Ebonyazizi Sylla v. Department of Homeland Security

UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

EBONYAZIZI K. SYLLA, DOCKET NUMBER

Appellant, AT-0752-23-0542-I-4 v.

DEPARTMENT OF HOMELAND DATE: August 26, 2026 SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Ebonyazizi K. Sylla , Auburn Hills, Michigan, pro se.

Lauren J. Johnson , San Diego, California, for the agency.

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

The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal without prejudice to refiling. 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, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We also FORWARD the appeal to the regional office for immediate refiling.

On June 29, 2023, the appellant filed a Board appeal challenging her removal. Sylla v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0542-I-1, Initial Appeal File (IAF), Tab 1. The administrative judge issued an acknowledgment order and a timeliness order, noting that the appeal, which was filed by regular mail, appeared to be filed 530 days late. IAF, Tabs 2-3. The administrative judge ordered the appellant to provide evidence and argument showing the appeal was timely filed or that good cause existed for the delay. IAF, Tab 3 at 1-4. Not long thereafter, the appellant filed a motion to extend the time period for discovery due to personal circumstances, and the administrative issued an initial decision dismissing the appeal without prejudice to refiling at a later date. IAF, Tabs 8-9. The appeal was refiled and then dismissed without prejudice to refiling for similar reasons two more times. See Sylla v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0542- I-2, Appeal File, Tab 8; Sylla v. Department of Homeland Security, MSPB Docket No. AT-0752-23-0542-I-3, Appeal File, Tab 15.

On September 30, 2024, the appeal was automatically refiled for a fourth time. Sylla v. Department of Homeland Security , MSPB Docket No. AT-0752-23- 0542-I-4, Appeal File (I-4 AF), Tab 1. The appellant subsequently filed a motion requesting that the Board “cease violating and comply with 5 C.F.R. § 1201.4(l) date of filing.” 2 I-4 AF, Tab 7 at 2. The appellant alleged that in one of the administrative judge’s orders, the administrative judge had wrongly identified the filing date of the appellant’s submission, and that the appellant was therefore concerned that the administrative judge had incorrectly calculated the filing date of her initial appeal. Id. at 3-8. She requested that the Board “audit” dates of filing to ensure compliance with 5 C.F.R. § 1201.4(l). Id. at 10. The administrative judge denied the appellant’s motion. I -4 AF, Tab 13 at 2. Around this time, the appellant also filed a “motion to reschedule status conference and additional evidence supporting motion to dismiss appeal without prejudice,” requesting that an upcoming status conference be canceled due to personal circumstances and that dismissal without prejudice be granted until March 2025. I-4 AF, Tab 11 at 2. The appellant then filed a motion for certification of an interlocutory appeal regarding the administrative judge’s “violations of 5 C.F.R. § 1201.4(l) date of filing.” I-4 AF, Tab 15 at 1. In her motion, the appellant disputed the administrative judge’s denial of her motion to cease violating, restated that she believes the correct filing date for her initial appeal is June 24, 2023, instead of June 29, 2023, and emphasized that the administrative judge’s “compliance” with of 5 C.F.R. § 1201.4(l) was “critical” since the agency was seeking to dismiss her appeal as untimely. Id. at 1-5.

The administrative judge issued an order denying the appellant’s request for an interlocutory appeal. I-4 AF, Tab 19. The administrative judge concluded that the appellant’s request did not present an issue of such importance to the proceeding that required the Board’s immediate attention, denying the request under 5 C.F.R. § 1201.91. Id. The same day, the administrative judge also issued an initial decision dismissing the appeal without prejudice, to be automatically refiled by the Board on April 14, 2025. I-4 AF, Tab 20, Initial Decision (ID) at 1-3. The administrative judge noted the appellant’s request and found that a dismissal without prejudice to a later refiling would serve the interests of fairness to the appellant and administrative efficiency. ID at 2-3.

The appellant has filed a petition for review of the initial decision and so the case has not yet been refiled for a fifth time. Petition for Review (PFR) File, Tab 1. On review, the appellant does not challenge the administrative judge’s dismissal of her appeal without prejudice. Instead, she raises the issue of the administrative judge’s denial of her motion for certification of an interlocutory appeal pursuant to 5 C.F.R. § 1201.93(b). Id. at 3. The appellant argues that the administrative judge continues to erroneously state the filing date of her initial appeal as June 29, 2023, instead of June 24, 2023, and that this is a violation of the Board’s regulations at 5 C.F.R. § 1201.4(l). Id. at 5-6. She asks the Board to grant her the relief requested in her motion asking the Board to “cease violating and comply with 5 C.F.R. § 1201.4(l) date of filing.” Id. at 6; see also I-4 AF, Tab 7 at 10. The agency has filed a response. PFR File, Tab 3. Although the appellant filed several requests for an extension of time, she did not file a reply. PFR File, Tabs 4-9.

An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. 5 C.F.R. § 1201.91. An administrative judge may permit an interlocutory appeal if she determines that the issue presented is of such importance to the proceeding that it requires the Board’s immediate attention. 5 C.F.R. § 1201.91. An administrative judge will certify a ruling for review only if the record shows that the ruling involves an important question of law or policy about which there is substantial ground for difference of opinion, and an immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public. 5 C.F.R. § 1201.92. If an administrative judge denies a motion for an interlocutory appeal, the party may raise the matter in a petition for review. 5 C.F.R. § 1201.93(b).

Here, the appellant has properly raised the administrative judge’s denial of her motion for an interlocutory appeal in her petition for review. 5 C.F.R. § 1201.93(b). However, the appellant has not shown that the administrative judge abused her discretion in denying the motion for interlocutory appeal because it did not meet the criteria for certification.

Contrary to the appellant’s assertions, the administrative judge has not yet made a ruling on the timeliness of her removal appeal. The administrative judge has yet to issue a decision containing findings of fact and conclusions of law upon all the material issues of fact and law presented on the record and the reasons or bases for those findings and conclusions. 5 C.F.R. § 1201.111(b). Instead, the administrative judge properly notified the appellant that there is a question about the timeliness of her appeal and has continued to keep the record “open on the issue of timeliness, as the appellant previously indicated she has additional evidence and/or argument she desires to submit.” I-4 AF, Tab 2 at 1. Though the administrative judge has recited the facts of the case as she understands them so far, the administrative judge is in fact waiting for the appellant’s response on the timeliness issue. Id. And whether the appellant’s removal appeal is timely is an issue that is correctly addressed in the first instance by the administrative judge. See, e.g., Hendrickson v. Department of Labor, 85 M.S.P.R. 334 (2000) (considering a petition for review of an initial decision that dismissed a removal appeal as untimely filed and holding that the appellant established that good cause existed for the delayed filing); Blue v. U.S. Postal Service, 65 M.S.P.R. 370 (1994), aff’d, 65 F.3d 188 (Fed. Cir. 1995) (Table) (considering a petition for review of an initial decision that dismissed a removal appeal as untimely filed and holding that the appellant failed to establish that the appeal was timely filed or that good cause existed for the delay).

Because the appellant has expressed a clear intention to pursue adjudication of her appeal, we FORWARD the appeal to the regional office for immediate refiling.

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).

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 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.