Raleigh Sellers v. Department of the Navy

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

RALEIGH C. SELLERS, DOCKET NUMBER

Appellant, AT-315H-25-0399-I-1 v.

DEPARTMENT OF THE NAVY, DATE: April 14, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Raleigh C. Sellers , Chipley, Florida, pro se.

David Kendrick , Esquire, Panama City, Florida, for the agency.

BEFORE Henry J. Kerner, Vice Chairman James J. Woodruff II, Member FINAL ORDER

The appellant has filed a petition for review of the initial decision, which dismissed this probationary termination appeal as untimely filed without good cause. 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 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 and AFFIRM the initial decision as MODIFIED to find that dismissal of this appeal is warranted on both timeliness and jurisdictional grounds.

The agency hired the appellant to the competitive service position of Scientist in July 2021, subject to a 2-year probationary period. Initial Appeal File (IAF), Tab 1 at 5. In January 2022, the agency terminated him, citing his failure to follow instructions. IAF, Tab 7 at 7-9. The termination notice explained the appellant’s limited Board appeal rights along with the associated 30 -day filing deadline. The appellant filed this appeal of his probationary termination several years later, in February 2025. IAF, Tab 1 at 9; see 5 C.F.R. § 1201.4(l).

The administrative judge issued two orders. The first explained the appellant’s jurisdictional burden and instructed the appellant to meet that burden. IAF, Tab 2. The second explained the standards for timeliness and instructed the appellant to present good cause for the untimeliness of his appeal. IAF, Tab 3. After the appellant responded, belatedly, IAF, Tab 9, the administrative judge dismissed the appeal, IAF, Tab 9, Tab 11, Initial Decision (ID). He found that the appellant did not establish good cause for the untimeliness of his appeal. ID at 1-6.

The appellant has filed a petition for review. Within, he argues that the Board should waive the timeliness requirement for this appeal due to the impropriety of his termination, which he characterizes as unlawful, retaliatory, and discriminatory. Petition for Review (PFR) File, Tab 1 at 4 -7.

We begin by affirming the administrative judge’s determination that the appellant did not establish good cause for the untimeliness of his appeal, for all the reasons described in the initial decision. ID at 2-6. We understand that the appellant has come up with new theories about the propriety of his probationary termination—theories that he came up with based in part on events that have occurred in the years since that termination. PFR File, Tab 1 at 4-7. However, like the administrative judge, we do not find that this constitutes good cause for the roughly 3-year delay in the appellant’s filing of this appeal.

We next find that this appeal must also be dismissed because the appellant has not established Board jurisdiction. See generally Beaudette v. Department of the Treasury, 100 M.S.P.R. 353, ¶ 11 (2005) (finding that when the Board’s lack of jurisdiction is clear, the appeal should be dismissed based on jurisdiction rather than timeliness). For purposes of the appellant’s probationary termination, in 2022, the Board’s jurisdiction is limited. He could bring an appeal of his probationary termination if he was discriminated against because of his marital status or partisan political affiliation or if the agency action was based in whole or in part on issues that arose preappointment and the required procedures were not followed. Henderson v. Department of the Treasury, 114 M.S.P.R. 149, ¶ 9 (2010). 2 Although he was advised of these jurisdictional requirements, IAF, Tab 2 at 2-3, the appellant did not make corresponding nonfrivolous allegations entitling him to a hearing on the issue, IAF, Tab 9 at 5-6. Instead, he presented other allegations that are of little consequence to his jurisdictional burden. For example, the appellant asserts that he was terminated on the spot, without advanced notice, he was terminated without consideration or accommodation of his physical disability, and he was terminated for opposing his supervisor’s instructions. Id. Although we have considered these allegations, they do not suffice for purposes of meeting his jurisdictional burden. 3 Thus, the appellant’s appeal of his probationary termination must be dismissed.

NOTICE OF APPEAL RIGHTS 4

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 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

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.

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.