Opinion

Charles Adams v. Department of Defense

Court: Merit Systems Protection Board
Filed: Feb 3, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHARLES DERECK ADAMS, DOCKET NUMBER

Appellant, DC-0752-20-0303-I-1

DEPARTMENT OF DEFENSE, DATE: February 3, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles Dereck Adams, Herndon, Virginia, pro se.

Paul Y. Kim, Esquire, Redstone Arsenal, Alabama, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the

appellant’s petition for review is DISMISSED as untimely filed without good

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The appellant filed an appeal in which he alleged that certain named agency

officials had abused their power and obstructed justice when they chose to “look[]

the other way” while the agency mistreated him in 2010. Initial Appeal File

(IAF), Tab 2 at 4. He requested a hearing. Id. at 2. In support of his claim, he

submitted 94 pages of documents. IAF, Tab 3. The administrative judge issued a

jurisdictional show cause order, IAF, Tab 4, to which the appellant did not

respond.

¶3 On February 4, 2020, 2 the administrative judge issued an initial decision on

the written record in which he dismissed the appeal for lack of jurisdiction. IAF,

Tab 5, Initial Decision (ID) at 1, 3. The administrative judge notified the parties

that the initial decision would become final on March 10, 2020, if neither party

filed a petition for review. ID at 3.

¶4 On January 14, 2021, the appellant filed a petition for review in which he

challenged the administrative judge’s jurisdictional finding, arguing that the

Board has adjudicated many of his previous “discrimination complaints” and that,

if this matter is dismissed, there will be no other relief possible for him. Petition

for Review (PFR) File, Tab 1 at 4. With his petition, he submitted a list of the

many cases he has pursued before the Board. Id. at 6-8.

¶5 The Clerk of the Board notified the appellant that the petition for review

appeared to be untimely filed because the initial decision was issued on

February 4, 2020, but the petition for review was not postmarked or receive d on

or before March 10, 2020. PFR File, Tab 2. The Clerk afforded the appellant an

opportunity to file a motion to accept his filing as timely and/or to waive the time

The initial decision is dated January 4, 2020, IAF, Tab 5, but the accompanying

certificate shows that the decision was served on the parties on February 4, 2010. IAF,

Tab 6. For reasons set forth in this decision, we believe that the January date is

incorrect but that this apparent error did not prejudice the appellant’s rights. Karapinka

v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).

limit for good cause, and stated that such a motion must be accompanied by a

statement signed under penalty of perjury, or an affidavit, postmarked, if mailed,

or sent by facsimile on or before January 29, 2021. Id. at 2. The appellant did

not respond.

ANALYSIS

¶6 The Board’s regulations require that a petition for review be filed within

35 days after the date of issuance of the initial decision, or, if a party shows that

he received the initial decision more than 5 days after it was issued, within

30 days after his receipt of the initial decision. Palermo v. Department of the

Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The appellant does

not indicate that he received the February 4, 2020 initial decision more than

5 days after it was issued. Therefore, as stated in the initial decision, the petition

for review was due 35 days later, on March 10, 2020. ID at 3 -4. Therefore, the

appellant’s petition for review, filed on January 14, 2021, was 10 months late.

PFR File, Tab 1.

¶7 The Board will waive the filing deadline for a petition for review upon a

showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;

5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review

has the burden of establishing good cause for the untimely filing by showing that

he exercised due diligence or ordinary prudence under the particular

circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; Alonzo v.

Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether

a party 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 th e existence of

circumstances beyond his control that affected his ability to comply with the time

limit or unavoidable casualty or misfortune that similarly shows a causal

relationship to his ability to timely file his petition. 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).

¶8 Applying these factors, we find that the appellant has not shown good cause

for his filing delay. Despite his pro se status, his 10-month delay in filing his

petition for review is significant. Dow v. Department of Homeland Security,

109 M.S.P.R. 633, ¶ 9 (2008) (finding a delay of more than 1 month to be

significant, despite an appellant’s pro se status). As noted, the appellant did not

respond to the Clerk of the Board’s notice of his need to establish good cause for

his untimely filing and did not otherwise attempt to explain his filing delay. PFR

File, Tab 1. Therefore, we conclude that the appellant has set forth no grounds

for finding good cause for a waiver of the filing deadline. Bell v. Department of

Homeland Security, 112 M.S.P.R. 33, ¶ 8 (2009) (dismissing a petition for review

as untimely filed because a pro se appellant failed to respond to the Clerk’s order

on timeliness or otherwise demonstrate good cause for the delay).

¶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

of the petition for review. The initial decision remains the final decision of the

Board regarding the Board’s lack of jurisdiction over the underlying appeal.

NOTICE OF APPEAL RIGHTS 3

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

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.

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 foll ow 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).

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 att orney 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. ____ , 137 S. Ct. 1975 (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 yo u 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. 4 The court of appeals must receive your petition for

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.

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 co urt at the