UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

UNYQUE MILES,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DA-3443-21-0349-I-1

DATE: August 26, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Unyque Miles, Duncanville, Texas, pro se.

Beverlei E. Colston, Esquire, Irving, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed for lack of jurisdiction her appeal challenging her nonselection for a 

promotion. For the reasons set forth below, the appellant’s petition for review is 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

DISMISSED as untimely filed without good cause shown. 5 C.F.R. 

§ 1201.114(e), (g). 

BACKGROUND

¶2 On July 26, 2021, the appellant filed an appeal challenging the agency’s 

failure to select her for a Mission Support Specialist position at the Dallas 

Field Office in Dallas, Texas. Initial Appeal File (IAF), Tab 1. On 

September 15, 2021, the administrative judge issued an initial decision on the 

written record, dismissing the appeal for lack of jurisdiction, finding that it did 

not fall within any recognized exception to the general rule that the Board lacks 

jurisdiction over nonselection decisions. IAF, Tab 13, Initial Decision (ID) at 1, 

3-4. Specifically, she determined that the appellant failed to exhaust her 

administrative remedies with the Office of Special Counsel (OSC) as to her claim 

of whistleblower reprisal and failed to nonfrivolously allege that her nonselection 

was the product of discrimination based on uniformed service . ID at 3-4. 

The initial decision included instructions that it would become final on 

October 20, 2021, unless a petition for review was filed by that date. ID at 4.

¶3 On January 9, 2022, the appellant electronically filed a pleading titled 

“Response to Request for Reopening” in the aforementioned appeal. 2 Petition for 

 

2 We need not forward the appellant’s allegation, submitted for the first time on review,

that she filed a complaint with OSC. Petition for Review (PFR) File, Tab 1 at 4, 14. 

Generally, we will consider an allegation such as this on review because it implicates

the Board’s jurisdiction, an issue that is always before the Board and may be raised by 

any party or sua sponte by the Board at any time during a Board proceeding. See Lovoy

v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003). However, 

the appellant has already filed a separate individual right of action (IRA) appeal, Miles 

v. Department of Homeland Security, MSPB Docket No. DA-1221-22-0112-W-1, Initial 

Appeal File (0112 IAF), submitting the same documents from the instant petition for 

review, PFR File, Tab 1 at 11-62. On April 21, 2022, the administrative judge issued 

an initial decision in the IRA appeal, dismissing her claim for lack of jurisdiction. 0112 

IAF, Tab 21, Initial Decision (0112 ID) at 1, 9-11. The initial decision became final 

on May 26, 2022, when neither party filed a petition for review. 0112 ID at 11. Thus, 
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Review (PFR) File, Tab 1. Because it was unclear whether the appellant intended 

her pleading as a petition for review of the initial decision in this case, the Office 

of the Clerk of the Board sought clarification of the intent of the appellant’s 

filing. PFR File, Tab 2 at 1 n.*. She clarified via email on January 10, 2022, that 

she intended her pleading as a petition for review of the September 15, 2021, 

initial decision. Id. Consequently, the Clerk’s office issued an acknowledgement 

order, acknowledging the appellant’s January 9, 2022, filing as a petition for 

review of the initial decision in this case. PFR File, Tab 2.

¶4 Because the pleading was received after the October 20, 2021 initial 

decision finality date, the Clerk’s office informed the appellant that her petition 

for review was untimely and that she must submit a “Motion to Accept Filing as 

Timely or to Waive Time Limit” either by an affidavit or a statement signed 

under penalty of perjury. Id. at 1-2. A blank sample motion was attached to the 

acknowledgment letter. Id. at 7-8. The acknowledgment letter further stated that 

the appellant’s motion must be submitted on or before January 26, 2022. Id. at 2. 

The appellant has not filed a motion to accept her untimely petition for review or 

to waive the time limit. The agency has not responded to the petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board’s regulations provide that a petition for review must be filed 

within 35 days after the date of 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the 

Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the administrative judge issued the 

initial decision on September 15, 2021, and correctly informed the appellant that 

 

we decline to forward this allegation for docketing and adjudication to the Dallas 

Regional Office.
4

she was required to file any petition for review no later than October 20, 2021. 

ID at 1, 4. The appellant filed her petition for review on January 9, 2022. 

PFR File, Tab 2 at 8, Tab 3 at 1. As such, we find that the petition for review is 

untimely filed by 2 months and 20 days.

¶6 The Board may waive its timeliness regulations only upon a showing of 

good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. 

§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review 

has the burden of establishing good cause 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; 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 delay, the reasonableness of her 

excuse and her 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. Palermo, 120 M.S.P.R. 694, ¶ 4; 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).

¶7 We conclude that the appellant has failed to show good cause for a waiver 

of the filing deadline. Even considering the appellant’s pro se status, the 

appellant’s over 2 month delay is not minimal. See Wright v. Department of the 

Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is not 

minimal); Allen v. Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 

(2004) (declining to excuse a pro se appellant’s 14-day, unexplained delay in 

filing a petition for review); Crozier v. Department of Transportation, 

93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing is not minimal). 

Additionally, the appellant has not presented evidence of due diligence or the 
5

existence of circumstances beyond her control that affected her ability to file her 

petition. Further, despite being afforded the opportunity to do so, the appellant 

has not offered any explanation for her delay in filing.

¶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 nonselection appeal.

NOTICE OF APPEAL RIGHTS3

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. 

 

3

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.
6

(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 
7

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. ____ , 137 S. Ct. 1975 (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: 
8

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 

 

4

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. 
9

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board