The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE, DOCKET NUMBER
Appellant, DC-0752-13-0026-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 26, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laura A. O'Reilly, Esquire, Virginia Beach, Virginia, for the appellant.
Deborah Sciascia, Esquire, San Diego, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of his indefinite suspension as withdrawn. For the reasons
set forth below, the appellant’s petition for review is DISMISSED as untimely
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
filed without good cause shown for the filing delay, 5 C.F.R. § 1201.114(e), (g),
and the appellant’s request to reopen his appeal is DENIED, 5 C.F.R. § 1201.118.
BACKGROUND
¶2 The appellant held the position of Intelligence Specialist with the agency’s
Naval Special Warfare Development Group. Initial Appeal File (IAF), Tab 4 at
18-19. The position required him to obtain and retain a Top Secret clearance with
eligibility to access classified information. Id. at 62. On June 18, 2012, the
agency suspended the appellant’s security clearance and, consequently, his ability
to access classified information. Id. at 43. After providing the appellant notice
of the proposed action and an opportunity to respond, the agency indefinitely
suspended him without pay from his Intelligence Specialist position, effective
September 5, 2012, pending resolution of his security clearance status. Id. at
19-27, 40-43.
¶3 On October 3, 2012, the appellant filed an appeal of his indefinite
suspension, alleging that the agency’s actions violated his due process rights.
IAF, Tab 1 at 3, 5. During a conference call between the parties and the
administrative judge on November 27, 2012, the appellant stated that, upon
further review of the applicable case law and given his limited resources, he did
not intend to pursue the appeal and wanted to withdraw it. IAF, Tab 11 at 1. The
administrative judge noted in the Summary of Conference Call that the appellant
understood that the withdrawal of his appeal would be with prejudice, which
meant that it could not be refiled. Id. The administrative judge requested that the
appellant file a notice of withdrawal in writing, id., which he timely submitted
into the record, IAF, Tab 12 at 3.
¶4 On November 29, 2012, the administrative judge issued an initial decision
dismissing the appeal as withdrawn. IAF, Tab 13, Initial Decision (ID) at 1-2.
She noted that the initial decision would become final unless a petition for review
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was filed by January 3, 2013. ID at 2. The Board notified the appellant, who was
a registered e-filer, of the decision via email. ID at 7-8.
¶5 On April 3, 2014, the appellant filed a pleading entitled “Appellant’s
Petition for Review and Request to Reopen Appeal.” Petition for Review (PFR)
File, Tab 1. The Office of the Clerk of the Board, by notice dated April 4, 2014,
acknowledged the appellant’s request as a petition for review of the
November 29, 2012 initial decision. PFR File, Tab 2. The Clerk informed the
appellant that the Board may dismiss his petition for review as untimely filed
unless he submitted a motion showing that his petition for review was timely filed
or that good cause existed for the filing delay. Id. The appellant consequently
filed a motion to waive the timeliness requirement of his pleading, PFR File, Tab
4, and the agency filed an opposition in response to the appellant’s motion, PFR
File, Tab 5. 2
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board treats a request to reopen an initial decision that became final
when neither party petitioned for review as an untimely filed petition for review.
Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009); see
Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 13 (2010). Therefore, we
will initially consider the appellant’s submission as an untimely filed petition for
review.
¶7 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows he received the initial decision more than 5 days after it was issued, within
2
The agency also filed a motion to join the current appeal with another appeal filed by
the same appellant that is also pending before the Board, which the appellant did not
oppose. PFR File, Tabs 8-9. We find, however, that joinder would not expedite the
processing of the appeals. See 5 C.F.R. § 1201.36(b)(1). Accordingly, we deny the
agency’s motion.
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30 days of his receipt. 5 C.F.R. § 1201.114(e). Here, because the appellant was a
registered e-filer, the last day on which the appellant could timely file his petition
for review was January 3, 2013. ID at 2, 7-8. Therefore, the appellant’s filing on
April 3, 3014, was untimely by 15 months, which is significant. See Miller v.
Department of the Army, 113 M.S.P.R. 572, ¶ 9 (2010).
¶8 The Board will waive the filing deadline for a petition for review only upon
a showing of good cause for the delay. Via v. Office of Personnel
Management, 114 M.S.P.R. 632, ¶ 5 (2010). To establish good cause for an
untimely filing, a party 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). Factors that are considered in the
determination of good cause include the length of the delay, the reasonableness of
the excuse and showing of due diligence, whether the appellant 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 that similarly shows a causal relationship to
his inability to file his petition in a timely manner. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d sub nom. Moorman v. Merit
Systems Protection Board, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶9 The appellant primarily argues that the Board should waive the filing
deadline for his petition for review because the indefinite suspension has
continued beyond any reasonable length of time. PFR File, Tab 4 at 4-5. He also
alleges that he “wasted no time” in filing a petition for review once he learned
from his counsel on February 20, 2014, that his indefinite suspension may have
been unlawful since its imposition. PFR File, Tab 1 at 3, Tab 4 at 4. First, the
appellant’s arguments regarding the merits of his underlying appeal are not
relevant to a determination on the timeliness issue. See Marasco v. U.S. Postal
Service, 66 M.S.P.R. 555, 558 (1995). Second, the appellant has not shown that
he exercised due diligence or ordinary prudence in filing his petition for review
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when he waited 42 days once he allegedly learned from his attorney that his
indefinite suspension may have been unlawful. See Cassidy v. U.S. Postal
Service, 65 M.S.P.R. 86, 89 (1994) (an appellant who delayed filing a petition for
review for 5 weeks after becoming aware of the alleged grounds for requesting
Board review did not show good cause for excusing the untimely filed petition).
In addition, although the appellant was pro se when he withdrew his appeal, he is
represented on review. IAF, Tab 1 at 1, Tab 4 at 4. Under these circumstances,
the appellant has set forth no grounds for finding good cause for a waiver of the
filing deadline.
¶10 Regarding the appellant’s request to reopen his withdrawn appeal, we deny
his request. The Board may at any time reopen, on its own motion, an appeal in
which it has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B); 5 C.F.R.
§ 1201.118. Because an appellant’s withdrawal of an appeal is an act of finality
that has the effect of removing the appeal from the Board’s jurisdiction, the
Board will exercise its discretion to reopen a withdrawn appeal only in unusual or
extraordinary circumstances and generally within a short period of time after the
decision becomes final. 5 C.F.R. § 1201.118; see Shannon, 110 M.S.P.R. 365,
¶ 9 (the Board’s authority to reopen a case is limited by the requirement that such
authority be exercised within a reasonably short period of time, which is usually
measured in weeks, not months or years); see also Tipsword v. Department of the
Army, 66 M.S.P.R. 53, 55-57 (1994). Here, the initial decision became final 15
months before the appellant filed his petition for review. PFR File, Tab 1; ID at
2. Under these circumstances, we decline to exercise our discretion to reopen the
appeal. 3
3
The appellant claims in a sworn statement that he felt he had no choice but to
withdraw his appeal because the administrative judge and the agency attorney told him
during the November 27, 2012 conference call that there was no way he could win.
PFR File, Tab 4 at 7-8. In a sworn statement produced by the agency attorney, she
refutes the appellant’s contentions regarding the November 27, 2012 conference call,
stating that neither she nor the administrative judge ever informed the appellant that he
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¶11 Accordingly, we dismiss the petition for review as untimely filed, and we
deny the appellant’s request to reopen his appeal. 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
appellant’s withdrawal of his indefinite suspension appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
would not prevail in the matter; rather, the administrative judge informed him of his
burden of proof to establish his due process claim and also distinguished his appeal
from Diehl v. Department of the Army, 118 M.S.P.R. 344 (2012). PFR File, Tab 5 at
21-22. We find that the record, including the administrative judge’s summary of the
conference call and the appellant’s own statement of withdrawal, supports the agency’s
statement regarding the contents of the conference call. IAF, Tabs 11-12. Accordingly,
we find that the appellant has not shown that he based his withdrawal on
misinformation from the administrative judge.
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Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.