Opinion

Christopher Dionne v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jul 6, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER DIONNE, DOCKET NUMBERS

Appellant, AT-0752-20-0151-I-1

AT-0752-20-0359-I-1

DEPARTMENT OF THE NAVY, DATE: JULY 6, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher Dionne, Millington, Tennessee, pro se.

Carol M. Lynch, Pensacola, Florida, for the agency.

Marcus S. Lawrence, Jr., NAS Pensacola, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of two initial decisions, one of

which was dismissed for lack of jurisdiction, and the other of which was

dismissed as withdrawn based on the appellant’s voluntary request for

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

withdrawal. Dionne v. Department of the Navy, MSPB Docket No AT-0752-20-

0359-I-1, Petition for Review (0359 PFR) File, Tab 1; Dionne v. Department of

the Navy, MSPB Docket No. AT-0752-20-0151-I-1, Petition for Review

(0151 PFR) File, Tab 1. For the reasons set forth below, we JOIN these appeals 2

and DISMISS the appellant’s petitions for review as untimely filed without good

cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

¶2 The appellant is employed as a GS-12 Operations Research Analyst with the

agency. Dionne v. Department of the Navy, MSPB Docket No. AT-0752-20-

0151-I-1, Initial Appeal File (0151 IAF), Tab 5 at 42. By a letter dated

October 8, 2019, the agency proposed to suspend the appellant’s access to

classified information and national security sensitive information systems,

pending final adjudication of the eligibility determination by the Department of

Defense Consolidated Adjudication Facility (DoDCAF). Id. at 39-40. In a letter

dated October 9, 2019, the agency also proposed to indefinitely suspend the

appellant based on the suspension of his access to classified information and

national security sensitive information systems. Id. at 36-37. The notice

informed the appellant that, if the decision to suspend him was reached, the

suspension would remain in effect until a final eligibility determination by

DoDCAF. Id. Effective that same day, the agency placed the appellant on p aid

administrative leave for 30 days. Id. at 33-34.

¶3 The appellant provided written and oral responses to the interim suspension

notice. Id. at 24, 28-31. After considering the appellant’s reply, by a letter dated

Joinder of two or more appeals filed by the same appellant may be appropriate when

joinder would expedite processing of the appeals and would not adversely affect the

interests of the parties. Boechler v. Department of the Interior, 109 M.S.P.R. 542, ¶ 14

(2008), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); 5 C.F.R. § 1201.36(a)(2), (b). We

find that these appeals meet the regulatory criteria, and therefore, we join them.

October 31, 2019, the deciding official sustained the proposal, imposing the

indefinite suspension, effective immediately. Id. at 21-22. The appellant timely

filed a Board appeal challenging his indefinite suspension and requested a

hearing. 0151 IAF, Tab 1. The appellant subsequently requested to withdraw his

appeal, stating that he instead intended to challenge the suspension of access

determination with DoDCAF or the Personnel Security Appeals Board .

0151 IAF, Tab 16. Based on the appellant’s request, on March 9, 2020, the

administrative judge issued an initial decision dismissing the appeal as

withdrawn, concluding that the appellant’s request was “clear, unequivocal, and

decisive.” 0151 IAF, Tab 17, Initial Decision (0151 ID) at 1-2.

¶4 On March 16, 2020, the appellant filed a separate Board appeal purportedly

challenging his “suspension without cause,” and identified May 9, 2019 as the

effective date of the agency action. Dionne v. Department of the Navy, MSPB

Docket No. AT-0752-20-0359-I-1, Initial Appeal File (0359 IAF), Tab 1. In

response, the agency moved to dismiss the appeal for lack of jurisdiction, arguing

that the appellant had not suffered an appealable adverse action, or in the

alternative, that the appeal was untimely filed without good cause for the delay.

0359 IAF, Tab 5 at 6-8. Specifically, the agency noted that the appellant was

placed on paid administrative leave for 10 days from May 13, 2019 through

May 22, 2019, which the appellant incorrectly identified as a “suspe nsion,” and

that the appellant did not file a Board appeal challe nging the action until nearly

1 year later. Id. at 6. Because the appellant had not asserted that he was subject

to an appealable adverse action, the agency argued that the Board should dis miss

the appeal for lack of jurisdiction. Id. at 7. The appellant did not file a response

to the agency’s motion. In an initial decision dated May 15, 2020, the

administrative judge dismissed the appeal, concluding that the appellant had not

suffered an appealable adverse action when he was placed on administrative leave

for 10 days, with pay, and so the Board lacked jurisdiction over the appeal. 0359

IAF, Tab 6, Initial Decision (0359 ID) at 1-3.

¶5 On October 1, 2020, the appellant filed a pleading with the regional office

titled “Reopening an Appeal Dismissed Without Prejudice,” challenging the

merits of the agency’s decision suspending his access to classified information

and arguing that the agency violated his right to due process. 0151 PFR File,

Tab 1; 0359 PFR File, Tab 1. Because it was unclear whether the appellant

intended his pleading as a petition for review of the 0359 appeal or the 0151

appeal, or both, the Office of the Clerk of the Board sought clarification of the

intent of the appellant’s filing. 0151 PFR File, Tab 2; 0359 PFR File, Tab 2. The

appellant filed a response clarifying that he intended his pleading as a petition for

review of both appeals. 0151 PFR File, Tab 3; 0359 PFR File, Tab 3.

Consequently, the Clerk’s Office issued an order acknowledging the appellant’s

October 1, 2020 filing as a petition for review of both initial decisions. 0151 PFR

File, Tab 5; 0359 PFR File, Tab 4. Because the pleading was received after the

April 13, 2020 and June 19, 2020 initial decision finality dates, respectively, the

Clerk’s Office informed the appellant that his petitions for review were untimely

and that he must submit a “Motion to Accept Filing as Timely or to Waive Time

Limit” either by an affidavit or a statement signed under pena lty of perjury. 0151

PFR File, Tab 5 at 2-3; 0359 PFR File, Tab 4 at 2-3. Blank sample motions were

attached to both acknowledgment letters. 0151 PFR File, Tab 5 at 8-9; 0359 PFR

File, Tab 4 at 8-9. The acknowledgment letters further stated that the appellant’s

motions must be submitted on or before November 24, 2020. 0151 PFR File,

Tab 5 at 3; 0359 PFR File, Tab 4 at 2. The acknowledgment letters informed the

appellant that he must show good cause for the Board to waive his untimeliness,

and instructed him on how to do so. 0151 PFR File, Tab 5 at 2-3, 8; 0359 PFR

File, Tab 4 at 2, 8. The appellant did not file motions to accept his untimely

petitions for review or to waive the time limit.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision or, if the party filing the petition shows that

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

30 days after the party received the initial decision. Palermo v. Department of

the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Here, the initial

decisions stated that they would become final on April 13, 2020 and June 19,

2020, respectively, unless petitions for review were filed by those respective

dates. See 0151 ID at 2; 0359 ID at 3. The appellant makes no allegation that he

did not receive either of the initial decisions or that he received them more than

5 days after they were issued. The appellant’s petitions for review were sent to

the Atlanta Regional Office on October 1, 2020, and were referred to the Office

of the Clerk of the Board on October 21, 2020. See 0151 PFR File, Tab 5 at 1;

0359 PFR File, Tab 4 at 1. Therefore, the appellant’s petitions for review were

filed over 5 months late and over 3 months late, respectively.

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

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

5 C.F.R. §§ 1201.113(d), 1201.114(f). 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. To

determine whether a party has shown good cause, the Board will consider the

length of the delay, the reasonableness of his excuse and the party’s 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 limits or of unavoidable casualty or misfortune

which similarly shows a causal relationship to his inability to timely file his

petition. Id.

¶8 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 minimum 3-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

existence of circumstances beyond his control that affected his ability to file his

petitions. Further, despite being afforded the opportunity to do so, the appellant

has not offered any explanation for his delay in filing. Accordingly, we dismiss

the petitions for review as untimely filed. This is the final decision of the Merit

Systems Protection Board regarding the timeliness of these petitions for review.

The initial decisions remain the final decisions of the Board regarding the

withdrawal of the appeal challenging his indefinite suspension (0151 appeal) and

the appellant’s challenge to his placement on paid administrative leave

(0359 appeal). 3

In his petition for review the appellant also appears to argue that new and material

evidence exists that warrant reopening his appeal. See 0151 PFR File, Tab 1 at 4-6;

0359 PFR File, Tab 1 at 4-6. Although the appellant has not provided copies of the

documents he refers to with his petition for review, none of the docume nts he

references are new or material and so we have not considered them. See Okello v.

Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under

5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first

time with a petition for review absent a showing th at it is both new and material). The

document identified as “CNRC Suspension of Access to Classified Material dated 8 Oct

2019,” appears to refer to material already included in the record below, and thus is not

new. 0151 IAF, Tab 5 at 39-40; see Meier v. Department of the Interior, 3 M.S.P.R.

247, 256 (1980) (explaining that evidence that is already a part of the record is not

new). The document titled “A Report to the President and the Congress of the United

States by the U.S. Merit Systems Protection Board May 2015,” is dated to well before

NOTICE OF APPEAL RIGHTS 4

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 case s 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.

the close of record in these cases, and therefore is not “new.” See Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980) (explaining that, under 5 C.F.R. § 1201.115,

the Board generally will not consider evidence submitted for the first time on review

absent a showing that it was unavailable before the record was closed despite the

party’s due diligence). Finally, regarding the document titled “JG FOIA Email dated 25

Sep 2020,” which appears to be a 286-page document the appellant may have received

as a result of a Freedom of Information Act (FOIA) request, the appellant has not

explained how the document is material, and therefore it does not warrant a different

outcome in these appeals. 0151 PFR File, Tab 1 at 4-5; 0359 PFR File, Tab 1 at 4-5;

see Okello, 112 M.S.P.R. 563, ¶ 10. Specifically, the appellant has not explained how

the document has any bearing on the voluntariness of his withdrawal in the 0151 appeal,

or on the dispositive jurisdictional issue in the 0359 appeal.

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.

(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

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. 420 (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:

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 an y court of appeals of

competent jurisdiction. 5 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

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.