Opinion

William Jolley v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Jan 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WILLIAM B. JOLLEY, DOCKET NUMBERS

Appellant, AT-4324-18-0576-I-2

AT-4342-19-0041-I-1

DEPARTMENT OF HOUSING AND DATE: January 22, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

William B. Jolley , Brunswick, Georgia, pro se.

Robert Andrew Zayac , Esquire, and Carlos Quijada , Esquire, Atlanta,

Georgia, 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

found that the appellant did not establish a Uniformed Services Employment and

Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.

§§ 4301-4335) (USERRA) violation with respect to a series of nonselections . 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 appellant filed his first appeal in June 2018, alleging that the agency

had committed a USERRA violation with respect to his nonselection.

Jolley v. Department of Housing and Urban Development, MSPB Docket No.

AT-4324-18-0576-I-1, Initial Appeal File (0576 IAF), Tab 1. The administrative

judge dismissed the appeal without prejudice after the appellant raised Lucia v.

Securities and Exchange Commission, 138 S. Ct. 2044 (2018), and the judge’s

authority to adjudicate the matter. 0576 IAF, Tab 4, Initial Decision. The

appellant challenged this dismissal without prejudice before the U.S. Court of

Appeals for the Federal Circuit, but the court dismissed for lack of jurisdiction.

Jolley v. Merit Systems Protection Board, No. 2019-1022 (Fed. Cir. Dec. 28,

2018). In the meantime, his appeal was redocketed. Jolley v. Department of

Housing and Urban Development, MSPB Docket No. AT-4324-18-0576-I-2,

Refiled Appeal File, Tabs 1-2. Around that same time, the appellant submitted a

filing that was construed as a second USERRA appeal and docketed accordingly.

Jolley v. Department of Housing and Urban Development, MSPB Docket No.

AT-4324-19-0041-I-1, Initial Appeal File (0041 IAF), Tab 1.

¶3 The administrative judge developed the records, joined the appeals, and

issued a single decision. E.g., 0041 IAF, Tab 58, Initial Decision (0041 ID). The

December 21, 2022 initial decision considered three alleged nonselections but

found that the appellant did not meet his burden of proving that the agency

violated USERRA regarding any. Id. at 4-7. It explained that the deadline for

filing a petition for review was January 25, 2023. Id. at 8.

¶4 The appellant has filed a petition for review. Jolley v. Department of

Housing and Urban Development, MSPB Docket No. AT-4324-18-0576-I-2,

Petition for Review File, Tab 1; Jolley v. Department of Housing and Urban

Development, MSPB Docket No. AT-4324-19-0041-I-1, Petition for Review

(0041 PFR) File, Tab 1. However, he did not do so until May 9, 2023, more than

100 days after the deadline for doing so. 0041 PFR File, Tab 1. The appellant’s

petition summarily states that the Board has violated the law, and it does not

address the petition’s timeliness. Id. at 2.

¶5 The Clerk of the Board notified the appellant that his petition appeared

untimely and provided instructions on how to file a motion regarding either its

timeliness or good cause for its untimeliness. E.g., 0041 PFR File, Tab 2.

The appellant did not respond to the Clerk’s notice. The agency has not

responded to the appellant’s petition.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 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. Palermo v. Department of the

Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will

waive the time limit for filing a petition for review only upon a showing of good

cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.

§§ 1201.113(d), 1201.114(g).

¶7 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.

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 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).

¶8 In circumstances such as this, where an appellant does not respond to the

Clerk’s timeliness notice and has not otherwise explained the untimeliness of

their petition for review, the Board has declined to find good cause for even a

1-day filing delay. Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 6

(2007). The Board has explained that, even in the case of a pro se appellant, the

failure to respond to the Clerk’s notice does not reflect due diligence. Id.

¶9 Here, where the appellant did not file his petition until more than 100 days

after the deadline for doing so, without explanation, we discern no reason to

conclude otherwise. The initial decision for his joined appeals informed the

appellant that the deadline for filing a petition for review was January 25, 2023.

0041 ID at 8. The appellant filed his petition on May 9, 2023. 0041 PFR File,

Tab 1. The petition is silent about this untimeliness, and the appellant did not

respond to the Clerk’s notice about the same.

¶10 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 nonselections and alleged USERRA violations.

NOTICE OF APPEAL RIGHTS 2

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

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.

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:

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. 3 The court of appeals must receive your petition for

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

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