Tyler Wentler v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYLER L. WENTLER, DOCKET NUMBER
Appellant, CH-0752-17-0046-R-1
v.
DEPARTMENT OF THE ARMY, DATE: July 25, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stephen T. Fieweger, Esquire, Davenport, Iowa, for the appellant.
Emily L. Macey, Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 On June 29, 2023, the Board issued a Final Order in this appeal dismissing
the petition for review as untimely. However, due to an administrative error in
entering the appellant’s address into the Board’s case management system, the
Board served the Final Order by certified mail on an incorrect address for the
appellant. The Final Order addressed to the appellant was returned to the Board
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
as undeliverable on July 17, 2023. We therefore REOPEN this case pursuant to
5 C.F.R. § 1201.118 to further address the timeliness of the petition for review
and serve the decision on the appellant at his proper address.
¶2 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension based on the suspension of his access to
classified materials. 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). However, we VACATE several of the administrative judge’s
findings regarding the agency’s suspension of the appellant’s access to classified
materials, MODIFY the initial decision to find that the Board lacks jurisdiction
over such action, and AFFIRM the initial decision in all other respec ts. Except as
expressly indicated in this Final Order, the initial decision of the administrative
judge is the Board’s final decision.
BACKGROUND
¶3 As properly described in the initial decision, the appellant holds a Contract
Specialist position with the Army Contracting Command in Rock Island, Illinois.
Initial Appeal File (IAF), Tab 20, Initial Decision (ID) at 1. He filed a Board
appeal of the agency’s suspension of his access to classified materials, effective
October 16, 2015, and the agency’s decision to indefinitely suspend him without
pay pending the final adjudication of his eligibility for a security clearance,
effective December 12, 2015. Id. Based on the written record, the administrative
judge issued an initial decision affirming the agency’s actions. ID at 1-2, 11.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response.
3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to show good cause for the 1 -day delay in filing his
petition for review.
¶5 Generally, 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 issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
administrative judge informed the appellant that the initial decision dated
February 16, 2017, would become the Board’s final decision on March 23, 2017,
unless either party filed a petition for review by that date. ID at 11. She further
informed him that, if 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. In addition, she notified him that the 30-day period would begin
to run upon either his or his representative’s receipt of the initial decision,
whichever occurred first. Id.¶6 The certificate of service reflects that, on February 16, 2017, the initial
decision was sent both by mail to the appellant’s address as recorded in the
Board’s case management system 2 and by email to his attorney, who had
registered as an e-filer. IAF, Tab 13 at 6, Tab 21; see 5 C.F.R. § 1201.14(e)(1)
(stating that a party or representative may not file an electronic pleading with the
Board unless he or she has registered as an e-filer); 5 C.F.R. § 1201.14(m)(2)
(explaining that Board documents served electronically on registered e -filers are
deemed received on the date of electronic submission). The appellant has not
argued that he or his attorney did not receive the initial decision. We further find
2
As noted above, supra ¶ 1, the street number of the appellant’s address was entered
incorrectly into the Board’s case management system at the time of docketing, and
therefore the initial decision was served by U.S. mail on an incorrect address. Compare
IAF, Tab 1 at 2, with IAF, Tab 21. However, there is no indication in the record that
the initial decision was returned as undeliverable.
4
that the deadline for filing the petition for review was March 23, 2017, as stated
in the initial decision. ID at 11; see 5 C.F.R. § 1201.114(e).
¶7 The appellant filed a petition for review on March 24, 2017, one day past
the filing deadline. 3 In an acknowledgment letter, the Clerk of the Board
informed the appellant that his petition for review was untimely f iled and that he
could file a motion with the Board to accept his filing as timely or to waive the
time limit for good cause. PFR File, Tab 2. The letter also stated that the motion
must be sent by April 14, 2017. Id. at 2. The appellant has not filed any
argument or evidence concerning the timeliness of his petition for review.
¶8 The Board may waive the time limit for filing a petition for review upon a
showing of good cause for the filing delay. 5 C.F.R. § 1201.114(f)-(g). To
establish good cause, 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). 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 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).
3
Although the appellant’s attorney certified that he mail ed the petition for review on
March 23, 2017, the postmark date contained on the mailing was March 24, 2017. PFR
File, Tab 1 at 5-6. He mailed the petition to the Board’s Central Regional Office,
which then forwarded it to the Office of the Clerk of the Board. Id. at 1-2, 6. A
pleading submitted by mail generally is considered filed on the postmark date, even
when submitted to the wrong Board office. Branch v. Department of the Army,
110 M.S.P.R. 663, ¶¶ 6-7 (2009); 5 C.F.R. § 1201.4(l). Thus, we find that the filing
date of the appellant’s petition for review is the March 24, 2017 postmark date.
5
¶9 Here, although the brevity of the appellant’s 1-day filing delay weighs in
favor of finding good cause, we find that the minimal length of the delay is
outweighed by the remaining Moorman factors. See Skaggs v. Merit Systems
Protection Board, 364 F. App’x 623, 626-27 (Fed. Cir. 2010) (affirming the
Board’s decision finding that the appellant failed to show good cause for the
1-day delay in filing his initial appeal when his attorney was negligent) 4; see also
McBurnett v. Department of the Army, 37 M.S.P.R. 395, 396-97 (1988) (finding
that negligence on the part of the appellant’s attorney did not constitute good
cause for the 1-day delay in filing his initial appeal). The fact that the appellant
has been represented by an attorney throughout the appeal weighs against a
finding of good cause. See Marcantel v. Department of Energy, 121 M.S.P.R.
330, ¶ 11 (2014) (affirming the initial decision that dismissed the appellant’s
initial appeal as untimely filed without good cause shown). We find that the
appellant’s attorney, who filed the petition for review, was aware of the filing
deadline after receiving clear notice in the initial decision and was provided with
an opportunity to respond on the timeliness issue on review. PFR File, Tab 2; ID
at 11. We further find that 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. 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). Therefore,
under the particular circumstances of the case, we find that the appellant has
failed to establish good cause for his untimely filing.
4
The Board has held that it may rely on unpublished decisions of the U.S. Court of
Appeals for the Federal Circuit if, as here, it finds the court’s reasoning persuasive.
E.g., Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 21 (2008), aff’d,
324 F. App’x 883 (Fed. Cir. 2009).
6
The suspension of the appellant’s access to classified information is not an
adverse action appealable to the Board.
¶10 For the following reasons, we vacate several of the administrative judge’s
findings regarding the agency’s suspension of the appellant’s access to classified
materials, and we modify the initial decision to find that the Board lacks
jurisdiction over such action. 5 Specifically, we find that the administrative judge
erred in finding that the Board has jurisdiction to review whether the agency
committed harmful procedural error in effecting the suspension of the appellant’s
access to classified information. ID at 4. In so finding, the administrative judge
cited Rogers v. Department of Defense, 122 M.S.P.R. 671, ¶ 7 (2015), for the
proposition that the Board has the authority under 5 U.S.C. § 7701(c)(2)(A) to
review whether the agency committed a harmful procedural error in suspending
his access to classified information. ID at 4. However, as the administrative
judge properly found, the suspension of the appellant’s access to classified
materials, without a loss in pay, is not an appealable adve rse action. Id.; see
5 U.S.C. §§ 7501(2), 7512, 7513(d); Abbott v. U.S. Postal Service, 121 M.S.P.R.
294, ¶ 6 (2014) (defining a “suspension” as the temporary placement of an
employee in a nonpay, nonduty status). Thus, we find that the administrative
judge’s reliance on Rogers, 122 M.S.P.R. 671, ¶ 7, was misplaced.
¶11 Moreover, the Board lacks authority to review the merits of an agency’s
decision to suspend an appellant’s access to classified information. Rogers,
122 M.S.P.R. 671, ¶ 5; see Jones v. Department of the Navy, 48 M.S.P.R. 680,
690 (finding that the Board lacks authority to review the merits of an agency’s
suspension of an appellant’s security access in an indefinite suspension appeal),
5
Although we are dismissing the appellant’s petition for review as untimely, the issue
of the Board’s jurisdiction may be raised at any time during a proceeding. Morgan v.
Department of the Navy, 28 M.S.P.R. 477, 478 (1985); see 5 C.F.R. § 1201.115(e).
Further, the Board has inherent authority to determine whether a matter is within its
jurisdiction. Lloyd v. Small Business Administration, 96 M.S.P.R. 518, ¶ 16 (2004).
Therefore, we find that it is appropriate to raise the jurisdictional issue here.
7
aff’d as modified on recons., 51 M.S.P.R. 607 (1991), aff’d, 978 F.2d 1223(Fed. Cir. 1992). Further, it is well settled that “employees do ‘not have a liberty
or property interest in access to classified information, and the termination of that
access therefore [does] not implicate any due process concerns.’” Gargiulo v.
Department of Homeland Security, 727 F.3d 1181, 1184-85 (Fed. Cir. 2013)
(quoting Jones v. Department of the Navy, 978 F.2d 1223, 1225 (Fed. Cir. 1992)).
¶12 Therefore, we vacate the following findings regarding the agency’s
suspension of the appellant’s access to classified materials: the Board has
jurisdiction to review whether the agency committed a harmful procedural error;
the appellant failed to establish that the agency committed procedural error and
therefore failed to bear his burden of proving the affirmative defense of harmful
procedural error; the agency did not commit any due process violation; the agency
provided the appellant with all procedural protections; an d the action is affirmed.
ID at 2, 4, 6-7, 10-11. We clarify that we do not vacate any findings as they
relate to the appellant’s indefinite suspension from duty without pay. ID at 2,
10-11. Moreover, we do not vacate the administrative judge’s analysis of the
agency’s own regulations to the extent it is relevant to her finding that the
appellant failed to prove that the agency committed harmful procedural error in
effecting the indefinite suspension from duty without pay. ID at 5 -6, 9 n.6.
Finally, we modify the initial decision to find that the Board lacks jurisdiction
over the agency’s suspension of the appellant’s access to classified materials,
including any claims of harmful procedural error.
¶13 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 and the Board’s lack of jurisdiction over the suspension
of the appellant’s access to classified information as an independen tly appealable
action. Except as expressly modified by this Final Order, the initial decision
remains the final decision of the Board affirming the decision to indefinitely
8
suspend the appellant from duty without pay effective December 12, 2015.
5 C.F.R. § 1201.113.
NOTICE OF APPEAL RIGHTS 6
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
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 yo ur 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).
6
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.
9
If you submit a petition for review to the U.S. Court of Appe als 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,
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
10
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:
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
11
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. 7 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
7
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.
12
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.