Opinion

Ronnell L Pulley v. Department of Justice

Court: Merit Systems Protection Board
Filed: Jul 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONNELL LAMONT PULLEY, DOCKET NUMBER

Appellant, PH-1221-19-0009-W-1

DEPARTMENT OF JUSTICE, DATE: July 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronnell Lamont Pulley , Millville, New Jersey, pro se.

Ted Booth , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner 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 his individual right of action (IRA) appeal for failure to prosecute. 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

BACKGROUND

The appellant, through his attorney representative, filed this IRA appeal

with the Board. Initial Appeal File (IAF), Tab 2 at 1-6. As discussed in the

initial decision, the appellant appeared to abandon his case after his attorney

withdrew from representing him and after he requested a hearing. IAF, Tab 39,

Initial Decision (ID) at 1-2. Without holding the requested hearing, the

administrative judge issued an initial decision dismissing the IRA appeal for

failure to prosecute. ID at 1, 3.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 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.

Generally, a petition for review must be filed within 35 days after the date

of 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 would

become the Board’s final decision on December 19, 2019, unless a petition for

review was filed by that date. ID at 3. The administrative judge further informed

the appellant 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. The record reflects that the appellant received the initial decision

on November 14, 2019, the date of issuance. 2 ID at 1; IAF, Tab 40; see 5 C.F.R.

§ 1201.14(m)(2) (2019) (providing that Board documents served electronically on

registered e-filers are deemed received on the date of electronic submission).

The certificate of service reflects that, on November 14, 2019, the initial decision was

served electronically by email on the appellant, who had registered as an e-filer.

IAF, Tab 1 at 2, Tab 2 at 2, Tab 40; see 5 C.F.R. § 1201.14(j)(1) (2019) (providing for

the electronic service of Board documents on e-filers).

The appellant does not argue otherwise. PFR File, Tab 1 at 3, 5. Thus, the

deadline for filing a petition for review was December 19, 2019, the 35th day

after the date of issuance of the initial decision. See 5 C.F.R. § 1201.114(e).

The appellant filed a petition for review on December 20, 2019, one day

past the filing deadline. 3 PFR File, Tab 1. In an acknowledgment letter, the

Office of the Clerk of the Board notified the appellant that his petition for review

was untimely filed and that he could file a motion with the Board to accept his

filing as timely and/or to waive the time limit for good cause. PFR File,

Tab 2 at 1-2. The letter further stated that such a motion must be sent by

January 7, 2020. Id. at 2. The appellant has not filed any argument or evidence

in response to the Clerk of the Board’s notice regarding the timeliness of his

petition for review.

The Board may waive the time limit for filing a petition for review upon a

showing of good cause for the untimely filing. 5 C.F.R. §§ 1201.12, 1201.114(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).

The appellant simply claims on review, “The filing was made on the 18th.” PFR File,

Tab 1 at 3. We find that this conclusory statement, without more, is insufficient to

rebut the fact that his petition for review shows that the date of electronic submission

was December 20, 2019. PFR File, Tab 1; see 5 C.F.R. §§ 1201.4(l) (providing that the

date of filing by e-filing is the date of electronic submission), 1201.14(m)(1) (2019)

(same).

In his petition for review, the appellant raises the following arguments:

it has been difficult to attend to this case due to personal circumstances such as

martial separation, homelessness, unemployment, a pending decision on his claim

for Social Security Disability Insurance benefits, and having to support his family

of three young children and a wife; his attorney withdrew from representation

primarily due to financial reasons but he continues to seek representation; he asks

for another opportunity to be compensated for the mental and other suffering he

endured as a result of his wrongful termination and unfair treatment by the

agency; his reputation has been destroyed and he has lost 15 years of good service

as a reservist in the Air National Guard; and granting a petition for review would

express the Board’s support for military families like his and would promote

justice and freedom. 4 PFR File, Tab 1 at 5-6.

Although the appellant’s pro se status and the minimal length of his 1-day

filing delay weigh in favor of finding good cause, we find that they are

outweighed by the remaining Moorman factors. See, e.g., Ellison v. U.S. Postal

Service, 45 M.S.P.R. 244, 245 & n.4, 246 (1990) (finding no good cause for the

pro se appellant’s 2-day delay in filing a corrected petition for review when,

among other things, he was unable to find a job, he was unable to find counsel,

and there was a pending foreclosure on his home). The appellant’s claims

regarding personal and financial difficulties and his inability to retain counsel do

not establish good cause. PFR File, Tab 1 at 5; see Tamayo v. Office of Personnel

Management, 88 M.S.P.R. 685, ¶ 7 (2001) (finding that the inability to secure a

representative and financial difficulty do not establish good cause); Crisp v.

Department of Veterans Affairs, 73 M.S.P.R. 231, 234 (1997) (finding no good

It is unclear whether some of the appellant’s arguments on review address his apparent

failure to prosecute the initial appeal or the untimeliness of his petition for review.

PFR File, Tab 1 at 5. However, given his pro se status, we will liberally construe such

arguments as addressing the untimeliness of his petition for review. See, e.g., Melnick

v. Department of Housing and Urban Development, 42 M.S.P.R. 93, 97-98 (1989)

(observing that parties without legal representation are not required to plead issues with

precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table).

cause when the appellant stated that he was going through divorce proceedings,

was involved in a lawsuit, and was seeking employment to avoid incarceration for

apparently failing to pay child support). Although the appellant generally claims

that he has been diagnosed with mental health conditions, he has not alleged that

they hindered his ability to make a timely filing. 5 PFR File, Tab 1 at 5.

Further, the appellant’s arguments on the merits of his termination are not

relevant to the untimeliness of his petition for review. Id. at 5-6; see Marasco v.

U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995). In addition, the appellant has

not presented any evidence of circumstances beyond his control or of unavoidable

casualty or misfortune that prevented him from timely filing a petition for review.

Therefore, under the particular circumstances of the case, we find that the

appellant has failed to establish good cause for his untimely filing.

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 failure to prosecute the IRA appeal.

NOTICE OF APPEAL RIGHTS 6

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

The appellant received explicit information regarding the legal standard for

establishing good cause based on an illness. PFR File, Tab 1 at 3, Tab 2 at 7 n.1;

see Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437-38 (1998).

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.

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.

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

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. 7 The court of appeals must receive your petition for

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.

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