Opinion

Matthew Jernigan v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Sep 9, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MATTHEW TODD JERNIGAN, DOCKET NUMBER

Appellant, AT-3443-22-0077-I-1

DEPARTMENT OF HOMELAND DATE: September 9, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Matthew Todd Jernigan , Biloxi, Mississippi, pro se.

Lorna Jerome , 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 appeal for lack of jurisdiction. 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The appellant filed a Board appeal wherein he referenced a number of

different issues. Initial Appeal File (IAF), Tab 1 at 4-5. The administrative

judge issued an order regarding jurisdiction. IAF, Tab 3 at 1-3.

On February 28, 2022, after the appellant and the agency responded to the

jurisdictional order, IAF, Tab 5-10, the administrative judge issued an initial

decision dismissing the appeal for lack of jurisdiction, IAF, Tab 11, Initial

Decision (ID) at 1, 4. In so doing, she acknowledged that, in one of his filings,

the appellant had asserted that he had been discriminated against based on his

uniformed service. ID at 3 n.2. She explained that, because it appeared that the

appellant had attempted to raise a claim under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA), a separate Board

appeal had been docketed for this apparent claim, i.e., Jernigan v. Department of

Homeland Security, MSPB Docket No. AT-4324-22-0144-I-1. 2 Id. The

administrative judge indicated that her initial decision in the instant matter would

become final on April 4, 2022, unless a petition for review was filed by that date.

ID at 4.

On June 2, 2022, the appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1. In his petition, the appellant asserts that he received

the initial decision on March 1, 2022. Id. at 3. He references a chemical

poisoning that occurred in October 2020, as well as an “[e]mergency medical

condition” related to his left arm that occurred on December 31, 2020. Id. at 4.

He avers that he began experiencing medical symptoms related to one or both of

these conditions on February 18, 2022, and that he underwent surgery/treatment

for the same on March 20-25, 2022. Id. The appellant also reasserts that he had

difficulty contacting agency counsel. Id. With his petition, the appellant

On March 1, 2022, the administrative judge dismissed the appellant’s USERRA appeal

for lack of jurisdiction. Jernigan v. Department of Homeland Security, MSPB Docket

No. AT-4324-22-0144-I-1, Initial Appeal File, Tab 5, Initial Decision at 1, 3. The

appellant did not file a petition for review of this decision.

provides documentation, i.e., medical bills, which indicate that he was

hospitalized from March 20-25, 2022. Id. at 6-7. The agency has not filed a

response to the appellant’s petition for review.

On June 3, 2022, the Office of the Clerk of the Board notified the appellant

that his petition for review was untimely filed and explained that he must file, on

or before June 18, 2022, a motion asking the Board to accept the petition for

review as timely and/or to waive the time limit for good cause. PFR File, Tab 2

at 1-2. In this notification, the Office of the Clerk of the Board also explained

that, to the extent the appellant was alleging that his health affected his ability to

meet filing deadlines, he must do the following: (1) identify the time period

during which he suffered from the illness; (2) submit medical or other evidence

showing that he suffered from the alleged illness during that time period; and

(3) explain how the illness prevented him from timely filing his petition for

review. Id. at 7 n.1.

Thereafter, on July 15, 2022, the appellant submitted a motion requesting

that the Board accept his petition for review and waive the time limit. PFR File,

Tab 4. In this pleading, the appellant states only as follows: “PLAINTIFF

REQUESTS MOTION TO ACCEPT FILING FOR REVIEW, AND WAIVER OF

TIME LIMIT. PLAINTIFF SUBMITTED MEDICAL CONDITIONS AND

STATEMENT.” Id. at 3 (punctuation in original).

ANALYSIS

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 initial

decision was issued on February 28, 2022, and electronically sent to the appellant

the same day. IAF, Tab 12 at 1. Although the appellant alleges that he did not

receive the decision until March 1, 2022, PFR File, Tab 1 at 3, documents served

on registered e-filers are deemed received on the date of electronic submission;

accordingly, the appellant, a registered e-filer during the adjudication of the

initial appeal, is deemed to have received the initial decision on February 28,

2022, and his petition for review is untimely filed by approximately 2 months,

PFR File, Tab 1; see 5 C.F.R. § 1201.14(m)(2) (2022).

The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).

To establish good cause for an untimely filing, 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).

In determining whether there is good cause, the Board considers the length of the

delay, the reasonableness of the excuse and showing of due diligence, whether the

appellant 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 that similarly shows

a causal relationship to his inability to file a timely petition. See Wyeroski v.

Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950

(Fed. Cir. 2007).

We find that the appellant has not demonstrated good cause for the

untimely filing of his petition for review. Although the appellant is pro se, his 2-

month delay in filing is significant. See Floyd v. Office of Personnel

Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding the pro se appellant’s 1-month

delay not minimal). To the extent the appellant argues that his health conditions

precluded him from timely filing his petition or requesting an extension of time

within which to do so, we find his argument unavailing. 3 Indeed, apart from

As discussed above, the Office of the Clerk of the Board specifically explained to the

appellant that, to the extent he was alleging that his health affected his ability to meet

filing deadlines, he must provide the Board with specific information. PFR File, Tab 2

at 7 n.1. Even considering his untimely filed motion in response to the notice from the

Office of the Clerk of the Board, the appellant did not provide such information;

instead, he appears to refer the Board to his petition for review. PFR File, Tab 4 at 3.

March 20-25, 2022, the appellant has failed to show that he was hospitalized,

under treatment, or otherwise incapacitated for the period of time between

February 28, 2022, the date he received the initial decision, and April 4, 2022, the

deadline for timely filing his petition for review. See Cornelius v. National

Credit Union Administration, 87 M.S.P.R. 497, ¶ 8 (2001) (finding that the

appellant failed to establish that his untimely filing was the result of a medical

condition when, although the appellant provided evidence regarding past medical

problems, he failed to demonstrate that he was hospitalized, under treatment, or

otherwise incapacitated during the relevant timeframe). Moreover, he has

provided no evidence regarding the 2-month period of delay between April 4,

2022, and June 2, 2022. See id. Accordingly, despite his pro se status, we find

that the appellant has failed to show good cause for his delay and we decline to

excuse the same. See Lockhart v. Office of Personnel Management, 94 M.S.P.R.

396, ¶¶ 7-8 (2003) (declining to excuse a 5 -day delay in filing a petition for

review when the pro se appellant failed to show good cause for the same). 4

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 this matter.

Thus, we find that he has failed to demonstrate good cause for his untimely filing on the

basis of illness, or mental or physical capacity. See Lacy v. Department of the Navy,

78 M.S.P.R. 434, 437 (1998); see also Stribling v. Department of Education,

107 M.S.P.R. 166, ¶ 8 (2007).

To the extent the appellant challenges the administrative judge’s jurisdictional

conclusion, PFR File, Tab 1 at 4-5, a different outcome is not warranted, see Guevara

v. Department of the Navy, 112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant

failed to establish good cause for his untimely filed petition for review when he merely

argued the merits of his appeal).

NOTICE OF APPEAL RIGHTS 5

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. 6 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