Davis v. Dep't of Justice

Docket NumberAT-1221-16-0393-W-1
Decision Date30 June 2023
CourtMerit Systems Protection Board


Anthony Davis, Columbia, South Carolina, pro se.

Marie Clarke, Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Vice Chairman Raymond A. Limon, Member

¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. The appellant's petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.§ 1201.114(e), (g). However, we VACATE the initial decision and DISMISS the appeal for lack of jurisdiction for the reasons set forth in this Final Order.


¶2 At all times relevant to the present appeal, the appellant was a Correctional Officer with the agency's Bureau of Prisons. Initial Appeal File (IAF), Tab 1 at 1. The appellant filed an appeal via e-Appeal Online on March 13, 2016 alleging "nepotism" at the Federal correctional facility. Id. at 3, 5. Specifically, he alleged that the agency named an individual as the Supervisory Correctional Specialist in the same department as his wife and that individual was now his wife's "immediate supervisor." Id. at 5. The appellant alleged that such nepotism violated unspecified Federal regulations and the terms of the governing master collective bargaining agreement. Id. He claimed that agency officials were "going to promote" the individual's wife to a vacant Procurement Property Specialist position to "correct their mistake," a position for which the appellant applied. Id. The appellant stated that he filed a whistleblower reprisal complaint with the Office of Special Counsel (OSC) on September 11, 2015, but that he did not receive written notice that OSC made a decision or terminated its investigation. Id. at 4.

¶3 The appellant filed 45 pages of supporting documentation including excerpts from a collective bargaining agreement. IAF, Tab 2. He also submitted memoranda and intra-agency email correspondence between August 2015 and February 2016, regarding the alleged nepotism concerns of the individual's appointment to the Supervisory Correctional Specialist position in that individual's wife's supervisory chain of command. Id. The documentation included a February 29, 2016 memorandum regarding the chain of command for the correctional facility referencing an OSC case number. Id. at 1. However, the appellant provided neither a copy of any complaint he submitted to OSC nor a statement of whether he provided the 45 pages he filed with the Board to OSC with his complaint.

¶4 The administrative judge issued an order explaining the Board's jurisdictional limitations in individual right of action (IRA) appeals and instructed the appellant to meet his jurisdictional burden. IAF, Tab 4. The appellant did not respond to the order. The administrative judge issued a decision on April 5, 2016, dismissing the appeal for lack of jurisdiction, without holding the requested hearing. IAF, Tab 7, Initial Decision (ID). He explained that the Board generally lacks jurisdiction over a nonselection appeal such as the appellant's apparent claim that his anticipated nonselection for a certain position was "proximately caused by nepotism." ID at 2. To the extent that the appellant's claim constituted an IRA appeal of whistleblower reprisal, the administrative judge found that the appellant failed to establish that he exhausted remedies for corrective action with OSC. ID at 2-3.

¶5 The appellant filed a petition for review on or about June 30, 2017, more than 1 year after the initial decision was issued. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board issued a notice to the appellant informing him that his petition was untimely filed because it was not filed on or before May 10, 2016. PFR File, Tab 2 at 1. The Office of the Clerk of the Board instructed the appellant how to file a motion to accept the petition as timely or to waive the time limit for good cause. Id. at 2. The appellant did not file any such motion. The agency filed a response opposing the petition for review as untimely filed. PFR File, Tab 5.


The appellant has not established good cause for his untimely filed petition for review.

¶6 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. 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. 5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Sanders v. Department of the Treasury, 88 M.S.P.R. 370, ¶ 5 (2001). To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of the party's 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).

¶7 As a preliminary matter, the appellant has not filed a motion regarding the timeliness of his petition for review, despite receiving notice from the Office of the Clerk of the Board regarding the necessary requirements and the opportunity to file such a motion. PFR File, Tab 2; see 5 C.F.R. § 1201.114(g). Further, we find that his assertions in his petition for review fail to establish that his petition was timely filed or that good cause exists for the filing delay.

¶8 The appellant argues that he did not receive the April 5, 2016 initial decision until June 8, 2017, and he submits a photocopy of an envelope from the Board's Atlanta Regional Office postmarked June 5, 2017, which purportedly contained a paper copy of the initial decision. PFR File, Tab 1 at 2-3. He asserts that his email address has not changed during the course of his appeal, but he argues that the agency "erased" and "tampered with" his emails. Id. at 2. The appellant's registration as an e-filer, IAF, Tab 1 at 2, constituted consent to accept electronic service of pleadings filed by other registered e-filers and documents issued by the Board, see 5 C.F.R. § 1201.14(e)(1). The Board's e-Appeal Online logs and the certificate of service accompanying the initial decision indicate that a notification with a link to the e-Appeal Online Repository was sent to the appellant's email address of record on April 5, 2016, and he received the document electronically on that date. IAF, Tab 8; see 5 C.F.R. § 1201.14(j)(1), (m)(2). As an e-filer, the appellant was responsible for ensuring that filters did not block the Board's emails and for monitoring case activity in the Repository to ensure that he had received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3). If he was concerned about the security of his Federal email account, he could have changed his method of service to regular mail or changed his email address of record. See 5 C.F.R. § 1201.14(e)(4), (6) (permitting withdrawal of registration as an e-filer and outlining the process for changing the email address of record). Thus, we find that the appellant timely received notice of the initial decision on April 5, 2016, and he filed his petition for review more than 1 year late. His petition for review does not articulate or establish good cause for this delay. Accordingly, we dismiss the petition for review as untimely filed with no good cause shown.

Although the administrative judge erroneously found that the appellant had not filed a complaint with OSC, the Board lacks jurisdiction over this matter as an IRA appeal for other reasons.

¶9 Although we have dismissed the appellant's petition for review as untimely, the issue of the Board's jurisdiction is always before the Board and may be raised sua sponte by the Board at any time during a Board proceeding. E.g., Francis v. Department of the Air Force, 120 M.S.P.R. 138, ¶ 8 (2013). As the administrative judge correctly recognized, a nonselection is not an appealable adverse action pursuant to 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512, 7513(d); Prewitt v. Merit Systems Protection Board, 133 F.3d 885, 886 (Fed. Cir. 1998). However, the Board may address a nonselection in some other contexts. Becker v. Department of Veterans Affairs, 107 M.S.P.R. 327, ¶ 5 (2007). Most relevant to this appeal, the Board may address a nonselection in an IRA appeal. Id. To establish the Board's jurisdiction over an IRA appeal, an appellant must have exhausted his administrative remedies before OSC and made nonfrivolous allegations[2] of the following: (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 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)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221(a), (e)(1); Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v....

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