                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JARRELL FALAS NOWLIN,                           DOCKET NUMBER
                  Appellant,                         PH-0752-12-0272-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 14, 2016
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Jarrell Falas Nowlin, Loxahatchee, Florida, pro se.

           Jessica Trombetta and Nicole Colucci, Fort George G. Meade, Maryland,
             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
     sustained his removal. For the reasons set forth below, the appellant’s petition
     for review is DISMISSED as untimely filed without good cause shown for the
     delay. 5 C.F.R. § 1201.114(e), (g).


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                          BACKGROUND
¶2         Prior to his removal, the appellant was employed as a GS-13 Executive
     Staff Officer with the National Security Agency (NSA), within the Department of
     Defense. Initial Appeal File (IAF), Tab 8, Subtab B. By statute, NSA employees
     are required to maintain a security clearance as a condition for employment. See
     50 U.S.C. §§ 831-835.    On January 4, 2010, the agency’s Office of Personnel
     Security (OPS) issued a Decision Memorandum revoking the appellant’s security
     clearance and proposing to remove him for failure to meet a mandatory condition
     for employment. IAF, Tab 8, Subtab I. The Decision Memorandum set forth the
     reasons for the decision, which included, among other factors, the appellant’s
     recent criminal convictions. Id. The Chief of Security Information Management,
     OPS, notified the appellant of the revocation decision and proposed removal
     action, and provided him a copy of the Decision Memorandum and supporting
     documentation. Id., Subtab H. The appellant requested review by the Chief of
     the Adjudications Division, OPS, but the revocation was sustained on review.
     Id., Subtabs F-G. The appellant then exercised his right to an in-person final
     review by the agency’s Access Appeals Panel. Id., Subtab E. By letter dated
     August 10, 2010, the Access Appeals Panel notified the appellant of its final
     decision to sustain the revocation of the appellant’s security clearance.       Id.,
     Subtab D. Subsequently, by memorandum dated August 16, 2010, the agency
     informed the appellant that, as a result of the Panel’s decision, he no longer met a
     mandatory condition of NSA employment, and would therefore be removed,
     effective August 30, 2010. Id., Subtab B.
¶3         This appeal followed. IAF, Tab 1. On July 24, 2012, the administrative
     judge issued an initial decision sustaining the removal action.      IAF, Tab 41,
     Initial Decision. The administrative judge advised the appellant that her decision
     would become final on August 28, 2010, unless a petition for review was filed by
     that date. Id. at 13.
                                                                                      3

¶4        The appellant filed a petition for review on November 30, 2015.       Petition
     for Review (PFR) File, Tab 1. Pursuant to the Clerk of the Board’s instructions,
     the appellant filed a motion for the Board to accept the filing as timely and/or
     waive or set aside the time limit. PFR File, Tabs 2-3. In support of his motion,
     he explained that, during the week before he filed his petition for review, he
     obtained a copy of a background investigation report showing that his criminal
     convictions in the state of Maryland had been expunged or overturned. PFR File,
     Tab 3. He attached a copy of the background investigation report, but did not
     provide copies of any relevant court documents. Id. The agency has responded in
     opposition to the appellant’s motion, and the appellant has filed a reply to the
     agency’s response. PFR File, Tabs 4, 6.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶5        The Board’s regulations provide that a petition for review must be filed
     within 35 days of the issuance of the initial decision or, if the appellant shows
     that the initial decision was received 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(d). Here, the appellant has not alleged or established that he received
     the initial decision more than 5 days after its issuance on July 24, 2012. PFR
     File, Tab 1.   Thus, the appellant’s petition for review, which was filed on
     November 30, 2015, was untimely filed by more than 3 years.
¶6        The Board will excuse the late filing of a petition for review on a showing
     of good cause for the delay. 5 C.F.R. § 1201.114(f). 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. 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 his excuse and his showing of due diligence, whether he is
     proceeding pro se, and whether he has presented evidence of the existence of
                                                                                          4

     circumstances beyond his control that affected his ability to comply with the time
     limits or of unavoidable casualty or misfortune that 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, Moorman v. Merit Systems
     Protection Board, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶7         The discovery of new evidence may constitute good cause for waiver of the
     filing deadline if the appellant shows that the evidence was not readily available
     before the record below closed, and that it is of sufficient weight to warrant an
     outcome different from that of the initial decision. Wyeroski v. Department of
     Transportation, 106 M.S.P.R. 7, ¶ 11, aff’d, 253 F. App’x 950 (2007). However,
     even assuming that the appellant’s new evidence was not previously available
     despite his due diligence, it is not material to the outcome of this appeal because
     his removal was based on the revocation of his security clearance, not his
     criminal record. IAF, Tab 8, Subtab B. While the revocation decision appears to
     have been based in part on the appellant’s criminal convictions, which he claims
     to have since been overturned or expunged, the Board lacks authority to review
     the merits of a security clearance determination. Department of the Navy v. Egan,
     484 U.S. 518, 530-31 (1988). Consequently, the appellant’s new evidence is not
     of sufficient weight to warrant an outcome different from the initial decision.
¶8         The appellant’s remaining arguments concern the merits of his case, and do
     not establish good cause for the untimely filing. See Wright v. Department of the
     Treasury, 113 M.S.P.R. 124, ¶ 8 (2010). Furthermore, while we are mindful of
     the appellant’s pro se status, the 3-year filing delay in this case is significant. See
     Wyeroski, 106 M.S.P.R. 7, ¶ 11.         Under these circumstances, we find the
     appellant has not shown good cause for the untimely filing of his petition for
     review. Id.
¶9         Accordingly, we dismiss the petition for review as untimely filed. This is
     the final decision of the Merit Systems Protection Board regarding the timeliness
                                                                                5

of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s removal.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
request 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 your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. district court.
                                                                                 6

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court
no later than 30 calendar days after your receipt of this order. If you have a
representative in this case, and your representative receives this order before you
do, then you must file with the district court no later than 30 calendar days after
receipt by your representative. If you choose to file, be very careful to file on
time.   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. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
