# Tory M Stark v. Department of the Army

> Merit Systems Protection Board · December 20, 2024

URL: https://www.frixlaw.com/law-library/cases/10769720

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** December 20, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TORY M. STARK, DOCKET NUMBER
Appellant, PH-0752-23-0165-I-1

v.

DEPARTMENT OF THE ARMY, DATE: December 20, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tory M. Stark , China, Maine, pro se.

Alexander R. Willette and Alvah J. Chalifour, Jr. , Augusta, Maine, 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 his removal appeal for lack of jurisdiction or, alternatively, as untimely
filed without good cause shown. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 petition for review. We VACATE the
administrative judge’s finding that the Board lacks jurisdiction over the appeal,
but we AFFIRM the administrative judge’s alternative finding regarding
timeliness. We DISMISS the initial appeal as untimely filed. 2
Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s adverse action, 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). If an appellant submits an appeal outside of the applicable
timeframe, the administrative judge will provide him with an opportunity to show

2
The agency’s response to the appellant’s petition for review was due November 3,
2023; however, it did not file a response until November 28, 2023. Petition for Review
(PFR) File, Tab 5, Tab 7 at 1. Both before and after its submission, the agency filed a
request for an extension of time, and, later, a motion to accept its filing as timely filed
or to waive the time limit. PFR File, Tabs 4, 8. Both pleadings explain the
circumstances surrounding the agency’s delay, namely, the Board’s implementation of
the new e-Appeal system and counsel’s multiple unsuccessful attempts to register as an
e-filer. PFR File, Tabs 4, 8. In recognition of this effort, the appellant requested that
the Board “deem [the agency’s] filing as timely and consider waiving or modifying the
deadline for their submission accordingly.” PFR File, Tab 9 at 3. Given the technical
complications experienced by e-Appeal users during this critical time, along with the
appellant’s acquiescence, we grant the agency’s motion and waive the filing deadline
for its response to the appellant’s petition for review. As such, we have considered that
response here.
3

why the appeal should not be dismissed as untimely. 5 C.F.R. § 1201.22(c). The
appellant bears the burden of proof on the timeliness issue. 5 C.F.R. § 1201.56(a)
(2)(ii).
In the initial decision, the administrative judge correctly explained that the
appellant filed his appeal approximately 268 days after his removal became
effective on June 13, 2022. Initial Decision (ID) at 7; Initial Appeal File (IAF),
Tab 1, Tab 5 at 29. The appellant does not dispute that the appeal was untimely
filed; the issue here is whether good cause exists.
To establish good cause for the untimely filing of an appeal, an 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). 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 or 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 appeal. 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).
In the initial decision, the administrative judge observed that the
appellant’s appeal was untimely filed by approximately 8 months and that he was
made aware of his appeal rights several times. ID at 7. The administrative judge
also acknowledged the appellant’s argument that he was so distraught over the
series of events leading up to and immediately after his removal that he was
unable to file a timely appeal. Id. However, he concluded that the appellant’s
general claims that he was “distraught and anxious and suffering from marital
discord do not establish good cause for such a lengthy delay.” Id. The
administrative judge also acknowledged that the appellant submitted medical
documentation concerning his anxiety and depression but concluded that it did
4

not explain how his anxiety and depression prevented him from timely filing an
appeal. ID at 7-8. Finally, the administrative judge considered the appellant’s
explanation that he was waiting for the agency’s review board’s decision, but he
reasoned that the appellant’s actions in that regard “all highlight the fact that the
appellant was more than capable of filing a Board appeal.” ID at 8. Accordingly,
he found that, in the alternative, the appeal should be dismissed as untimely filed
without good cause shown.
On review, the appellant argues that the administrative judge
“underestimated” the gravity of his depression. Petition for Review (PFR) File,
Tab 1 at 5. Although we are sympathetic to the appellant’s situation, he has still
not explained how, or submitted evidence demonstrating that, his mental health
condition precluded him from filing a timely appeal. See Braxton v. Department
of the Treasury, 119 M.S.P.R. 157, ¶ 7 (2013) (stating that an appellant must,
among other things, explain how the illness prevented him from timely filing his
appeal or a request for an extension of time to establish good cause for failure to
file on time due to an illness); Lacy v. Department of the Navy, 78 M.S.P.R. 434,
437 (1998) (explaining that the Board will find good cause to waive a filing limit
when a party shows that he suffered from an illness that affected his ability to file
on time). For instance, the appellant has not shown that he was unable to
comprehend the filing deadline or otherwise unable to focus due to his mental
condition. To the contrary, and as noted by the administrative judge, in the time
following his removal but before he filed his appeal, the appellant appears to have
been actively involved in the process concerning agency review of the AR 16-5
investigation. IAF, Tab 6 at 6, 8-14, Tab 9 at 12. He has not explained why his
mental health condition or, as also argued on review, the agency’s “deceptive
behavior,” PFR File, Tab 1 at 5, hindered his ability to timely file an appeal but
otherwise did not interfere with his ability to engage with the agency.
5

Accordingly, we dismiss the appeal as untimely. We need not reach the
issue of jurisdiction, and therefore we vacate the administrative judge’s finding
that the Board lacks jurisdiction over the appeal.

NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Boards 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

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.
6

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
7

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
8

(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. 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.

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.
9

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.
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/10769720. Public record. Not legal advice.