# Clinton Jenkins v. Smithsonian Institution

> Merit Systems Protection Board · August 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10506887

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 13, 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- **Precedential status:** Unpublished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

CLINTON JENKINS, DOCKET NUMBER
Appellant, DC-0752-20-0794-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.
3

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
4

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.
5

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:

2
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

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
7

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
8

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
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.

3
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

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/10506887. Public record. Not legal advice.