The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
UNYQUE MILES, DOCKET NUMBER
Appellant, DA-3443-21-0349-I-1
v.
DEPARTMENT OF HOMELAND DATE: August 26, 2022
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Unyque Miles, Duncanville, Texas, pro se.
Beverlei E. Colston, Esquire, Irving, Texas, 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 for lack of jurisdiction her appeal challenging her nonselection for a
promotion. For the reasons set forth below, the appellant’s petition for review is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
¶2 On July 26, 2021, the appellant filed an appeal challenging the agency’s
failure to select her for a Mission Support Specialist position at the Dallas
Field Office in Dallas, Texas. Initial Appeal File (IAF), Tab 1. On
September 15, 2021, the administrative judge issued an initial decision on the
written record, dismissing the appeal for lack of jurisdiction, finding that it did
not fall within any recognized exception to the general rule that the Board lacks
jurisdiction over nonselection decisions. IAF, Tab 13, Initial Decision (ID) at 1,
3-4. Specifically, she determined that the appellant failed to exhaust her
administrative remedies with the Office of Special Counsel (OSC) as to her claim
of whistleblower reprisal and failed to nonfrivolously allege that her nonselection
was the product of discrimination based on uniformed service . ID at 3-4.
The initial decision included instructions that it would become final on
October 20, 2021, unless a petition for review was filed by that date. ID at 4.
¶3 On January 9, 2022, the appellant electronically filed a pleading titled
“Response to Request for Reopening” in the aforementioned appeal. 2 Petition for
2
We need not forward the appellant’s allegation, submitted for the first time on review,
that she filed a complaint with OSC. Petition for Review (PFR) File, Tab 1 at 4, 14.
Generally, we will consider an allegation such as this on review because it implicates
the Board’s jurisdiction, an issue that is always before the Board and may be raised by
any party or sua sponte by the Board at any time during a Board proceeding. See Lovoy
v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003). However,
the appellant has already filed a separate individual right of action (IRA) appeal, Miles
v. Department of Homeland Security, MSPB Docket No. DA-1221-22-0112-W-1, Initial
Appeal File (0112 IAF), submitting the same documents from the instant petition for
review, PFR File, Tab 1 at 11-62. On April 21, 2022, the administrative judge issued
an initial decision in the IRA appeal, dismissing her claim for lack of jurisdiction. 0112
IAF, Tab 21, Initial Decision (0112 ID) at 1, 9-11. The initial decision became final
on May 26, 2022, when neither party filed a petition for review. 0112 ID at 11. Thus,
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Review (PFR) File, Tab 1. Because it was unclear whether the appellant intended
her pleading as a petition for review of the initial decision in this case, the Office
of the Clerk of the Board sought clarification of the intent of the appellant’s
filing. PFR File, Tab 2 at 1 n.*. She clarified via email on January 10, 2022, that
she intended her pleading as a petition for review of the September 15, 2021,
initial decision. Id. Consequently, the Clerk’s office issued an acknowledgement
order, acknowledging the appellant’s January 9, 2022, filing as a petition for
review of the initial decision in this case. PFR File, Tab 2.
¶4 Because the pleading was received after the October 20, 2021 initial
decision finality date, the Clerk’s office informed the appell ant that her petition
for review was untimely and that she must submit a “Motion to Accept Filing as
Timely or to Waive Time Limit” either by an affidavit or a statement signed
under penalty of perjury. Id. at 1-2. A blank sample motion was attached to the
acknowledgment letter. Id. at 7-8. The acknowledgment letter further stated that
the appellant’s motion must be submitted on or before January 26, 2022. Id. at 2.
The appellant has not filed a motion to accept her untimely petition for review or
to waive the time limit. The agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision , or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the administrative judge issued the
initial decision on September 15, 2021, and correctly informed the appellant that
we decline to forward this allegation for docketing and adjudication to the Dallas
Regional Office.
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she was required to file any petition for review no later than October 20, 2021.
ID at 1, 4. The appellant filed her petition for review on January 9, 20 22.
PFR File, Tab 2 at 8, Tab 3 at 1. As such, we find that the petition for review is
untimely filed by 2 months and 20 days.
¶6 The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause by showing that she 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 an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of due diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unavoidable
casualty or misfortune which similarly shows a causal relationship to her inability
to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4; 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).
¶7 We conclude that the appellant has failed to show good cause for a waiver
of the filing deadline. Even considering the appellant’s pro se status, the
appellant’s over 2 month delay is not minimal. See Wright v. Department of the
Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is not
minimal); Allen v. Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10
(2004) (declining to excuse a pro se appellant’s 14-day, unexplained delay in
filing a petition for review); Crozier v. Department of Transportation,
93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing is not minimal).
Additionally, the appellant has not presented evidence of due diligence or the
5
existence of circumstances beyond her control that affected her ability to file h er
petition. Further, despite being afforded the opportunity to do so, the appellant
has not offered any explanation for her delay in filing.
¶8 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 appellant’s nonselection 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 bel ow 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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.
6
(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 su ch 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
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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
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:
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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 c hallenge 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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4
The original statutory provision that provided for judicial re view 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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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.