The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS LAMONT SUTTON, DOCKET NUMBER
Appellant, DC-0752-16-0130-I-3
v.
DEPARTMENT OF THE NAVY, DATE: November 28, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Simon Banks, Alexandria, Virginia, for the appellant.
Timothy R. Zelek, Quantico, Virginia, 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 that
affirmed his removal. For the reasons set forth below, we DISMISS the
appellant’s petition for review as untimely filed with no good cause shown.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 On November 13, 2015, the agency issued a decision sustaining the
appellant’s removal for “Inappropriate Conduct” and “Making Statements that
Caused Anxiety or Concern in the Workplace.” 2 Initial Appeal File (IAF), Tab 12
at 25-27. The appellant challenged the action on appeal. I AF, Tab 1. In a
May 24, 2018 initial decision based on the written record, Sutton v. Department
of the Navy, MSPB Docket No. DC-0752-16-0130-I-3, Appeal File (I-3 AF),
Tab 37, Initial Decision (I-3 ID), the administrative judge found that: (1) both
charges were sustained, I-3 ID at 7-16; (2) the appellant failed to establish his
claims of disability discrimination, id. at 16-27; retaliation for whistleblowing, id.
at 28-34; and harmful procedural error, violation of law or due process, id.
at 34-38; and (3) adverse action under these circumstances promotes the
efficiency of the service and removal is a reasonable penalty for the sustained
charges, id. at 38-43. Accordingly, the administrative judge affirmed the
agency’s action, id. at 1, 43, and notified the parties that the initial decision
would become final on June 28, 2018, unless either party filed a petition for
review by that date, id.
¶3 On July 13, 2018, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1 at 6-20. He explained that he had attempted to “e-file
or FAX” it, just minutes before the expiration for the filing deadline, but had
experienced difficulty, and so sought to submit the petition for review by email to
the Board at MSPB.gov. Id. at 4. The Clerk of the Board issued a letter to the
appellant and his representative stating that the petition for review appeared to be
untimely filed because it was not postmarked or received on or before June 28,
2018. PFR File, Tab 2 at 1. The Clerk of the Board afforded the appellant an
2
The appeal was twice dismissed without prejudice. Sutton v. Department of the Navy,
MSPB Docket No. DC-0752-16-0130-I-1, Initial Decision at 1, 3 (Aug. 3, 2017); Sutton
v. Department of the Navy, MSPB Docket No. DC-0752-16-0130-I-2, Initial Decision
at 1, 2 (Feb. 12, 2018).
3
opportunity to file a motion to accept the filing as timely and/or to waive the time
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 ma iled,
or sent by facsimile on or before July 28, 2018. Id. at 2. The appellant filed a
timeliness motion in response. PFR File, Tab 3. The agency did not file a
response to the appellant’s petition for review.
ANALYSIS
¶4 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’s
representative asserts that he received access to the May 24, 2018 initial decision
“on or about May 29, 2018.” PFR File, Tab 3 at 4. However, because the
appellant and his representative were registered e-filers, I-3 AF, Tab 38, they are
deemed to have received the initial decision on the date of electronic submission,
May 24, 2018, 5 C.F.R. § 1201.14(m)(2), and, as stated in the initial decision, the
petition for review was due 35 days later, on June 28, 2018. I-3 ID at 43.
Accordingly, the petition for review, filed on July 13, 2018, was 15 days late.
¶5 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
4
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
limit or unavoidable casualty or misfortune that si milarly 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).
¶6 Under limited circumstances, the Board will excuse delays in filing caused
by difficulties encountered with the Board’s e-Appeal system. E.g., Salazar v.
Department of the Army, 115 M.S.P.R. 296, ¶¶ 6-8 (2010) (excusing a filing delay
when the appellant alleged that he attempted to electronically file his petition for
review on time and the e-Appeal system showed that he had, in fact, accessed the
system prior to the date his petition was due; it was possible to exit the system
without receiving a clear warning that he had not yet filed his pleading; and once
he became aware that his petition had not been filed, he contacted the Board and
submitted a petition for review that included an explanation of his untimeliness);
Lamb v. Office of Personnel Management, 110 M.S.P.R. 415, ¶ 9 (2009)
(excusing the untimely filing of an appeal when the appellant reasonably believed
he filed timely by completing all the questions on the on -line appeal form and
exited the website without receiving a clear warning that his appeal was not
filed). However, we do not find that the appellant’s failure to file timely is
excusable in this instance.
¶7 The appellant’s representative here claims that he “experienced heightened
difficulty” in his ability to e-file in the minutes before midnight on the final date
for filing, June 28, 2018, such that, “based upon exigency of the circumstances”
and “given the time restriction afforded,” he felt he had no other alternati ve but to
submit the petition for review to the Board via email. PFR File, Tab 1 at 4. In a
different pleading, the appellant’s representative states that, when he attempted to
use e-Appeal minutes before the end of the filing period, “it was not sit uated
where it could be assessed (sic).” PFR File, Tab 1 at 22. The Board’s e-Appeal
5
logs do not show that the appellant’s representative accessed e-Appeal on
June 28, 2018. 3 Notably, there were no e-Appeal site issues or system-wide
outages recorded on June 28, 2018. Moreover, by his own admission, the filing
“difficulty” the appellant’s representative encountered was due to the fact that his
personal computer “contained an excessive amount of photos, videos, emails and
other files,” causing a delay in populating and requiring him to purchase
additional space “to accommodate the ever increasing data.” 4 PFR File, Tab 3
at 5.
¶8 Based on the above, we find that the appellant has failed to establish good
cause for his untimely petition for review. When an appellant delays the filing of
his petition for review until the eleventh hour, he bears the risk that unforeseen
circumstances could prevent the timely filing of his petition for review. Baker v.
Department of Justice, 41 M.S.P.R. 25, 27 (1989). The actions of the appellant’s
representative in waiting until minutes before the filing dea dline to submit his
pleading does not demonstrate the exercise of due diligence or ordinary prudence,
id. (citing Alonzo, 4 M.S.P.R. at 184), neither does his use of email, as he had
been made aware that the Board does not accept pleadings by email. 5 C.F.R.
§ 1201.14(d). Notwithstanding, he waited more than 2 weeks after again being so
notified to file his petition for review. Moreover, the appellant was not pro se,
and, whatever the issues his representative experienced with his personal
computer, he has failed to show any circumstances beyond his control such as
3
The Board’s e-Appeal logs show that the appellant successfully logged on the New
Appeal section on June 28, 2018, and accessed his account information, but there is no
indication that he attempted to file a pleading, as is required to submit a petition for
review.
4
In an effort to show that the Board received the petition for review he claims he filed
by email on June 28, 2018, the appellant has submitted a portion of an email he
received from the Board on June 29, 2018. PFR File, Tab 1 at 26, Tab 3 at 10. Our
review of the email communication from the Office of the Clerk of the Board reflects
that the Board advised the appellant that he previously had been notified that the Board
does not accept submissions by email, and that therefore his submission would not be
placed in the record in this appeal. See 5 C.F.R. § 1201.14(d).
6
unavoidable casualty or misfortune that affected his ability to comply with the
time limits. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8, 10 (finding a petition for
review untimely when the appellant and his representative were registered
e-filers, should have realized from system notices that the petiti on had not been
submitted, and failed to file the petition until 7 days after it was due) ; Sofio v.
Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (finding that the appellant
is responsible for the errors of his chosen representative ).
¶9 Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown. 5 This is the final decision of the Merit Systems Protection
Board on the timeliness of the petition for review. The initial decision remains
the final decision of the Board regarding the removal appeal.
NOTICE OF APPEAL RIGHTS 6
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.
5
The appellant’s motion to join this matter with an appeal he filed “in 2016,” PFR File,
Tab 4, is DENIED.
6
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.
7
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 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
8
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 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:
9
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. 7 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).
7
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 Appeal s
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.
10
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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.