The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOCELYN STANLEY, DOCKET NUMBER
Appellant, PH-0752-18-0431-I-1
v.
SOCIAL SECURITY DATE: April 5, 2024
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas J. Gagliardo , Baltimore, Maryland, for the appellant.
Jessica Craig , Baltimore, Maryland, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed without good cause shown or,
alternatively, for lack of jurisdiction. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that we need not reach the jurisdictional issue because the
appeal was untimely, we AFFIRM the initial decision.
BACKGROUND
The agency issued a January 23, 2018 notice in which it proposed removing
the appellant from her Benefit Authorizer position for absence without leave
(AWOL). Initial Appeal File (IAF), Tab 7 at 18-29. The parties subsequently
entered into a “Last Chance Agreement” (LCA). Id. at 31-35. Pursuant to that
agreement, the agency agreed to hold the removal decision in abeyance for
24 months. Id. at 32. In exchange, the appellant agreed to improve her overall
conduct and to comply with agency procedures for requesting and obtaining
approved leave. Id. at 32-33. She further indicated she understood that any
further misconduct, as determined by management, would result in her removal.
Id. at 32. The appellant also explicitly waived her appeal rights. Id. at 32, 34.
On July 9, 2018, the agency notified the appellant that she had been AWOL on
18 different occasions, violating the LCA, and it was implementing her removal
effective immediately. IAF, Tab 13 at 4-8.
The appellant filed an appeal in which she argued that the agency could not
prove the misconduct which allegedly violated the LCA. IAF, Tab 1 at 4.
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The administrative judge issued an order setting forth the appellant’s burden to
establish jurisdiction over an appeal involving an LCA waiving future appeal
rights. IAF, Tab 8 at 1-2. In response, the appellant asserted that 5 of the
18 instances of AWOL were not a basis for discipline and could not constitute
violations of the LCA. IAF, Tab 10 at 5. As to the remaining allegations, she
argued that the agency was required to provide proof of the alleged violations and
had not done so. Id.
The administrative judge also issued an order setting forth the appellant’s
burden regarding the timeliness of the appeal. IAF, Tab 9 at 1-3. In response,
the appellant asserted that, as a result of a presidential executive order, her union
representative had been deprived of office space, telephones, and bulletin boards,
which the agency had previously supplied. IAF, Tab 12 at 4.
Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction or as untimely filed without good cause shown.
IAF, Tab 14, Initial Decision (ID) at 1, 5. Specifically, the administrative judge
found that the appeal was untimely filed by 5 days and the appellant’s argument
that the untimeliness of her appeal was caused by disruption of union activities
following an executive order did not constitute good cause. ID at 3-4. She also
found that the appellant had only disputed 5 of the 18 instances of AWOL but did
not dispute that she was AWOL on the other 13 instances. ID at 4-5.
The administrative judge found that this assertion was insufficient to show that
she complied with the LCA; thus, the Board lacked jurisdiction. ID at 1, 4-5.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has responded to the petition; however, we have
not considered its response because it was untimely filed without good cause
shown. 2 PFR File, Tab 4.
2
The agency’s response to the appellant’s petition for review was due on or before
February 11, 2019. PFR File, Tab 2 at 1, Tab 5 at 1; see 5 C.F.R. § 1201.114(e)
(requiring responses to petitions for review be filed within 25 days of service of the
petition for review). The agency did not file its response until February 28, 2019.
4
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant challenges the administrative judge’s findings on
both the timeliness and jurisdictional issues. PFR File, Tab 1 at 2-3.
She reiterates her argument that she demonstrated good cause for the untimely
filing of her appeal due to the presidential executive order and that the agency did
not submit proof that she had violated the LCA. Id.
We affirm the administrative judge’s finding that the appeal was untimely filed.
An appeal must be filed within 30 days after the effective date of the action
being appealed, or 30 days after the appellant’s receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). The appellant bears the burden of
proving by preponderant evidence that she timely filed her appeal, or that there
was a good reason for the delay. 5 C.F.R. §§ 1201.22(c), 1201.56(b)(2)(i)(B).
Here, the appellant received the removal decision on July 9, 2018, and her
removal was effective that same day. IAF, Tab 13 at 4-8. Thus, to be timely, the
appellant was required to file her appeal by August 8, 2018. However, her appeal
was filed on August 13, 2018, 5 days late. IAF, Tab 1.
To establish good cause for an untimely appeal, a party must show that she
exercised due diligence or ordinary prudence under the particular circumstances
of the case. 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
PFR File, Tab 4. Although the Office of the Clerk of the Board offered the agency the
opportunity to show good cause for the untimely filing, it has not responded. PFR File,
Tab 5. Under these circumstances, we find that the agency has failed to demonstrate
good cause for the untimeliness of its response. See 5 C.F.R. § 1201.114(g) (setting
forth the requirements for a party to show good cause for its untimely filing).
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petition. 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).
On review, the appellant reasserts her argument that her untimely appeal
was attributable to the presidential executive order allegedly impairing her
communications with her union representative. PFR File, Tab 1 at 2. However,
as the administrative judge correctly found, an appellant is responsible for the
actions of her chosen representative. Sofio v. Internal Revenue Service,
7 M.S.P.R. 667, 670 (1981). Moreover, the administrative judge found that the
appellant did not demonstrate that she exercised due diligence or ordinary
prudence under the circumstances and that any impact the presidential order may
have had did not justify the appellant’s inaction during the entire appeal period.
ID at 3-4. We agree.
In making this determination, we have considered that it does not appear
that the agency notified the appellant of any appeal rights that she might have of
her removal. IAF, Tab 13 at 4-8. The Board ordinarily will excuse untimeliness
in filing an appeal if an agency should have given notice of a right of appeal but
did not, so long as the appellant “acted promptly and within the allowable time
limits once he was aware of the basis of his claim.” Gordy v. Merit Systems
Protection Board, 736 F.2d 1505, 1508 (Fed. Cir. 1984). In Clark v. U.S. Postal
Service, 989 F.2d 1164, 1169-70 (Fed. Cir. 1993), the court held that an agency is
required to provide such notice to an employee being removed pursuant to an
LCA that includes a waiver of Board appeal rights only “if and when the
employee puts the agency on notice that he or she contests the agency’s assertion
of a breach of the agreement.” In this case, we find no indication in the record
that the appellant put the agency on notice that she was contesting the agency’s
assertion of a breach of the LCA before filing the instant appeal. Thus, the
agency had no corresponding obligation to give her notice of Board appeal rights,
and its failure to do so does not excuse the untimely filing of her appeal.
Id. at 1170.
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The initial decision states that the appeal is alternatively being dismissed
for lack of jurisdiction. ID at 1. Because we agree with the administrative
judge’s finding that the appeal was untimely, we do not reach the jurisdictional
issue. See Popham v. U.S. Postal Service, 50 M.S.P.R. 193, 196-97 (1991)
(finding that the Board need not dismiss an appeal for lack of jurisdiction if the
record shows that the appeal should be dismissed as untimely).
NOTICE OF APPEAL RIGHTS 3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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.
7
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,
8
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
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(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:
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.
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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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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.