Sean Mulligan v. Department of Homeland Security

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN MULLIGAN, DOCKET NUMBER
Appellant, SF-0752-16-0093-I-2
v.
DEPARTMENT OF HOMELAND DATE: July 19, 2023
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sean Mulligan, Federal Way, Washington, pro se.
Lawrence J. Lucarelli, Seattle, Washington, 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
affirmed his removal from Federal service. For the reasons set forth below, the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 On October 7, 2015, the appellant was removed for misconduct, and he filed
this appeal on November 3, 2015. Mulligan v. Department of Homeland Security,
MSPB Docket No. SF-0752-16-0093-I-1, Initial Appeal File, Tab 1. On April 4,
2017, the administrative judge issued an initial decision affirming the appellant’s
removal. Mulligan v. Department of Homeland Security, MSPB Docket No. SF-
0752-16-0093-I-2, Refiled Appeal File (RAF), Tab 59, Initial Decision (ID). The
initial decision stated that it would become final on May 9, 2017, unless a
petition for review was filed by that date. ID at 45.
¶3 On May 9, 2017, the Board received a request for an extension of time for
the appellant to file a petition for review. Mulligan v. Department of Homeland
Security, MSPB Docket No. SF-0752-16-0093-I-2, Petition for Review (PFR)
File, Tab 1. The request was filed by the appellant’s representative below, who
noted that her office no longer represented the appellant but was assisting him
with obtaining an extension. Id. at 3. The representative requested an additional
60 days, or until July 8, 2017, for the appellant to file his petition. Id.¶4 On May 10, 2017, the Office of the Clerk of the Board granted the request
in part and informed the appellant that he may file a petition for review on or
before June 8, 2017. PFR File, Tab 2 at 1. The Clerk’s Office informed the
appellant that if he did not file a petition by June 8, 2017, the initial decision
would remain the Board’s final decision. Id.¶5 On June 9, 2017, the appellant filed his petition for review. PFR File,
Tab 3. His petition contained argument and evidence regarding why the initial
decision should be reversed but no explanation for the apparent untimeliness of
his petition. Id.3
¶6 On June 15, 2017, the Clerk’s Office acknowledged June 9, 2017, as the
filing date of the appellant’s petition for review and informed the appellant that
his petition for review appeared untimely. PFR File, Tab 4 at 1. The Clerk’s
Office set a deadline of June 30, 2017, for him to file a motion to either accept
the filing as timely or waive the time limit for good cause. Id. at 1-2.
¶7 To date, the appellant has filed no such motion with the Board. The agency
has filed a response to the petition for review, arguing, among other things, that it
should be dismissed as untimely filed. PFR File, Tab 5 at 4 -5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 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. 5 C.F.R. § 1201.114(e). The
Board, however, may grant an extension of the time limit upon a showing of good
cause. 5 C.F.R. § 1201.114(f).
¶9 Here, the Clerk’s Office granted the appellant an extension of time beyond
the deadline set forth in section 1201.114(e), until June 8, 2017, to f ile his
petition for review. The appellant did not file his petition until June 9, 2017. It
was therefore 1 day late.
¶10 The Board will excuse the untimely filing of a petition for review only upon
a showing of good cause for the delay. Via v. Office of Personnel Management,
114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). 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 that similarly sh ows a causal
relationship to his inability to timely file his petition for review. Moorman v.
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Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table). Upon applying these factors, we find that the appellant has
not shown good cause for his filing delay.
¶11 In the request for an extension, the appellant’s former representative stated
that the appellant’s mother-in-law had been ill and passed away on April 30,
2017. PFR File, Tab 1 at 3. She asserted that, due to this hardship, as well as the
length of the appeal file and initial decision, he was requesting an extension of
time to file his petition through July 8, 2017. Id. As previously noted, the
Clerk’s Office granted the appellant an extension, until June 8, 2017, to file his
petition for review. PFR File, Tab 2; see King v. Maritime Administration,
18 M.S.P.R. 409, 410 n.2 (1983) (finding that an appellant failed to establish
good cause for an additional extension of time, beyond the 1-month extension
previously granted, to file her complete petition for review).
¶12 In his petition for review, the appellant failed to acknowledge that his
petition was untimely filed or otherwise offer any excuse for why it might have
been untimely filed. PFR File, Tab 3. Nor did he respond to the notice from the
Clerk’s Office providing him an additional opportunity to explain the
untimeliness of his petition. PFR File, Tab 4. These circumstances indicate that
he has failed to act with due diligence, even though the length of the delay was
relatively short and he is proceeding pro se. See Smith v. Department of the
Army, 105 M.S.P.R. 433, ¶ 6 (2007); Pangelinan v. Department of Homeland
Security, 104 M.S.P.R. 108, ¶ 9 (2006); see also Minor v. Department of the Air
Force, 109 M.S.P.R. 692, ¶¶ 5, 7 (2008) (finding that the appellant’s statement
that he was busy due to his wife’s and mother-in-law’s significant health
problems, without a specific showing of how such difficulties affected his ability
to timely file a petition for review or request an extension , failed to constitute
good cause for his untimely filing).
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¶13 Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown. 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 removal 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
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
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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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
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,
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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:
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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:
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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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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.