The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NOEL A. MARQUIS, DOCKET NUMBER
Appellant, AT-0752-20-0220-I-1
v.
SOCIAL SECURITY DATE: July 24, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Noel A. Marquis , Groveland, Florida, pro se.
Jessica V. Johnson , Esquire, and Owen Keegan , Esquire, Atlanta, Georgia,
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 removal appeal for failure to prosecute. For the reasons set forth
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The appellant filed this appeal of the agency’s removal action with the
Board. Initial Appeal File (IAF), Tab 1 at 1-5. As discussed in the initial
decision, the appellant failed to appear for an initial status conference and to
respond to the administrative judge’s order regarding the affirmative defense of
disability discrimination. IAF, Tab 11, Initial Decision (ID) at 2. Based on the
written record, the administrative judge issued an initial decision dismissing the
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 April 14, 2020, unless a petition for review
was filed by that date. ID at 3. The administrative judge further informed the
appellant that, if he proved that 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 at 4. The record reflects that the appellant received the
initial decision on March 10, 2020, the date of issuance. 2 ID at 1; IAF, Tab 12;
2
The certificate of service reflects that, on March 10, 2020, the initial decision was
served electronically by email on the appellant, who had registered as an e-filer.
IAF, Tab 1 at 2, Tab 12; see 5 C.F.R. § 1201.14(j)(1) (2020) (providing for the
3
see 5 C.F.R. § 1201.14(m)(2) (2020) (providing that Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission). The appellant does not argue otherwise. PFR File, Tab 1 at 3.
Thus, the deadline for filing a petition for review was April 14, 2020, 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 April 15, 2020, one day past the
filing deadline. 3 PFR File, Tab 1. In relevant part, the appellant’s brief petition
for review states, “I have already filed one plea to re-evaluate the case since the
judge did not complete his due diligence. The judge stated I did not meet or
adhere to the timeline and information requested which is not the case.” Id. at 3.
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 informed the appellant
that such a motion must include a signed statement (made under penalty of
perjury) or an affidavit, and that the motion must be sent by May 1, 2020. Id.
at 2. The appellant has not filed any argument or evidence in response to the
Office of 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
electronic service of Board documents on e-filers).
3
The pleading that the Office of the Clerk of the Board docketed as the appellant’s
petition for review reflects that the date of electronic submission was April 15, 2020.
PFR File, Tab 1, Tab 2 at 1 n.*; 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) (2020) (same).
4
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).
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 arguments
challenging the dismissal of his appeal for failure to prosecute are not relevant to
the timeliness of his petition for review. PFR File, Tab 1 at 3; see Marasco v.
U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995) (finding that the appellant’s
arguments on the merits were not relevant to the untimeliness of his petition for
review). Further, despite receiving notice of the filing deadline in the initial
decision and an opportunity to respond on the timeliness issue on review, the
appellant has failed to address the timeliness of his petition for review. PFR File,
Tab 2 at 1-2; ID at 3-4; see Cabarloc v. Department of Veterans Affairs,
112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding that the pro se appellant failed to
demonstrate diligence or ordinary prudence that would excuse his 10-day filing
delay when he failed to respond to the Clerk’s notice regarding timeliness). In
addition, the appellant has not presented any evidence of the existence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from filing a timely petition for review. Therefore, under the
5
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 removal appeal.
NOTICE OF APPEAL RIGHTS 4
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
4
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
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
7
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
8
(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. 5 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.
5
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.