Opinion

Christopher Dionne v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Feb 5, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 38.5%

explaining that “the agency’s failure to terminate an indefinite suspension after a condition subsequent is a separately reviewable agency action”

How later courts described this case

explaining that “the agency’s failure to terminate an indefinite suspension after a condition subsequent is a separately reviewable agency action”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER DIONNE, DOCKET NUMBER

Appellant, AT-3443-25-0085-I-1

DEPARTMENT OF THE NAVY, DATE: February 5, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher Dionne , Millington, Tennessee, pro se.

Marcus S. Lawrence, Jr. , Esquire, Pensacola, Florida, for the agency.

Tracey Rockenbach , Esquire, Washington, DC, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal from an indefinite suspension for lack of jurisdiction.

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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. For the reasons set forth below, we MODIFY the initial decision to

dismiss the appeal as untimely filed without good cause shown.

BACKGROUND

The appellant is employed by the agency as a GS-12 Operations Research

Analyst. Initial Appeal File (IAF), Tab 1 at 1. He previously filed several Board

appeals, including an appeal challenging a November 9, 2019 indefinite

suspension. Dionne v. Department of the Navy, MSPB Docket No. AT-0752-20-

0151-I-1 (Appeal File), (0151 AF), Tab 1 at 4-5, Tab 5 at 21-22, 36-37. The

suspension was based on an October 8, 2019 decision by the agency’s Navy

Recruiting Command (NRC) to suspend his access to classified information.

0151 AF, Tab 5 at 36-37, 39-40. An administrative judge dismissed that appeal

as withdrawn at the appellant’s request. 0151 AF, Tab 16, Tab 17, Initial

Decision (Mar. 9, 2020). The appellant filed a petition for review, which the

Board dismissed as untimely filed without good cause. Dionne v. Department of

the Navy, MSPB Docket Nos. AT-0752-20-0151-I-1 & AT-0752-20-0359-I-1,

Final Order at 2, 5-6 (July 6, 2023) (0151 Final Order).

In October 2024, the appellant filed the instant appeal, in which he asserted

that the agency “purposefully lied to the MSPB” in a prior unidentified Board

appeal. IAF, Tab 1 at 2. He indicated that the “lie” pertained to an October 8,

2019 decision by the NRC to suspend his access to classified information, which

he claimed was the purported basis for a 452-day indefinite suspension. Id.

The administrative judge issued an order to the appellant to show cause

why his appeal should not be dismissed due to lack of jurisdiction or

untimeliness. IAF, Tab 3. As relevant here, the administrative judge set forth the

appellant’s burden to show that his appeal was filed on time or that good cause

existed for the delay. Id. at 4-7. In response to the order to show cause, the

appellant argued that the Board has jurisdiction over, among other matters, his

November 9, 2019 indefinite suspension and the underlying NRC access

determination. IAF, Tab 4 at 4-7. He did not address the timeliness issue. The

agency submitted a reply requesting that the appeal be dismissed on a number of

bases, including as untimely filed. IAF, Tab 5 at 4-5.

The administrative judge issued an initial decision dismissing the appeal

for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1, 3. He found that

the appellant had not nonfrivolously alleged that he was subjected to an adverse

action that was appealable to the Board. ID at 3.

The appellant has filed a petition for review. 2 Petition for Review (PFR)

File, Tab 1. The agency has responded to the petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

An indefinite suspension lasting more than 14 days is an adverse action

appealable to the Board. 5 U.S.C. §§ 7512(2), 7513(d); Palafox v. Department of

the Navy, 124 M.S.P.R. 54, ¶ 8 (2016). To the extent that the administrative

The appellant requests a hearing for the first time on review. Petition for Review File,

Tab 1 at 4. However, he did not request a hearing below. Id.; IAF, Tab 1 at 2. The

appellant alleges that he was unaware of the need to request a hearing below, but the

administrative judge specifically advised him of this obligation. IAF, Tab 2 at 2.

Therefore, he waived his right to a hearing. See Pernicano v. Office of Personnel

Management, 9 M.S.P.R. 530, 531 (1982) (concluding that an appellant who had not

requested a hearing prior to filing his petition for review had waived his right to a

hearing); 5 C.F.R. § 1201.24(e) (explaining that if an appellant does not make a timely

request for a hearing, the right to a hearing is waived).

judge did not recognize that the appellant was alleging that he was subjected to

such a suspension, we clarify that the appellant did so. ID at 2; PFR File, Tab 1

at 5; IAF, Tab 1 at 2. Further, in his prior appeal of this suspension, an

administrative judge determined that the Board had jurisdiction over that action.

0151 AF, Tab 8. Therefore, we disagree with the administrative judge’s

jurisdictional finding in the instant appeal. For the following reasons, we modify

the initial decision to dismiss the appeal as untimely filed without good cause

shown.

When, as here, an appellant whose initial appeal was dismissed as

withdrawn seeks to renew his appeal at the regional level, whether by requesting

reopening or filing a second appeal, and the matter that the appellant seeks to

appeal is within the Board’s jurisdiction, the Board will treat the pleading below

as a new appeal. Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 12 (2010).

Generally, an appeal must be filed with the Board no later than 30 days after the

effective date of the agency’s action, or 30 days after the date of the appellant’s

receipt of the agency decision, whichever is later. 5 C.F.R. § 1201.22(b)(1).

The agency delivered its decision suspending the appellant on November 5,

2019, and the suspension was effective on November 9, 2019. 0151 AF, Tab 5

at 17, 19, 22. The decision letter advised the appellant of his Board appeal rights.

Id. at 21-22. The later date of November 9, 2019, serves as the relevant date for

calculating the 30 day deadline. Thus, the appellant had 30 days from that date,

or until December 9, 2019, to file his appeal. He filed the instant appeal on

October 28, 2024. IAF, Tab 1. Although the administrative judge advised the

appellant that there was a question as to whether his appeal was timely filed, the

appellant did not address the issue. IAF, Tab 3 at 4. We find that the appellant

untimely filed the instant appeal by over 4 years and 10 months.

The Board will waive the time limit for filing an appeal only upon a

showing of good cause for the delay in filing. Schuringa v. Department of the

Treasury, 106 M.S.P.R. 1, ¶ 7 (2007). 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. Id. 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 appeal. Id.

The appellant’s almost 5-year delay is not minimal. See Shannon v.

Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 7 (2009) (finding that a

3-year delay in filing a petition for review was not minimal). In any event, the

Board has consistently denied a waiver of the filing deadline if a good reason for

the delay is not shown, even when the delay is minimal and the filing party is pro

se. See Pace v. Office of Personnel Management, 113 M.S.P.R. 681, ¶ 11 (2010)

(so stating in the context of an untimely filed petition for review). Here, the

appellant has provided no excuse for his late filing, despite having the

opportunity to do so. Therefore, we find that he failed to demonstrate he

exercised due diligence or ordinary produce under the circumstances which would

excuse his late filing, and we dismiss the appeal as untimely filed. 3 See

When an indefinite suspension continues after the occurrence of a condition

subsequent that would otherwise require its termination, the continuation constitutes a

separately reviewable agency action. Sikes v. Department of the Navy, 2022 MSPB 12,

¶ 7 (citing Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1380-82 (Fed.

Cir. 2007) (explaining that “the agency’s failure to terminate an indefinite suspension

after a condition subsequent is a separately reviewable agency action”)). Here, the

appellant does not assert such a claim. Moreover, the record indicates that the

condition subsequent was met on February 3, 2021, when his continued eligibility was

verified by NRC and he was restored to pay status that same day. IAF, Tab 4 at 13-14.

To the extent that the appellant intended to raise a claim based on the agency’s failure

to terminate the suspension, such a claim would be untimely by more than 3 years, as

the instant appeal was not filed until October 28, 2024. IAF, Tab 1, Tab 4 at 13-14. As

noted above, the appellant has not addressed the timeliness issue. Accordingly, any

such claim also is barred as untimely filed without good cause.

Pangelinan v. Department of Homeland Security, 104 M.S.P.R. 108, ¶ 9 (2006)

(dismissing a petition for review as untimely filed without good cause when an

appellant provided no excuse for her late filing despite having two opportunities

to do so).

NOTICE OF APPEAL RIGHTS 4

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).

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.

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. 5 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