Opinion

Michael Johnson v. Department of State

Court: Merit Systems Protection Board
Filed: May 10, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL T. JOHNSON, DOCKET NUMBER

Appellant, DC-0752-18-0791-I-1

DEPARTMENT OF STATE, DATE: May 10, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael T. Johnson , Washington, D.C., pro se.

Trent Buatte , Esquire, Marianne Perciaccante , and Camille V’Estres ,

Washington, D.C., for the agency.

Moustapha Goumballa , Rockville, 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 his constructive removal 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Effective August 20, 2018, the agency indefinitely suspended the appellant

from his Information Technology Specialist position. Initial Appeal File (IAF),

Tab 12 at 197. He retired from Federal civilian service effective August 21,

2018. IAF, Tab 12 at 191, Tab 14 at 8. Thereafter, he filed a Board appeal

raising an involuntary retirement claim, and he requested a hearing. IAF, Tab 1

at 1-5, Tab 10 at 7. On December 17, 2018, the administrative judge issued an

initial decision dismissing the appeal for lack of jurisdiction without holding the

requested hearing. IAF, Tab 19, Initial Decision (ID) at 1 & n.1, 11-12.

On August 30, 2019, the appellant filed a two-sentence petition for review

arguing that his case was “adversely affected” by the Government shutdown and

that he never received any information concerning his appeal rights or how the

shutdown or the Board’s lack of a quorum affected those rights. Petition for

Review (PFR) File, Tab 1 at 3. The agency filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to show good cause for the 6-month delay in filing his

petition for review.

Generally, a petition for review must be filed within 35 days after the

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

initial decision more than 5 days after the date of issuance, within 30 days after

the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the

administrative judge informed the appellant that the initial decision would

become the Board’s final decision on January 21, 2019, unless a petition for

review was filed by that date. ID at 12. She further informed him that, if he

received the initial decision more than 5 days after the date of issuance, he could

file a petition for review within 30 days after the date of receipt. Id.

The certificate of service reflects that, on December 17, 2018, the initial

decision was served electronically by email on the appellant, who had registered

as an e-filer. IAF, Tab 1 at 2, Tab 20; see 5 C.F.R. § 1201.14(e)(1) (2019)

(providing that registration as an e-filer constitutes consent to accept electronic

service of documents issued by the Board). Thus, we find that the appellant

received the initial decision on the same date it was issued on December 17,

2018. ID at 1; IAF, Tab 20; see 5 C.F.R. § 1201.14(m)(2) (2019) (providing that

Board documents served electronically on registered e-filers are deemed received

on the date of electronic submission). Because the 35th day after December 17,

2018, fell on Monday, January 21, 2019, which was a Federal holiday, 2 the

original deadline for filing a petition for review was Tuesday, January 22, 2019.

See 5 C.F.R. §§ 1201.23, 1201.114(e).

However, as explained in the Office of the Clerk of the Board’s

September 4, 2019 letter acknowledging the appellant’s petition for review, the

Board ceased operations from December 22, 2018, through January 25, 2019, due

to the partial shutdown of the Federal Government. PFR File, Tab 2 at 1-2. The

Board issued a press release on December 21, 2018, notifying the public that all

filing and processing deadlines would be extended by the number

of calendar days that the Board was shut down. Press Release,

U.S. Merit Systems Protection Board, Status of the U.S. Merit Systems

Protection Board During a Partial Government Shutdown (Dec. 21, 2018), https://

www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During_a_Part

ial_Government_Shutdown_1580906.pdf (last visited May 9, 2024). Because the

Board was shut down for 35 calendar days, the original January 22, 2019 deadline

for filing a petition for review was extended by 35 days to February 26, 2019.

Therefore, we find that the appellant’s August 30, 2019 petition for review was

untimely filed by over 6 months. 3 PFR File, Tab 1.

We take official notice that January 21, 2019 was a Federal holiday. See 5 C.F.R.

§ 1201.64 (providing that the Board may take official notice of matters of common

knowledge or matters that can be verified).

The Office of the Clerk of the Board docketed the appellant’s pleading that was

electronically filed with the Board’s Washington Regional Office on August 30, 2019,

as a petition for review. PFR File, Tab 1, Tab 2 at 1. Thus, we find that the filing date

of the appellant’s petition for review is the August 30, 2019 date of electronic

The Board may waive the time limit for filing a petition for review upon a

showing of good cause for the untimely filing. 5 C.F.R. § 1201.114(g). To

establish good cause, the appellant must show that he 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 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. 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).

As discussed above, the appellant argued in his brief petition for review

that his case was “adversely affected” by the Government shutdown “for over

two months and counting.” PFR File, Tab 1 at 3. He further claimed that he

never received any information concerning his appeal rights or how the shutdown

or lack of a quorum affected those rights. Id. In its acknowledgment letter, the

Office of the Clerk of the Board informed the appellant that his petition for

review appeared to be untimely filed and that he could file a motion (including a

statement signed under penalty of perjury or an affidavit) with the Board to

accept his filing as timely or to waive the time limit for good cause. PFR File,

Tab 2 at 2. The appellant has not filed any additional argument or evidence

concerning the timeliness of his petition for review.

Although the appellant’s pro se status weighs in favor of finding good

cause, we find that this factor is outweighed by the remaining Moorman factors.

See Allen v. Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004)

submission. See 5 C.F.R. § 1201.4(l) (providing that the date of filing by e-filing is the

date of electronic submission).

(finding that, although the appellant’s pro se status was a factor weighing in his

favor, it was insufficient to excuse his unexplained, 14-day filing delay). In

particular, we find that the length of the appellant’s 6-month filing delay is

significant. See Summerset v. Department of the Navy, 100 M.S.P.R. 292, ¶ 7

(2005) (finding a 33-day filing delay significant). We further find unreasonable

the appellant’s arguments that he was adversely affected by the Government

shutdown and that he did not receive information about his appeal rights or how

the shutdown or lack of a quorum affected those rights. PFR File, Tab 1 at 3.

The initial decision contained clear notice of his appeal rights, the relevant time

limits, and how the Board’s lack of a quorum rendered the Board unable to issue

decisions on petitions for review until a quorum was restored. ID at 12-19. The

initial decision further explained that the lack of a quorum did not serve to extend

the time limit for filing a petition for review. ID at 13. Moreover, as discussed

above, the Board issued a press release on December 21, 2018, notifying the

public that all filing and processing deadlines would be extended by the number

of calendar days that the Board was shut down. Press Release, U.S. Merit

Systems Protection Board, Status of the U.S. Merit Systems Protection Board

During a Partial Government Shutdown (Dec. 21, 2018),

https://www.mspb.gov/publicaffairs/press_releases/Status_of_the_MSPB_During

_a_Partial_Government_Shutdown_1580906.pdf (last visited May 9, 2024).

Considering the significant length of the filing delay, that the appellant does not

dispute receiving the initial decision, and that the press release was available on

the Board’s website, we find that he has failed to show that he exercised due

diligence or ordinary prudence in pursuing his appeal rights. 4 In addition, the

appellant has not presented any evidence of circumstances beyond his control or

As explained above, the original deadline for filing a petition for review was

January 22, 2019. Although the initial decision incorrectly stated that the initial

decision would become final on January 21, 2019, unless a petition for review was filed

by that date, we find that this relatively minor error does not provide a reasonable

excuse for the appellant’s 6-month untimely filing. ID at 12.

of unavoidable casualty or misfortune that prevented him from timely filing a

petition for review. Therefore, under the particular circumstances of the case, we

find that the appellant has failed to establish good cause for his untimely filing.

See, e.g., Carrasquillo v. Department of Agriculture, 98 M.S.P.R. 83, ¶¶ 2, 5-6

(2004) (dismissing the appellant’s petition for review as untimely filed by 2

weeks in an involuntary retirement appeal).

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 Board’s lack of jurisdiction over the appellant’s constructive

removal appeal.

NOTICE OF APPEAL RIGHTS

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:

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 . 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.