# Ronnell L Pulley v. Department of Justice

> Merit Systems Protection Board · July 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10477079

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** July 19, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

RONNELL LAMONT PULLEY, DOCKET NUMBER
Appellant, PH-1221-19-0009-W-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).
2
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).
3

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).
3
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).
4

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

4
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).
5

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
5
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).
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.
6

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
7

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
8

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

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.
9

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.
10

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10477079. Public record. Not legal advice.