Sabrina A Tippins v. Department of the Army ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SABRINA A. TIPPINS, DOCKET NUMBER
Appellant, DC-3443-20-0685-I-1
v.
DEPARTMENT OF THE ARMY, DATE: October 11, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sabrina A. Tippins , Moyock, North Carolina, pro se.
Aramide Pasay , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
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 her nonpromotion appeal for lack of jurisdiction. For the reasons set
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
The appellant, a GS-13 Workforce Coordinator, applied for a GS-14 Chief
of Mission Support Division position but was not selected for the promotion.
Initial Appeal File (IAF), Tab 1 at 1, 5. The appellant filed the instant appeal,
challenging the nonselection. Id. The administrative judge issued an order to
show cause on the issue of jurisdiction. IAF, Tab 3. After the parties responded,
she issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tabs 4-5, 8, Tab 10, Initial Decision (ID) at 1, 7. The decision notified the
appellant that it would become final on November 5, 2020, unless a petition for
review was filed by that date. ID at 7.
On November 9, 2020, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1 at 3. The Acting Clerk of the
Board subsequently notified the appellant that her petition for review appeared to
be untimely and provided her with an opportunity to submit a motion requesting
either to accept the filing as timely or waive the time limit for good cause.
PFR File, Tab 2 at 1-2. The appellant has not responded to the Acting Clerk’s
notification. The agency has responded to the petition for review. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is untimely filed.
The initial decision indicated that the appellant’s petition for review had to
be filed by November 5, 2020. ID at 7. However, the appellant did not file her
petition for review until November 9, 2020, four days after the deadline. PFR
File, Tab 1. 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
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issuance, within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). Although the appellant has not submitted a motion in support of
her untimely petition for review, in her petition for review she asserted that she
does not know when she received the initial decision. PFR File, Tab 1 at 3.
The appellant was registered as an e-filer at the time and, therefore, is deemed to
have received the administrative judge’s orders on the date of electronic
submission, pursuant to 5 C.F.R. § 1201.14(m)(2) (2020). Rivera v. Social
Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); IAF, Tab 1 at 2, Tab 11.
Further, as an e-filer, the appellant was responsible for monitoring her case
activity at e-Appeal to ensure that she received all case-related documents.
5 C.F.R. § 1201.14(j)(3) (2020).
We deem the appellant to have received the initial decision on
October 1, 2020, the date it was electronically issued. ID at 1; IAF, Tab 11. Her
deadline for filing a petition for review was 35 days later, on November 5, 2020.
PFR File, Tab 2 at 1. Therefore, the appellant’s November 9, 2020 petition for
review was filed 4 days untimely.
The appellant has failed to demonstrate good cause for her untimely filed petition
for review.
In her petition for review, the appellant stated as good cause for her
untimely filing that her equal employment opportunity (EEO) “investigation just
arrived and shows substantial discrimination as evidence.” PFR File, Tab 1 at 3.
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(f)-(g). To establish good cause for an
untimely filing, a party must show that she 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). The Board will consider the length of
the delay, the reasonableness of her excuse and her showing of due diligence,
whether she is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
4
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to her inability to timely file her 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). The discovery of new evidence may
constitute good cause for waiver of the Board’s filing deadline if the evidence
was not readily available before the close of the record below and is of sufficient
weight to warrant an outcome different from that of the initial decision.
Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575 (1994),
aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table).
Applying the Moorman factors, we find that the appellant has failed to
establish good cause for her untimely petition for review. Although the appellant
is proceeding pro se and her delay in filing was only 4 days, she has not provided
any explanation as to why she was unable to timely file her petition for review or
request an extension. See Rivera, 111 M.S.P.R. 581, ¶¶ 6-7 (declining to excuse a
pro se appellant’s 5-day delay in filing a petition for review allegedly caused by
the loss of electricity during a portion of the filing period). To the extent the
appellant argues that her recent receipt of an EEO report of investigation shows
good cause, we are not persuaded. PFR File, Tab 1 at 3. The appellant did not
submit the report of investigation, provide the date she received it, or otherwise
establish that the information in the report was unavailable when the record
closed, despite her due diligence. Id. Therefore, we find that the appellant has
not presented new evidence on which to grant review of the initial decision.
Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶¶ 3, 5 (2013) (finding the Board
would not consider the appellant’s EEO report of investigation because the
appellant failed to show that the information in the documents was unavailable
before the close of record).
The appellant may be attempting to assert that she should be subject to the
deadlines applicable to filing mixed-case appeals, which are in some instances
triggered by the agency’s processing of the employee’s EEO complaint.
5
See 5 C.F.R. § 1201.154 (discussing these deadlines). This argument is
unavailing. The appellant’s untimely filing here was a petition for review, not an
initial appeal subject to the deadlines in 5 C.F.R. § 1201.154. In any event, the
appellant’s alleged nonpromotion cannot serve as the basis for a mixed-case
appeal because a nonpromotion is not an otherwise appealable action.
See Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶¶ 4, 7
(2012) (explaining that the Board did not have jurisdiction over an appeal as a
mixed case because a nonselection is not an otherwise appealable action).
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 nonpromotion 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
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
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.
6
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.
(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
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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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).
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
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.
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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.