Opinion

Anthony Allen v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Apr 15, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY ALLEN, DOCKET NUMBER

Appellant, DC-0752-17-0276-I-1

DEPARTMENT OF HOUSING AND DATE: April 15, 2024

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony Allen , Suitland, Maryland, pro se.

Elan Cameron , Washington, D.C., for the agency.

Robert C. Kusnir , Atlanta, Georgia, 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

sustained his removal. For the reasons set forth below, the appellant’s petition

for review is DISMISSED as untimely filed without good cause shown, and his

request to reopen the appeal is DENIED. 5 C.F.R. §§ 1201.114(e), (g), 1201.118.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

In January 2017, the appellant, formerly employed as a Financial Systems

Analyst in the agency’s Office of the Chief Financial Officer, timely filed a

Board appeal challenging his removal for unacceptable conduct. Initial Appeal

File (IAF), Tab 1, Tab 9 at 40-44. The appellant withdrew his request for a

hearing during the proceedings below, and the administrative judge relied upon

the written record in issuing an initial decision sustaining the removal. IAF,

Tab 26 at 4, Tab 51, Initial Decision (ID). Specifically, the administrative judge

found that the agency proved its three specifications of unacceptable conduct and

that the appellant failed to prove his affirmative defenses of harmful procedural

error, laches, and disability discrimination. ID at 7-15.

In particular, the administrative judge considered the appellant’s argument

that the agency had committed harmful procedural error by removing him in

breach of an August 2014 settlement agreement resolving his complaint before

the Equal Employment Opportunity Commission (EEOC). ID at 10-12. The

agreement, in relevant part, required the agency to “[d]elete language in the

March 10, 2014 Notice of Placement on Administrative Leave that refers to

threatening and/or disturbing behavior[.]” IAF, Tab 11 at 12-16. The

administrative judge concluded that the appellant could not raise a breach of the

agreement before the Board and that, to the extent that the settlement agreement

created a “procedure” the agency was required to follow, the agency did not

breach the terms of the agreement because it did not require the agency to rescind

the March 10, 2014 notice or prevent the agency from taking disciplinary action

based on the emails giving rise to the March 10, 2014 notice. ID at 11-12.

Finally, the administrative judge found that the agency proved a nexus

between the charged conduct and the efficiency of the service, and that the

penalty of removal fell within tolerable limits of reasonableness. ID at 15-19.

The initial decision became final on June 21, 2017, when neither the appellant nor

the agency filed a petition for review. ID at 20.

On March 23, 2018, the appellant filed a petition for review requesting that

the Board reopen his appeal because the EEOC ruled in a December 27, 2017

decision that the agency breached the August 2014 settlement agreement and

wrongfully removed him. Petition for Review (PFR) File, Tab 1. The agency has

filed a response opposing the petition. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has not shown good cause to waive the deadline for filing a petition

for review.

The Board treats a request to reopen an initial decision that became final

when neither party petitioned for review as an untimely filed petition for review.

Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).

Therefore, we will initially treat the appellant’s submission as an untimely filed

petition for review.

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

of the issuance of the initial decision or, if the appellant shows that he received

the initial decision more than 5 days after it was issued, within 30 days after his

receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will waive this

time limit only upon a showing of good cause for the delay in filing. 5 C.F.R.

§§ 1201.12, 1201.114(g). To establish good cause for the untimely filing of a

petition, a party must show that he exercised due diligence or ordinary prudence

under the particular circumstances of the case. Shannon, 110 M.S.P.R. 365, ¶ 6.

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.

Id.

Here, the appellant has not alleged that he received the initial decision

more than 5 days after the date of its issuance. He filed the petition for review

9 months after the initial decision became final. ID at 20, PFR File, Tab 1. A

delay of 9 months is significant. 2 See, e.g., Summerset v. Department of the

Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (observing that a filing delay of 33 days is

significant); Greenberg v. Department of Justice, 91 M.S.P.R. 42, ¶ 6 (2002)

(stating that a filing delay of over 6 months is significant). The Office of the

Clerk of the Board informed the appellant that his petition for review was

untimely because it was not filed on or before June 21, 2017, and that the Board’s

regulations require an untimely filed petition to be accompanied by a motion to

accept the petition as timely filed and/or to waive the filing time limit for good

cause and an affidavit or sworn statement setting forth good cause for the delay in

filing. PFR File, Tab 2 at 1-2. The appellant did not file a response.

Upon review of the appellant’s petition, we find that the appellant has not

shown that he exercised due diligence in filing the petition. Although the

appellant has pursued his Board appeal pro se, he has not explained why he failed

to file a timely petition for review challenging the initial decision and has not

presented circumstances beyond his control that prevented him from promptly

requesting review of the initial decision when it was first issued. Additionally,

the appellant’s pursuit of enforcement of the settlement agreement before the

EEOC does not constitute good cause to waive the time limit. Cf. Shannon,

Prior to filing the instant petition for review, on January 20, 2018, the appellant filed a

pleading with the regional office alleging that the EEOC’s December 27, 2017 decision

ruling that the agency breached the settlement agreement warranted reversal of his

removal. Allen v. Department of Housing and Urban Development, MSPB Docket

No. DC-0752-18-0270-I-1, Initial Appeal File, Tab 1. The pleading was docketed as a

new appeal, but the assigned administrative judge issued an initial decision dismissing

the appeal for lack of jurisdiction and directing the appellant to file a request to reopen

with the full Board. Allen v. Department of Housing and Urban Development , MSPB

Docket No. DC-0752-18-0270-I-1, Initial Decision (Feb. 18, 2018). Even if we assess

the timeliness of the appellant’s request for review of the 2017 initial decision from his

January 2018 filing with the regional office, the delay of 7 months in seeking review of

the initial decision is still significant.

110 M.S.P.R. 365, ¶ 8 (stating that the withdrawal of an appeal to pursue the

claims in another forum does not establish good cause for an untimely filed

petition for review). Accordingly, the appellant has not established good cause to

waive the time limit for filing a petition for review, and we dismiss the petition as

untimely filed.

The appellant has not shown that unusual or extraordinary circumstances exist

that warrant reopening his appeal.

Further, we find no basis to reopen the appeal pursuant to 5 C.F.R.

§ 1201.118. In deciding whether to reopen a closed appeal, the Board will

balance the desirability of finality against the public interest in reaching the

correct result. Jennings v. Social Security Administration , 123 M.S.P.R. 577,

¶ 17 (2016). Thus, the Board will exercise its discretion to reopen an appeal only

in unusual or extraordinary circumstances, such as an intervening event that

directly bears on the result or the discovery of misrepresentation or fraud after the

issuance of the initial decision, and generally within a short period of time after

the decision becomes final. Id.; 5 C.F.R. § 1201.118. Such a short period of time

is usually measured in weeks, not years. Jennings, 123 M.S.P.R. 577, ¶ 17.

The appellant asserts that the EEOC’s December 27, 2017 decision found

that the agency breached the August 2014 settlement agreement and wrongfully

removed him, warranting reversal of the initial decision. PFR File, Tab 1 at 1-2.

We do not find, however, that the EEOC’s decision requires an outcome different

from that of the initial decision. In its December 27, 2017 decision, the EEOC

clarified its August 10, 2017 finding that the agency breached the provision of the

August 2014 settlement agreement requiring the agency to delete language in the

March 10, 2014 notice placing the appellant on administrative leave referring to

“threatening and/or disturbing behavior.” Victor S v. Department of Housing and

Urban Development, EEOC Petition No. 0420170029, 2017 WL 6941004, at *3

(Dec. 27, 2017); PFR File, Tab 1 at 7-8; see Victor S v. Department of Housing

and Urban Development, EEOC Appeal No. 0120171259, 2017 WL 3712729,

at *3 (Aug. 10, 2017). The EEOC ordered the agency to ensure that references to

“threatening and/or disturbing behavior” were removed from the March 10, 2014

notice and opined that such references should not be the basis for subsequent

adverse actions. Victor S, EEOC Petition No. 0420170029, at *3; PFR File,

Tab 1 at 8. In its decision, the EEOC specifically addressed a November 2, 2015

letter to the appellant, which it considered to have improperly contained such a

reference. Victor S, EEOC Petition No. 0420170029, at *3; PFR File, Tab 1 at 7.

Despite acknowledging that the appellant argued that the agency had improperly

removed him based on a claim of threatening behavior and that the record

contained a copy of the agency’s decision to remove the appellant, the EEOC did

not address the removal and did not order the agency to rescind the removal in its

decision. Victor S, EEOC Petition No. 0420170029, at *1; PFR File, Tab 1 at 6.

Thus, the EEOC’s decision did not require reversal of the removal.

Moreover, for the reasons set forth in the initial decision, we do not find

that the relevant provision of the settlement agreement requires reversal of the

removal. As discussed by the administrative judge, the settlement agreement only

required the agency to remove language from the March 10, 2014 notice

referencing “threatening and/or disturbing behavior.” ID at 11. The relevant

provision of the agreement did not require the agency to rescind the notice or

refrain from taking action based on the underlying emails that were referenced in

the March 10, 2014 notice. ID at 11-12. The provision agreed to by the

appellant, who was represented by counsel at the time of the agreement’s

execution, is not ambiguous. IAF, Tab 11 at 12-16. Accordingly, the

administrative judge properly found that the agreement did not prevent the agency

from taking action for the conduct underlying the March 10, 2014 notice, and that

the agency did not commit harmful procedural error in effecting the removal

action. ID at 11-12. As such, we conclude that the appellant has not presented

unusual or extraordinary circumstances that warrant reopening his appeal.

Accordingly, 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 removal 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 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).

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.

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. 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