The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JARRELL FALAS NOWLIN, DOCKET NUMBER
Appellant, PH-0752-12-0272-I-1
v.
DEPARTMENT OF DEFENSE, DATE: April 14, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Jarrell Falas Nowlin, Loxahatchee, Florida, pro se.
Jessica Trombetta and Nicole Colucci, Fort George G. Meade, Maryland,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his removal. For the reasons set forth below, the appellant’s petition
for review is DISMISSED as untimely filed without good cause shown for the
delay. 5 C.F.R. § 1201.114(e), (g).
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 Prior to his removal, the appellant was employed as a GS-13 Executive
Staff Officer with the National Security Agency (NSA), within the Department of
Defense. Initial Appeal File (IAF), Tab 8, Subtab B. By statute, NSA employees
are required to maintain a security clearance as a condition for employment. See
50 U.S.C. §§ 831-835. On January 4, 2010, the agency’s Office of Personnel
Security (OPS) issued a Decision Memorandum revoking the appellant’s security
clearance and proposing to remove him for failure to meet a mandatory condition
for employment. IAF, Tab 8, Subtab I. The Decision Memorandum set forth the
reasons for the decision, which included, among other factors, the appellant’s
recent criminal convictions. Id. The Chief of Security Information Management,
OPS, notified the appellant of the revocation decision and proposed removal
action, and provided him a copy of the Decision Memorandum and supporting
documentation. Id., Subtab H. The appellant requested review by the Chief of
the Adjudications Division, OPS, but the revocation was sustained on review.
Id., Subtabs F-G. The appellant then exercised his right to an in-person final
review by the agency’s Access Appeals Panel. Id., Subtab E. By letter dated
August 10, 2010, the Access Appeals Panel notified the appellant of its final
decision to sustain the revocation of the appellant’s security clearance. Id.,
Subtab D. Subsequently, by memorandum dated August 16, 2010, the agency
informed the appellant that, as a result of the Panel’s decision, he no longer met a
mandatory condition of NSA employment, and would therefore be removed,
effective August 30, 2010. Id., Subtab B.
¶3 This appeal followed. IAF, Tab 1. On July 24, 2012, the administrative
judge issued an initial decision sustaining the removal action. IAF, Tab 41,
Initial Decision. The administrative judge advised the appellant that her decision
would become final on August 28, 2010, unless a petition for review was filed by
that date. Id. at 13.
3
¶4 The appellant filed a petition for review on November 30, 2015. Petition
for Review (PFR) File, Tab 1. Pursuant to the Clerk of the Board’s instructions,
the appellant filed a motion for the Board to accept the filing as timely and/or
waive or set aside the time limit. PFR File, Tabs 2-3. In support of his motion,
he explained that, during the week before he filed his petition for review, he
obtained a copy of a background investigation report showing that his criminal
convictions in the state of Maryland had been expunged or overturned. PFR File,
Tab 3. He attached a copy of the background investigation report, but did not
provide copies of any relevant court documents. Id. The agency has responded in
opposition to the appellant’s motion, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 4, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(d). Here, the appellant has not alleged or established that he received
the initial decision more than 5 days after its issuance on July 24, 2012. PFR
File, Tab 1. Thus, the appellant’s petition for review, which was filed on
November 30, 2015, was untimely filed by more than 3 years.
¶6 The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201.114(f). 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). 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
4
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 timely file his petition. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, Moorman v. Merit Systems
Protection Board, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7 The discovery of new evidence may constitute good cause for waiver of the
filing deadline if the appellant shows that the evidence was not readily available
before the record below closed, and that it is of sufficient weight to warrant an
outcome different from that of the initial decision. Wyeroski v. Department of
Transportation, 106 M.S.P.R. 7, ¶ 11, aff’d, 253 F. App’x 950 (2007). However,
even assuming that the appellant’s new evidence was not previously available
despite his due diligence, it is not material to the outcome of this appeal because
his removal was based on the revocation of his security clearance, not his
criminal record. IAF, Tab 8, Subtab B. While the revocation decision appears to
have been based in part on the appellant’s criminal convictions, which he claims
to have since been overturned or expunged, the Board lacks authority to review
the merits of a security clearance determination. Department of the Navy v. Egan,
484 U.S. 518, 530-31 (1988). Consequently, the appellant’s new evidence is not
of sufficient weight to warrant an outcome different from the initial decision.
¶8 The appellant’s remaining arguments concern the merits of his case, and do
not establish good cause for the untimely filing. See Wright v. Department of the
Treasury, 113 M.S.P.R. 124, ¶ 8 (2010). Furthermore, while we are mindful of
the appellant’s pro se status, the 3-year filing delay in this case is significant. See
Wyeroski, 106 M.S.P.R. 7, ¶ 11. Under these circumstances, we find the
appellant has not shown good cause for the untimely filing of his petition for
review. Id.
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
5
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s removal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
6
See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time. 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. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.