Kelley Lynn-Pryor v. Department of Defense

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

KELLEY LYNN-PRYOR, DOCKET NUMBER Appellant, SF-0752-18-0639-I-1 v. DEPARTMENT OF DEFENSE, DATE: April 10, 2024 Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.

Douglas W. Frison , Esquire, APO, APO/FPO Pacific, 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 affirmed her removal. 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A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 The appellant filed the instant appeal challenging her removal, effective June 14, 2018, from her position as a teacher at an elementary school in the Department of Defense Education Activity, Pacific South District. Initial Appeal File (IAF), Tab 1 at 8-37, Tab 5 at 19, 42-45. The appellant raised several affirmative defenses. IAF, Tab 24 at 8-9. After a hearing, the administrative issued an initial decision that sustained all of the charges, found that the appellant did not prove any of her affirmative defenses, and affirmed the removal. Hearing Compact Diskettes; IAF, Tab 29, Initial Decision (ID). The initial decision contained a notice that the decision would become final on December 4, 2018, unless a petition for review was filed by that date. ID at 27.

The appellant requested a 30-day extension of time to file a petition for review, which the Office of the Clerk of the Board granted. Petition for Review (PFR) File, Tabs 1-2. The new deadline for filing the petition for review was January 3, 2019. PFR File, Tab 2 at 1. Due to the partial shutdown of the Federal government, the Board ceased operations from December 22, 2018, through January 25, 2019. PFR File, Tab 4 at 1. Pursuant to the Board’s December 21, 2018 press release, the deadline to file a petition for review was extended by the number of calendar days of the shutdown. Id. Thus, the appellant’s deadline for filing her petition for review was extended an additional days, to February 7, 2019.

However, the appellant did not file a petition for review until February 27, 2019. PFR File, Tab 3. The Clerk’s Office informed the appellant that her petition for review appeared to be untimely filed and afforded her 15 days to file a motion to accept the petition as timely or to waive the time limit for good cause.

PFR File, Tab 4 at 1. The appellant has not filed any such motion. The agency has requested that the petition for review be dismissed as untimely filed. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON 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 party filing the petition shows that the initial decision was received more than 5 days after it was issued, within days after the party 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). As the appellant and her representative are registered e-filers, IAF, Tabs 8, 16, they are deemed to have received the initial decision on the date of the electronic submission, here, October 30, 2018, IAF, Tab 30; 5 C.F.R. § 1201.14(m)(2) (2018). Even considering the appellant’s request for an extension that was granted by the Clerk’s Office and the extension that resulted from the partial shutdown of the Federal government, the appellant was required to file her petition for review on or before February 7, 2019. Thus, her February 27, 2019 petition for review was days late.

The Board will waive the filing deadline for a petition for review only upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 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 she exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and the party’s 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 petition. Id. Applying these factors, we find that the appellant has not shown good cause for the delay in filing her petition for review. The appellant was represented on review and the 20-day delay in this case was significant. See Reaves v. Department of Veterans Affairs, 92 M.S.P.R. 352, ¶ 8 (2002) (finding that an 18-day delay in filing a petition for review was significant). Although the Clerk’s Office afforded the appellant an opportunity to show good cause for the untimely filing, PFR File, Tab 4 at 1, she has not articulated any reason for the delay in filing her petition for review, and she failed to respond to notice on the untimeliness of her petition for review from the Clerk’s Office. See Bell v. Department of Homeland Security, 112 M.S.P.R. 33, ¶ 8 (2009) (dismissing a petition for review as untimely filed without a showing of good cause for the delay when the pro se appellant failed to respond to the Clerk’s Office’s notice or otherwise demonstrate good cause for the delay). Moreover, the appellant’s petition for review, which challenges the administrative judge’s findings and conclusions in the initial decision, does not establish good cause for her untimely filing. PFR File, Tab 3; see Wright v. Department of the Treasury, 113 M.S.P.R. 124, ¶ 7 (2010) (finding that the appellant’s assertions regarding the merits of a case do not establish good cause for an untimely filed petition for review). Thus, the appellant has failed to show that she exercised due diligence or ordinary prudence in this case that would warrant a finding of good cause for the delay in filing her petition for review.

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 removal appeal.

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 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. 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 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 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 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 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 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.

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.

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.