UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NOEL A. MARQUIS,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

AT-0752-20-0220-I-1

DATE: July 24, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Noel A. Marquis, Groveland, Florida, pro se.

Jessica V. Johnson, Esquire, and Owen Keegan, Esquire, Atlanta, Georgia,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal for failure to prosecute. For the reasons set forth

1 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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

The appellant filed this appeal of the agency’s removal action with the

Board. Initial Appeal File (IAF), Tab 1 at 1-5. As discussed in the initial

decision, the appellant failed to appear for an initial status conference and to

respond to the administrative judge’s order regarding the affirmative defense of

disability discrimination. IAF, Tab 11, Initial Decision (ID) at 2. Based on the

written record, the administrative judge issued an initial decision dismissing the

appeal for failure to prosecute. ID at 1, 3.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to show good cause for the 1-day delay in filing his

petition for review.

Generally, a petition for review must be filed within 35 days after the date

of issuance of the initial decision or, if the petitioner shows that he received the

initial decision more than 5 days after the date of issuance, within 30 days after

the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the

administrative judge informed the appellant that the initial decision would

become the Board’s final decision on April 14, 2020, unless a petition for review

was filed by that date. ID at 3. The administrative judge further informed the

appellant that, if he proved that he received the initial decision more than 5 days

after the date of issuance, he could file a petition for review within 30 days after

the date of receipt. ID at 4. The record reflects that the appellant received the

initial decision on March 10, 2020, the date of issuance. 2 ID at 1; IAF, Tab 12;

2 The certificate of service reflects that, on March 10, 2020, the initial decision was

served electronically by email on the appellant, who had registered as an e-filer.

IAF, Tab 1 at 2, Tab 12; see 5 C.F.R. § 1201.14(j)(1) (2020) (providing for the

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see 5 C.F.R. § 1201.14(m)(2) (2020) (providing that Board documents served

electronically on registered e-filers are deemed received on the date of electronic

submission). The appellant does not argue otherwise. PFR File, Tab 1 at 3.

Thus, the deadline for filing a petition for review was April 14, 2020, the 35th

day after the date of issuance of the initial decision. See 5 C.F.R. § 1201.114(e).

The appellant filed a petition for review on April 15, 2020, one day past the

filing deadline.3 PFR File, Tab 1. In relevant part, the appellant’s brief petition

for review states, “I have already filed one plea to re-evaluate the case since the

judge did not complete his due diligence. The judge stated I did not meet or

adhere to the timeline and information requested which is not the case.” Id. at 3.

In an acknowledgment letter, the Office of the Clerk of the Board notified the

appellant that his petition for review was untimely filed and that he could file a

motion with the Board to accept his filing as timely and/or to waive the time limit

for good cause. PFR File, Tab 2 at 1-2. The letter further informed the appellant

that such a motion must include a signed statement (made under penalty of

perjury) or an affidavit, and that the motion must be sent by May 1, 2020. Id.

at 2. The appellant has not filed any argument or evidence in response to the

Office of the Clerk of the Board’s notice regarding the timeliness of his petition

for review.

The Board may waive the time limit for filing a petition for review upon a

showing of good cause for the untimely filing. 5 C.F.R. §§ 1201.12, 1201.114(g).

To establish good cause, the appellant must show that he exercised due diligence

or ordinary prudence under the particular circumstances of the case. Alonzo v.

Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether

an appellant has shown good cause, the Board will consider the length of the

electronic service of Board documents on e-filers).

3 The pleading that the Office of the Clerk of the Board docketed as the appellant’s

petition for review reflects that the date of electronic submission was April 15, 2020.

PFR File, Tab 1, Tab 2 at 1 n.*; see 5 C.F.R. §§ 1201.4(l) (providing that the date of

filing by e-filing is the date of electronic submission), 1201.14(m)(1) (2020) (same).

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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).

Although the appellant’s pro se status and the minimal length of his 1-day

filing delay weigh in favor of finding good cause, we find that they are

outweighed by the remaining Moorman factors. See, e.g., Ellison v. U.S. Postal

Service, 45 M.S.P.R. 244, 245 & n.4, 246 (1990) (finding no good cause for the

pro se appellant’s 2-day delay in filing a corrected petition for review when,

among other things, he was unable to find a job, he was unable to find counsel,

and there was a pending foreclosure on his home). The appellant’s arguments

challenging the dismissal of his appeal for failure to prosecute are not relevant to

the timeliness of his petition for review. PFR File, Tab 1 at 3; see Marasco v.

U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995) (finding that the appellant’s

arguments on the merits were not relevant to the untimeliness of his petition for

review). Further, despite receiving notice of the filing deadline in the initial

decision and an opportunity to respond on the timeliness issue on review, the

appellant has failed to address the timeliness of his petition for review. PFR File,

Tab 2 at 1-2; ID at 3-4; see Cabarloc v. Department of Veterans Affairs,

112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding that the pro se appellant failed to

demonstrate diligence or ordinary prudence that would excuse his 10-day filing

delay when he failed to respond to the Clerk’s notice regarding timeliness). In

addition, the appellant has not presented any evidence of the existence of

circumstances beyond his control or of unavoidable casualty or misfortune that

prevented him from filing a timely petition for review. Therefore, under the

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particular circumstances of the case, we find that the appellant has failed to

establish good cause for his untimely filing.

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 failure to prosecute the removal appeal.

NOTICE OF APPEAL RIGHTS4

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

4

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.

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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

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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 

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(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. 

5 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

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. 

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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.

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