# Joel J Warne v. Department of the Navy

> Merit Systems Protection Board · November 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10749551

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 22, 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- **Precedential status:** Unpublished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

JOEL JENNINGS WARNE, DOCKET NUMBER
Appellant, SF-1221-23-0305-W-1

v.

DEPARTMENT OF THE NAVY, DATE: November 22, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel Jennings Warne , Galveston, Texas, pro se.

Joel Lincoln Bouve , Corpus Christi, Texas, for the agency.

Henry Karp , Washington Navy Yard, D.C., 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

¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. On

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

petition for review, the appellant argues the merits of his appeal. He also argues
that the administrative judge erred in not crediting his allegations regarding his
delayed ability to access the Office of Special Counsel (OSC)’s email attaching
its close-out letter and in finding that equitable tolling was not warranted in his
case. 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 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
3

petition for review 2 and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).

NOTICE OF APPEAL RIGHTS 3
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).

2
With his petition for review, the appellant submits documents associated with his
equal employment opportunity (EEO) case, a document pertaining to iCloud email and
e-Appeal errors, several emails, and two declarations under penalty of perjury. Petition
for Review (PFR) File, Tab 2 at 34-69. The Board generally will not consider evidence
submitted for the first time on review absent a showing that: (1) the documents and the
information contained in the documents were unavailable before the record closed
despite due diligence; and (2) the evidence is of sufficient weight to warrant an outcome
different from that of the initial decision. Carson v. Department of Energy,
109 M.S.P.R. 213, ¶ 21 (2008), aff'd, 357 F. App’x 293 (Fed. Cir. 2009); 5 C.F.R.
§ 1201.115(d). Most of the documents are dated after the close of the record below, and
thus, they may constitute “new evidence.” However, they are not material to the appeal
because they do not address the timeliness issue and therefore fail to demonstrate that
the administrative judge erred in dismissing the appeal as untimely filed. With respect
to the documents purportedly related to the timeliness issue, they do not provide a basis
to disturb the initial decision. The appellant’s declaration regarding the inconsistencies
in his prior statements is based, for the most part, on information that was readily
available prior to the close of the record below, which the administrative judge
considered but correctly concluded did not change the fact that the appellant received
the OSC close-out letter at his Proton email address on the same date it was issued,
February 7, 2023. In addition, the appellant’s screenshot of an application error
associated with e-Appeal does not pertain to an error during the filing period for this
appeal, and the appellant’s screenshots of his iCloud issues are immaterial because he
used his Proton email account in his communications with OSC. With respect to any
documents predating the close of the record, the appellant has not asserted that they
were unavailable despite his due diligence when the record closed.
The appellant also submits multiple motions for leave to file an additional pleading.
PFR File, Tabs 4, 8, 10. In his July 2, 2023 motion, the appellant indicates that he
wishes to submit evidence showing that, from June 29, 2023, to July 2, 2023, he has
been experiencing issues sending emails using iCloud. PFR File, Tab 4 at 5. In his
December 30, 2023, and December 31, 2023 motions, the appellant asserts that he
wishes to submit documents associated with his EEO case, including a December 18,
2023 Letter of Return for Second Supplemental Investigation and three declarations of
agency officials, and information that would implicate agency officials in a potentially
criminal conspiracy to extort him out of his claims. PFR File, Tab 8 at 5, Tab 10 at 4.
In a January 9, 2024 pleading revising his December 31, 2023 motion, the appellant
4

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).

raises assertions that go to the merits of his appeal. PFR File, Tab 12 at 8. Once the
record closes on review, no additional evidence or argument will be accepted unless it
is new and material and was not readily available before the record closed. Maloney v.
Executive Office of the President, 2022 MSPB 26, ¶ 4 n.4; 5 C.F.R. § 1201.114(k)
(2023). As to his first motion, the evidence he seeks leave to file postdates the filing
period for his IRA appeal and he has failed to explain how it would warrant an outcome
different from the initial decision. As to his other motions, his arguments and evidence
pertain to the merits of his IRA appeal and are not material to the dispositive timeliness
issue. Accordingly, we deny the appellant’s motions.
3
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.
5

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
6

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
7

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. 4 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

4
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.
8

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10749551. Public record. Not legal advice.