The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADAM C. POWELL, DOCKET NUMBER
Appellant, CH-0714-18-0579-C-1
v.
DEPARTMENT OF VETERANS DATE: September 30, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Adam C. Powell, Marion, Illinois, pro se.
Grant T. Swinger, Hines, Illinois, for the agency.
Michael M. McFatridge, Esquire, Danville, Illinois, 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 compliance initial
decision, which denied his petition to enforce a settlement agreement he entered
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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into with the agency. 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).
BACKGROUND
¶2 The parties entered into an agreement settling the appellant’s appeal of his
removal on December 21, 2019. Powell v. Department of Veterans Affairs,
MSPB Docket No. CH-0714-18-0579-I-1, Initial Appeal File (IAF), Tab 13 at
5-7. The administrative judge entered the settlement agreement into the record
and issued an initial decision dismissing the appeal as settled on January 28,
2019. IAF, Tab 14, Initial Decision at 1-3. The appellant subsequently filed a
petition for enforcement alleging that the agency breached a number of terms of
the agreement, and on April 16, 2019, the administrative judge issued a
compliance initial decision denying the appellant’s petition for enforcement,
concluding that the agency established that it was in compliance with the terms of
the agreement and the appellant failed to present any evidence that his agreement
to settle the appeal was the product of misinformation. Compliance File , Tab 9,
Compliance Initial Decision (CID) at 1-5. The compliance initial decision
informed the appellant that the decision would become final on May 21, 2019,
unless he filed a petition for review by that date. CID at 5.
¶3 The appellant filed a petition for review over 2 years later, on February 14,
2022. 2 Petition for Review (PFR) File, Tab 1. In his petition for review, he
challenges the merits of the underlying removal action, noting that “several cases
that pertain [to 38 U.S.C. § 714] have been overturned.” Id. at 3, 5. On
February 16, 2022, the Office of the Clerk of the Board notified the appellant
2
The appellant is a registered e-filer. IAF, Tab 1 at 2. Registration as an e-filer
constitutes consent to accept electronic service of documents issued by the Board.
5 C.F.R. § 1201.14(e).
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that, because he filed his petition for review more than 35 days following the
issuance of the April 16, 2019 compliance initial decision, it was untimely. PFR
File, Tab 2 at 1. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely to be accompanied by a motion
to accept the filing as timely and/or to waive the time limit for good cause, set a
deadline for the appellant to file such a motion, and provided a sample motion.
Id. at 1-3, 6-8. The appellant did not file the required motion concerning the
timeliness of his petition for review. The agency did not file a response to the
appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that he received the
initial decision 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(e). The Board may
waive the time limit for filing a petition for review upon a showing of good cau se
for the untimely filing. 5 C.F.R. § 1201.114(g). To establish good cause, the
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Palermo v. Department of the Navy,
120 M.S.P.R. 694, ¶ 4 (2014). 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 circumstances beyond his
control that affected his ability to comply with the time limit or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Id.
¶5 Here, the administrative judge informed the appellant that the compliance
initial decision would become final on May 21, 2019, unless a petition for review
was filed by that date. CID at 5. The appellant filed his petition for review on
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February 14, 2022, more than 2 years and 8 months late, and failed to respond to
the letter from the Office of the Clerk of the Board instructing him to explain his
untimeliness. PFR File, Tab 1 at 1, Tab 2. An appellant who files a petition for
review late but does not file the required motion concerning the timeliness of his
petition for review has failed to show the due diligence and ordinary prudence
necessary for the Board to find good cause for his delay in filing. Galleno v.
Office of Personnel Management, 63 M.S.P.R. 440, 442 (1994) (finding that an
appellant who filed her petition for review 4 months late, and failed to file the
required motion on timeliness, failed to show good cause for waiver of the filing
deadline), aff’d, 48 F.3d 1236 (Fed. Cir. 1995) (Table); Goldberg v. Department
of Defense, 39 M.S.P.R. 515, 518 (1989) (stating that in the absence of good
cause shown, the Board will not waive its timeliness requirements even if the
delay is minimal); Mejia v. Office of Personnel Management, 38 M.S.P.R. 472,
473 (1988) (finding that, where the appellant failed to respond to the Clerk ’s
notice concerning the timeliness of his petition for review and his untimely filing
did not include a motion for waiver of the time limit or an affidavit or statement
to establish good cause, the appellant had not demonstrated good cause for the
untimely filing). Because the appellant failed to file the required motion, as was
explained in the February 16, 2022 letter acknowledging his petition for review,
we find that he has failed to establish good cause for the waiver of the time limit.
Galleno, 63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia, 38 M.S.P.R.
at 473; 5 C.F.R. § 1201.114(e).
¶6 Although he failed to respond to the Office of the Clerk of the Board’s
notice instructing him to demonstrate that his petition for review was timely filed
or that good cause existed for the late filing, PFR File, Tab 2, the appellant
appears to suggest in his petition for review that recent changes to the law have
called into question the validity of the removal action underlying his original
Board appeal, PFR File, Tab 1 at 3, 5. To the extent that the appellant is
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attempting to challenge the validity of the agreement settling his Board appeal, he
may file a separate petition for review of the initial decision issued in Powell v.
Department of Veterans Affairs, MSPB Docket No. CH-0714-18-0579-I-1. We
note, however, that such a petition for review would likely be untimely and
require explanation for the delay in filing.
¶7 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 compliance initial decision remains the final
decision of the Board regarding the compliance 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 s eeking 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
3
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.
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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
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
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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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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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
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:
4
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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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 war rants 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.