UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN MARK LILLY, DOCKET NUMBER
Appellant, DC-1221-14-0659-W-1
v.
DEPARTMENT OF HEALTH AND DATE: March 31, 2015
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
John Mark Lilly, Lakeland, Florida, pro se.
Danielle Duckett, Esquire, and Rebecca Wulffen, Esquire, Washington,
D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action for alleged whistleblower reprisal. For
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
2
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).
BACKGROUND
¶2 The agency removed the appellant, effective January 7, 2012, for failing to
maintain a condition of employment and conduct unbecoming. Initial Appeal File
(IAF), Tab 8 at 8-14. The appellant filed the appeal, alleging that his removal
was taken in reprisal for whistleblowing. IAF, Tab 1 at 4-5.
¶3 The administrative judge issued an initial decision, dated September 30,
2014, finding that because the appellant did not timely appeal his removal, his
claims would be adjudicated as an individual right of action (IRA) appeal only.
IAF, Tab 27, Initial Decision (ID) at 2-3. The administrative judge denied the
appellant’s request for corrective action. ID at 1, 11. The appellant filed the
petition for review on November 8, 2014. Petition for Review (PFR) File, Tab 1.
The agency has responded to the appellant’s petition for review. PFR File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is untimely.
¶4 A petition for review must be filed within 35 days after the issuance of the
initial decision or, if the petitioner shows that the initial decision was received
more than 5 days after the date of issuance, within 30 days after the date the
petitioner received the initial decision. 2 5 C.F.R. § 1201.114(e). Documents
served electronically on e-filers are deemed received on the date of electronic
2
On petition for review, the appellant argues that the Board does not have “the
authority to prohibit the [a]ppellant from seeking a bounty” from the Securities and
Exchange Commission. PFR File, Tab 6 at 3. The Board’s jurisdiction is not plenary;
it is lim ited to those matters over wh ich it has been given jurisdiction by law, rule, or
regu lation. Maddox v. Merit Systems Protection Board, 759 F.2d 9, 10 (Fed. Cir.
1985). The appellant has pointed to no statute or regu lation to support his assertion.
Therefore, we are without jurisdiction to address this argument.
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submission. 5 C.F.R. § 1201.14(m)(2). The appellant, who was an e-filer,
indicates that he received the initial decision on the day it was issued. PFR File,
Tab 2 at 3; IAF, Tab 1 at 2. The appellant was advised in the initial decision that
the deadline for filing a petition for review was November 4, 2014. ID at 11. He
filed the petition for review 4 days late. See PFR File, Tab 1.
¶5 The Board may waive its filing deadline upon a showing of good cause.
Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 5 (2007). To establish
good cause for an untimely filing, a party must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case. Id.
To determine if 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).
¶6 The Clerk of the Board informed the appellant that his petition for review
appeared to be untimely filed and afforded him an opportunity to show good
cause for the apparently untimely filing. PFR File, Tab 5 at 1-2. Although the
appellant has responded to the Clerk’s notice, he does not address the issue of
timeliness. PFR File, Tab 6 at 3. The Board has declined to find good cause for a
waiver of the filing time limit where, as here, the initial decision clearly notified
the appellant of the correct time limit for filing a petition for review and the
appellant has provided no excuse for his delay. See Smith, 105 M.S.P.R. 433, ¶ 6.
While the appellant is appearing pro se, he has failed to provide any excuse for
his 4-day delay. See id.; see also Beckley v. U.S. Postal Service, 43 M.S.P.R.
397, 399 (1990) (in the interest of judicial efficiency and fairness, the Board will
4
not waive its timeliness requirement in the absence of good cause shown,
regardless of how minimal the delay in filing).
¶7 On review, the appellant argues that the agency’s representative “has
repeatedly engaged in unwarranted and spiteful behavior in her refusal to even
consider settlement options.” PFR File, Tab 6 at 3. However, the appellant does
not contend that the purported actions of the agency’s representative below
prevented him from timely filing the petition for review. See Morales v.
Department of Justice, 56 M.S.P.R. 123, 125 (1992) (finding that the appellant
failed to show good cause for waiver of the time limit because she did not argue
that the actions of the parties’ representatives prevented her from timely filing her
petition for review). Therefore, we decline to consider this argument.
¶8 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 appellant’s request for corrective action for alleged
whistleblower reprisal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
5
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.