Opinion

Pink Wright v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Nov 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PINK WRIGHT, III, DOCKET NUMBER

Appellant, SF-0752-21-0116-I-1

DEPARTMENT OF VETERANS DATE: November 27, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Pink Wright, III , Victorville, California, pro se.

Julianne Ference , Esquire, North Las Vegas, Nevada, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his involuntary resignation 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 In a March 5, 2021 initial decision, the administrative judge dismissed the

appeal for lack of jurisdiction. Initial Appeal File (IAF), Tab 13, Initial Decision

(ID). The initial decision informed the appellant that the decision would become

final on April 9, 2021, unless he filed a petition for review by that date. ID at 12.

¶3 The appellant filed a petition for review on April 28, 2021. Petition for

Review (PFR) File, Tab 1. He asserted therein that he had received the initial

decision on March 5, 2021. 2 Id. at 3; ID at 1; IAF, Tab 14. As to why his

petition for review was untimely filed, the appellant claimed in his sworn petition

for review that he thought he had to file with the Office of Special Counsel (OSC)

and had done so. 3 PFR File, Tab 1 at 4. He asserted that he “was refused” and

advised that he “can ask for a judicial review.” Id. He acknowledges that he

“continued” with the “wrong office” and requested a hearing. Id. He

subsequently filed a supplement to his petition for review which appears to

address the merits of his appeal, not the timeliness issue. PFR File, Tab 2 at 3.

The agency did not reply to the appellant’s petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 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

initial decision was issued on March 5, 2021, and served on the appellant that

same day. ID at 1; IAF, Tab 14; PFR File, Tab 1 at 3. Thus, the appellant was

required to file any petition for review no later than April 9, 2021. ID at 12. The

The appellant registered as an 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).

The appellant did not provide any documentation of his alleged filing with OSC, or of

OSC’s alleged response.

appellant’s petition for review of the initial decision was filed on April 28, 2021.

PFR File, Tab 1. Therefore, the appellant’s petition for review was untimely filed

by 19 days.

¶5 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, 1201.113(d), 1201.114(g). The party who submits an untimely

petition for review has the burden of establishing good cause by showing that he

exercised due diligence or ordinary prudence under the particular circumstances

of the case. Palermo, 120 M.S.P.R. 594, ¶ 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 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

limits or of unavoidable casualty or misfortune which similarly shows a causal

relationship to his inability to timely file his 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). The Board may decline to excuse a

pro se appellant’s minimal delay when he fails to establish that he acted with due

diligence. See, e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R.

396, ¶¶ 7-8 (2002).

¶6 The appellant received notice of how to establish good cause for his

untimely filing. PFR File, Tab 1 at 3. As described above, the appellant contends

that he filed with OSC 4 rather than the Board. Id. at 4. Generally, the pursuit of

If the appellant believes that he has engaged in protected whistleblowing activity and

has been the victim of reprisal for that activity, he may file an individual right of action

(IRA) appeal. The Board has jurisdiction over an IRA appeal if the appellant exhausts

his administrative remedies before OSC and makes nonfrivolous allegations that (1) he

made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected

activity as described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the

disclosure or protected activity was a contributing factor in the agency’s decision to

take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v.

appeal rights in another forum does not constitute good cause for the waiver of

Board time limits. Scott v. U.S. Postal Service, 80 M.S.P.R. 581, ¶ 6 (1999). The

Board also generally holds that the failure to follow explicit filing instructions

does not constitute good cause for the ensuing delay. King v. Department of

Justice, 81 M.S.P.R. 435, ¶ 5 (1999); see Sanford v. Department of Defense,

61 M.S.P.R. 207, 209 (1994). The initial decision provided the appellant with

explicit instructions for filing a petition for review including the time limit for

doing so and the office with which to file. ID at 12-13. The appellant did not

follow those instructions.

¶7 Moreover, it is not clear from the appellant’s assertions on review whether

he mistakenly filed a document with OSC that he intended to be a petition for

review of the Board’s initial decision in this appeal or intended to file a new

whistleblowing reprisal complaint. On review, the appellant did not include his

purported OSC filing, and thus, we are unable to determine his intent. PFR File,

Tab 1 at 4. Moreover, the length of the appellant’s delay, 19 days, is not

minimal. See Garcia v. Office of Personnel Management, 95 M.S.P.R. 597, ¶ 7

(2004) (a filing delay of 19 days is not minimal). Under these circumstances, we

do not believe that the appellant has exercised the diligence required to establish

good cause for his delay in filing his petition for review.

¶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 alleged involuntary resignation.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The Board makes no finding

in this decision regarding the jurisdictional or merits issues regarding any such appeal

by the appellant.

NOTICE OF APPEAL RIGHTS 5

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.

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:

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.

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 any court of appeals of

competent jurisdiction. 6 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