The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SONGHUI MARTIN, DOCKET NUMBER
Appellant, SF-0752-22-0196-I-2
v.
DEPARTMENT OF DEFENSE, DATE: April 29, 2026
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Douglas Frison , Esquire, APO, APO/FPO Pacific, 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 this appeal asserting that the appellant’s September 2020 resignation
was involuntary. The initial decision dismissed for lack of jurisdiction, while
also finding the appeal untimely. On petition for review, the appellant argues,
among other things, that she made a nonfrivolous allegation of an involuntary
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
resignation entitling her to a hearing and that she showed good cause to excuse
her delay in filing her appeal. 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 petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 1 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant failed to establish jurisdiction.
On review, the appellant argues that the administrative judge improperly
denied jurisdiction based on a summary review of the evidence, in which he
weighed evidence in violation of Ferdon v. U.S. Postal Service, 60 M.S.P.R. 325,
329 (1994). Petition for Review (PFR) File, Tab 1 at 12-13, 16-17. In Ferdon,
60 M.S.P.R. at 329, the Board stated that in determining whether an appellant has
made a nonfrivolous allegation of jurisdiction, an administrative judge may
consider an agency’s documentary submissions, but to the extent that the
agency’s evidence constitutes mere factual contradiction of the appellant’s
otherwise adequate prima facie showing of jurisdiction, the Board may not weigh
1
The appeal of the appellant’s rescinded removal, Martin v. Department of Defense,
MSPB Docket No. SF-0752-19-0687-I-4, will be adjudicated in a separate decision.
3
evidence and resolve conflicting assertions of the parties and the agency’s
evidence may not be dispositive. It is apparent that the administrative judge
centered his denial of jurisdiction on his review of the appellant’s pleadings and
evidence. Martin v. Department of Defense, MSPB Docket No. SF-0752-22-
0196-I-2, Appeal File, Tab 7, Initial Decision (ID) at 13-20. Although the
administrative judge considered the agency’s evidence, ID at 16-19, we discern
no instance in which he violated the proscriptions in Ferdon and find the
appellant’s claim to be without merit.
Next, we find that the appellant’s claim that the administrative judge
improperly relied on whistleblower reprisal cases also lacks merit. PFR File,
Tab 1 at 15. We fail to see any instance in which the administrative judge relied
on inapplicable case law concerning whistleblower reprisal in denying
jurisdiction. ID at 13-20. Finally, we need not consider the new evidence the
appellant files on review, including the information contained in her declaration,
because she fails to show that it was unavailable, despite the exercise of due
diligence, before the record closed below. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989); Avansino v. U.S. Postal Service,
3 M.S.P.R. 211, 213-14 (1980); PFR File, Tab 1 at 22-28. In any event, we fail to
discern how the evidence would establish jurisdiction. Accordingly, the appellant
affords no basis to disturb the administrative judge’s denial of jurisdiction.
The appellant failed to establish good cause for her untimely filing of her appeal.
To support her claim that good cause excused the untimely filing of her
appeal, the appellant argues on review that a case the administrative judge relied
upon in finding her appeal untimely filed, Gordy v. Merit Systems Protection
Board, 736 F.2d 1505 (Fed. Cir. 1984), is inapplicable. PFR File, Tab 1 at 11.
To the extent the appellant argues that there is a material difference between the
facts of Gordy and her case, we agree. The petitioner’s appeal in Gordy was
found untimely filed because he was aware that the Board was the proper forum
for his appeal over 3 months before he filed his Board appeal. 736 F.2d at 1508.
4
In contrast, the appellant’s failure to meet her burden of showing diligence was
due to her failure to present any evidence on appeal regarding when she learned
of her appeal rights. Thus, although Gordy can be distinguished from the present
case, the administrative judge’s reliance on Gordy does not warrant disturbing his
ultimate conclusion that the appeal was untimely filed.
Finally, among other new evidence she files on review, the appellant
submits a sworn declaration in which she claims not to have learned that she
could file a constructive removal appeal until she was so informed by her current
representative in “late December, 2021.” PFR File, Tab 1 at 23. Again, we need
not consider the information contained in the declaration because the appellant
fails to show that it was unavailable, despite the exercise of due diligence, before
the record closed below. Grassell, 40 M.S.P.R. at 564.
Assuming, however, it is true that the appellant only became aware of her
appeal rights in late December 2021, she fails to state when she learned of her
appeal rights with sufficient precision to have shown good cause. The Board has
found that appellants who were not afforded official notices of their appeal rights
but who filed appeals within 30 days of discovering those rights showed
sufficient diligence to establish good cause. See, e.g., Carroll v. U.S. Postal
Service, 87 M.S.P.R. 570, ¶¶ 7, 11 (2001); O’Leary v. Office of Personnel
Management, 86 M.S.P.R. 87, ¶¶ 13-14 (2000). However, the Board has upheld
dismissals of appeals or petitions for review filed as little as 1 day late absent
good cause. Lands v. Department of the Air Force, 95 M.S.P.R. 593, ¶¶ 2-3, 6-7
(2004); Davis v. Department of the Navy, 52 M.S.P.R 450, 453 (1992);
McAdory v. Department of Justice, 6 M.S.P.R. 112, 114 (1981). Because late
December 2021 could range from December 16 to December 31, the appellant’s
declaration fails to establish that she filed her January 27, 2022, appeal within
30 days from when she learned of her appeal rights. Further, the appellant should
have known due to her prior appeal, in which she was represented, of the 30-day
time limit for filing an appeal. 5 C.F.R. § 1201.22(b); Martin v. Department of
5
Defense, MSPB Docket No. SF-0752-19-0687-I-1, Initial Appeal File, Tab 1. She
was also informed in the initial decision of the general 30-day deadline and of her
burden to show that she was diligent in filing an appeal after she learned she
could do so. ID at 12-13. Under these circumstances, we believe the appellant’s
claim regarding when she learned of her appeal rights fails to show good cause
for her delay. The appellant also fails to show how the remainder of her new
evidence warrants disturbing the initial decision on the timeliness issue.
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
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.
2
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
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,
7
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
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. 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
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.
3
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.
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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.