120 M.S.P.R. 694, ¶ 4; 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).
¶8 In circumstances such as this, where an appellant does not respond to the
Clerk’s timeliness notice and has not otherwise explained the untimeliness of
their petition for review, the Board has declined to find good cause for even a
1-day filing delay. Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 6
(2007). The Board has explained that, even in the case of a pro se appellant, the
failure to respond to the Clerk’s notice does not reflect due diligence. Id.¶9 Here, where the appellant did not file his petition until more than 100 days
after the deadline for doing so, without explanation, we discern no reason to
conclude otherwise. The initial decision for his joined appeals informed the
appellant that the deadline for filing a petition for review was January 25, 2023.
0041 ID at 8. The appellant filed his petition on May 9, 2023. 0041 PFR File,
Tab 1. The petition is silent about this untimeliness, and the appellant did not
respond to the Clerk’s notice about the same.
¶10 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 nonselections and alleged USERRA violations.
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
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.
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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.
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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
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 any court of appeals of
competent jurisdiction. 3 The court of appeals must receive your petition for
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
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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.
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.
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.