Opinion

Sabrina A Tippins v. Department of the Army

Court: Merit Systems Protection Board
Filed: Oct 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SABRINA A. TIPPINS, DOCKET NUMBER

Appellant, DC-3443-20-0685-I-1

DEPARTMENT OF THE ARMY, DATE: October 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sabrina A. Tippins , Moyock, North Carolina, pro se.

Aramide Pasay , Norfolk, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner recused himself and

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 her nonpromotion appeal for lack of jurisdiction. For the reasons set

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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).

BACKGROUND

The appellant, a GS-13 Workforce Coordinator, applied for a GS-14 Chief

of Mission Support Division position but was not selected for the promotion.

Initial Appeal File (IAF), Tab 1 at 1, 5. The appellant filed the instant appeal,

challenging the nonselection. Id. The administrative judge issued an order to

show cause on the issue of jurisdiction. IAF, Tab 3. After the parties responded,

she issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,

Tabs 4-5, 8, Tab 10, Initial Decision (ID) at 1, 7. The decision notified the

appellant that it would become final on November 5, 2020, unless a petition for

review was filed by that date. ID at 7.

On November 9, 2020, the appellant filed a petition for review of the initial

decision. Petition for Review (PFR) File, Tab 1 at 3. The Acting Clerk of the

Board subsequently notified the appellant that her petition for review appeared to

be untimely and provided her with an opportunity to submit a motion requesting

either to accept the filing as timely or waive the time limit for good cause.

PFR File, Tab 2 at 1-2. The appellant has not responded to the Acting Clerk’s

notification. The agency has responded to the petition for review. PFR File,

Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The petition for review is untimely filed.

The initial decision indicated that the appellant’s petition for review had to

be filed by November 5, 2020. ID at 7. However, the appellant did not file her

petition for review until November 9, 2020, four days after the deadline. PFR

File, Tab 1. The Board’s regulations provide that a petition for review must be

filed within 35 days of the issuance of the initial decision or, if the appellant

shows that the initial decision was received more than 5 days after the date of

issuance, within 30 days after the date she received the initial decision. 5 C.F.R.

§ 1201.114(e). Although the appellant has not submitted a motion in support of

her untimely petition for review, in her petition for review she asserted that she

does not know when she received the initial decision. PFR File, Tab 1 at 3.

The appellant was registered as an e-filer at the time and, therefore, is deemed to

have received the administrative judge’s orders on the date of electronic

submission, pursuant to 5 C.F.R. § 1201.14(m)(2) (2020). Rivera v. Social

Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009); IAF, Tab 1 at 2, Tab 11.

Further, as an e-filer, the appellant was responsible for monitoring her case

activity at e-Appeal to ensure that she received all case-related documents.

5 C.F.R. § 1201.14(j)(3) (2020).

We deem the appellant to have received the initial decision on

October 1, 2020, the date it was electronically issued. ID at 1; IAF, Tab 11. Her

deadline for filing a petition for review was 35 days later, on November 5, 2020.

PFR File, Tab 2 at 1. Therefore, the appellant’s November 9, 2020 petition for

review was filed 4 days untimely.

The appellant has failed to demonstrate good cause for her untimely filed petition

for review.

In her petition for review, the appellant stated as good cause for her

untimely filing that her equal employment opportunity (EEO) “investigation just

arrived and shows substantial discrimination as evidence.” PFR File, Tab 1 at 3.

The Board will waive its filing deadline only upon a showing of good cause for

the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). To establish good cause for an

untimely filing, a party must show that she 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). The Board will consider the length of

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

whether she is proceeding pro se, and whether she has presented evidence of the

existence of circumstances beyond her control that affected her ability to comply

with the time limits or of unavoidable casualty or misfortune which similarly

shows a causal relationship to her inability to timely file her 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). The discovery of new evidence may

constitute good cause for waiver of the Board’s filing deadline if the evidence

was not readily available before the close of the record below and is of sufficient

weight to warrant an outcome different from that of the initial decision.

Minnich v. Office of Personnel Management, 63 M.S.P.R. 573, 575 (1994),

aff’d per curiam, 53 F.3d 348 (Fed. Cir. 1995) (Table).

Applying the Moorman factors, we find that the appellant has failed to

establish good cause for her untimely petition for review. Although the appellant

is proceeding pro se and her delay in filing was only 4 days, she has not provided

any explanation as to why she was unable to timely file her petition for review or

request an extension. See Rivera, 111 M.S.P.R. 581, ¶¶ 6-7 (declining to excuse a

pro se appellant’s 5-day delay in filing a petition for review allegedly caused by

the loss of electricity during a portion of the filing period). To the extent the

appellant argues that her recent receipt of an EEO report of investigation shows

good cause, we are not persuaded. PFR File, Tab 1 at 3. The appellant did not

submit the report of investigation, provide the date she received it, or otherwise

establish that the information in the report was unavailable when the record

closed, despite her due diligence. Id. Therefore, we find that the appellant has

not presented new evidence on which to grant review of the initial decision.

Mills v. U.S. Postal Service, 119 M.S.P.R. 482, ¶¶ 3, 5 (2013) (finding the Board

would not consider the appellant’s EEO report of investigation because the

appellant failed to show that the information in the documents was unavailable

before the close of record).

The appellant may be attempting to assert that she should be subject to the

deadlines applicable to filing mixed-case appeals, which are in some instances

triggered by the agency’s processing of the employee’s EEO complaint.

See 5 C.F.R. § 1201.154 (discussing these deadlines). This argument is

unavailing. The appellant’s untimely filing here was a petition for review, not an

initial appeal subject to the deadlines in 5 C.F.R. § 1201.154. In any event, the

appellant’s alleged nonpromotion cannot serve as the basis for a mixed-case

appeal because a nonpromotion is not an otherwise appealable action.

See Pridgen v. Office of Management and Budget, 117 M.S.P.R. 665, ¶¶ 4, 7

(2012) (explaining that the Board did not have jurisdiction over an appeal as a

mixed case because a nonselection is not an otherwise appealable action).

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 nonpromotion appeal.

NOTICE OF APPEAL RIGHTS 2

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

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.

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

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

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.