Opinion

Clinton Jenkins v. Smithsonian Institution

Court: Merit Systems Protection Board
Filed: Aug 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLINTON JENKINS, DOCKET NUMBER

Appellant, DC-0752-20-0794-I-1

SMITHSONIAN INSTITUTION, DATE: August 13, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clinton Jenkins , Largo, Maryland, pro se.

David Larson , Esquire, and Katherine Bartell , Esquire, 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 the 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant constructively received the notice of

proposed removal on April 15, 2020, we AFFIRM the initial decision.

BACKGROUND

On April 10, 2020, the agency mailed to the appellant’s address of record

its decision removing him from Federal service, effective April 25, 2020. Initial

Appeal File (IAF), Tab 7 at 24-29. On August 10, 2020, the appellant filed an

appeal challenging his removal, 107 days after the effective date. IAF, Tab 1. In

response to the timeliness order issued by the administrative judge, the appellant

stated that he did not receive the removal decision until July 2020. IAF, Tab 6.

The administrative judge dismissed the appeal as untimely, finding that the

appellant failed to keep the agency apprised of his current mailing address as

required by 5 C.F.R. § 1201.22(b)(3) and finding that the appellant constructively

received the decision after the agency placed it in the mail to his address of

record. IAF, Tab 9, Initial Decision (ID) at 4. The appellant has filed a petition

for review, arguing that the agency should have used other means to notify him of

the removal decision. Petition for Review (PFR) File, Tab 1.

DISCUSSION OF ARGUMENTS ON REVIEW

The appeal was untimely filed.

The appellant bears the burden to prove by preponderant evidence that his

appeal was timely filed. 5 C.F.R. § 1201.56(b)(2)(i)(B). A removal appeal must

be filed no later than 30 days after the effective date of the action being appealed,

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

whichever is later. 5 C.F.R. § 1201.22(b)(1). Regarding the receipt of agency

documents, 5 C.F.R. § 1201.22(b)(3) provides that documents may be deemed

constructively received under certain circumstances:

An appellant is responsible for keeping the agency informed of his or

her current home address for purposes of receiving the agency’s

decision, and correspondence which is properly addressed and sent to

the appellant’s address via postal or commercial delivery is presumed

to have been duly delivered to the addressee. While such a

presumption may be overcome under the circumstances of a

particular case, the appellant may not avoid service of a properly

addressed and mailed decision by intentional or negligent conduct

which frustrates actual service.

Here, it is undisputed that the agency mailed the decision to the appellant’s

address of record on April 10, 2020. IAF, Tab 7 at 24-29. We find that the

appellant constructively received the decision 5 days later, on April 15, 2020.

See Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 7 (2007) (recognizing

a presumption that documents placed in the mail are received in 5 days). The

appellant’s assertion that he did not receive the decision until July 2020, when it

was resent to his new address, is insufficient to overcome the presumption of

constructive receipt because he did not keep the agency apprised of his current

address and he may not avoid service of a properly addressed and mailed decision

by negligent conduct. IAF, Tab 6 at 4; see 5 C.F.R. § 1201.22(b)(3).

The effective date of the removal was April 25, 2020, ten days after

constructive receipt. IAF, Tab 1 at 4. Therefore, pursuant to 5 C.F.R.

§ 1201.22(b)(1), the appellant’s appeal was due by May 25, 2020, i.e., 30 days

after the effective date. The appellant’s August 10, 2020 appeal was therefore

untimely by 77 days.

The appellant has not shown good cause for the delay in filing his appeal.

The Board may waive its regulatory filing time limit for good cause shown.

5 C.F.R. § 1201.22(c). 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).

Though he is proceeding pro se, the appellant’s 77-day delay in filing is not

minimal. See Rosati v. U.S. Postal Service, 91 M.S.P.R. 122, ¶ 7 (finding a

nearly 2-month delay was not minimal), aff’d, 53 F. App’x 95 (Fed. Cir. 2002).

The appellant’s assertion that he did not receive the decision until July 2020 does

not amount to good cause for the reasons stated above. See Little v. U.S. Postal

Service, 124 M.S.P.R. 183, ¶¶ 8-10 (2017) (applying 5 C.F.R. § 1201.22(b)(3) to

find constructive receipt and finding an appellant’s delay in checking his post

office box did not constitute good cause for untimely filing by 1 day). The

appellant also asserts that the agency did not attempt to contact him by phone or

email to relay its removal decision. PFR File, Tab 1 at 4-5. The administrative

judge correctly found that the agency was under no obligation to do so. ID at 4.

Accordingly, we affirm the administrative judge’s decision to dismiss the appeal

as untimely filed.

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

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:

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.

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

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