Opinion

Yvon Francois v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jul 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

YVON FRANCOIS, DOCKET NUMBER

Appellant, DC-0752-20-0766-I-1

DEPARTMENT OF HOMELAND DATE: July 23, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Yvon Francois , Miami Beach, Florida, pro se.

Blake Lynne Bruce and Matthew L. Peterson , Washington, D.C., for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal as untimely filed. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to find that the appeal was untimely filed under 5 C.F.R.

§ 1201.154(b), we AFFIRM the initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

When an appellant raises an issue of prohibited discrimination in

connection with a matter otherwise appealable to the Board, he may either file a

timely complaint of discrimination with the agency or file an appeal with the

Board no later than 30 days after the effective date, if any, of the action being

appealed, or 30 days after the date of the appellant’s receipt of the agency’s

decision on the appealable action, whichever is later. 5 C.F.R. § 1201.154(a).

If an appellant has filed a timely formal complaint of discrimination with the

employing agency, and the agency resolves the matter or issues a final decision

on the formal complaint, a Board appeal must be filed within 30 days after the

appellant receives the agency resolution or final decision on the discrimination

issue. 5 C.F.R. § 1201.154(b). In her initial decision, the administrative judge

found that the appellant failed to timely file a discrimination complaint with the

agency, and she measured the timeliness of his appeal under 5 C.F.R.

§ 1201.154(a), based on the time that had elapsed since his removal. We find,

however, that she should have instead applied the timeliness standard under

5 C.F.R. § 1201.154(b).

It is undisputed that the appellant initially elected to pursue a

discrimination complaint with the agency. We note that an employing agency

may dismiss a discrimination complaint that fails to comply with the applicable

regulatory time limits. 29 C.F.R. § 1614.107(a)(2). An employee dissatisfied

with such a dismissal may appeal it to the Equal Employment Opportunity

Commission (EEOC). 29 C.F.R. §1614.401(a). The Board defers to a finding

that a complaint was untimely filed when that decision was not appealed to the

EEOC, and also defers to a final EEOC decision finding a complaint untimely

filed. Moore v. U.S. Postal Service, 91 M.S.P.R. 277, ¶ 6 (2002). In this case,

however, there is no indication that the agency dismissed the appellant’s

complaint of discrimination as untimely filed. Thus, there is no basis for finding

that the time limit set forth at 5 C.F.R. § 1201.154(b) does not apply because of

an untimely filed discrimination complaint. See McCoy v. U.S. Postal Service,

108 M.S.P.R. 160, ¶11 (2008).

Nonetheless, we find that the appellant’s Board appeal was untimely filed

under 5 C.F.R. § 1201.154(b). The agency issued its final decision resolving the

appellant’s discrimination claim on May 27, 2020. Initial Appeal File, Tab 5

at 20-30. As required under 29 C.F.R. 1614.302(d)(3), the agency advised the

appellant of the right to appeal the matter to the Board within 30 days of his

receipt of the decision. Id. at 29. The appellant has not alleged any unusual

delay in his receipt of the final agency decision, yet he did not file his Board

appeal until July 24, 2020, fifty-eight days after the final agency decision was

issued. Accordingly, we conclude that his appeal was untimely filed by more

than 3 weeks.

To establish good cause for the untimely filing of an appeal, a party 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). Here, the appellant failed to

respond to the administrative judge’s order to submit evidence and argument on

the timeliness issue, and he has still offered no explanation as to why he did not

timely file his Board appeal after receiving the final agency decision on his

discrimination claim. Silence does not constitute a showing of good cause.

Lewis v. Department of Housing and Urban Development , 96 M.S.P.R. 479, ¶ 6

(2004). Moreover, while we are mindful that the appellant is proceeding pro se, a

filing delay of more than 3 weeks is not minimal, and thus the length of the delay

does not provide a basis for waiving the filing deadline. See Rodriguez v.

Department of the Navy, 71 M.S.P.R. 396, 398 (1996) (dismissing a petition for

review untimely filed by 18 days, notwithstanding the appellant’s pro se status).

Accordingly, we affirm the administrative judge’s ultimate conclusion that the

appeal was untimely filed without a showing of good cause for the filing delay.

NOTICE OF APPEAL RIGHTS 2

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

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.

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

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. 3 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

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