The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. TAYLOR, SR., DOCKET NUMBER
Appellant, DA-0752-14-0106-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 6, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David L. Taylor, Sr., Slidell, Louisiana, pro se.
Traci G. Gann, Esquire, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown for the
delay. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 Effective May 20, 1997, the agency removed the appellant from his position
of city letter carrier for the Postal Service in Shreveport, Louisiana, for
unsatisfactory attendance/absence without leave (AWOL). Initial Appeal File
(IAF), Tab 2 at 103. On December 23, 2013, the administrative judge issued an
initial decision, based on the parties’ written submissions, dismissing the appeal
as untimely. IAF, Tab 6, Initial Decision (ID) at 1. The appellant received the
initial decision on the day that it was issued. Petition for Review (PFR) File,
Tab 1 at 3. The initial decision included notice to the appellant of his right to
petition for review but also informed him that the record would close and the
initial decision would become final if he failed to file his petition for review by
January 27, 2014. ID at 4-7. However, the appellant again failed to file on time,
as he did not submit the instant petition for review until January 31, 2014, or
4 days past the filing deadline. PFR File, Tab 1.
¶3 In filing his online petition for review, the appellant was notified of his
burden to establish good cause for the untimely filing. PFR File, Tab 1 at 3. The
appellant attributed his untimeliness not to “the time line [being] overlooked” but
to his inability to obtain representation and “the sudden natural disaster recently
to our area, and having to resort to emergency shelter.” 2 Id. at 5. The agency has
2
It is unclear whether the appellant’s petition explains the delay for his untimely initial
appeal or petition for review. PFR File, Tab 1 at 5. We will construe his arguments as
explanation for his untimely petition for review. See generally Jordan v. Office of
Personnel Management, 108 M.S.P.R. 119, ¶ 19 (2008) (pro se pleadings are to be
construed liberally). Otherwise, if the arguments related to the untimely initial appeal,
the Board would not consider them because the appellant did not raise them below or
provide reason for his failure to do so. See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (The Board normally will not consider an argument raised
for the first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.).
3
requested that the petition be dismissed because the appellant was 16 years late in
filing his initial appeal and 4 days late in filing his petition for review. PFR File,
Tab 3 at 5-7. The agency further noted that the appellant has “a history of
untimely filings,” as his equal employment opportunity (EEO) complaint was
dismissed as untimely because he waited 14 months to contact an EEO counselor
and an appeal to the Court of Appeals for the Fifth Circuit was dismissed for want
of prosecution, also due to the untimeliness of his filings. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or within 30 days after receipt, if the decision
was received more than 5 days after the date of issuance. 5 C.F.R. § 1201.114(e).
Here, the appellant indicates that he received the initial decision on the same day
of its issuance. PFR File, Tab 1 at 3; ID at 1. Accordingly, the appellant had
until January 27, 2014, the 35th day following the issuance of the
December 23, 2013 initial decision, to file a petition for review. ID at 4.
Because the appellant did not file until January 31, 2014, PFR File, Tab 1, we
find that his petition for review was untimely by 4 days.
¶5 The Board will waive its filing deadline only upon a showing of good cause,
regardless of how minimal the delay. 5 C.F.R. §§ 1201.22(c), 1201.114(f); Lands
v. Department of the Air Force, 95 M.S.P.R. 593, ¶¶ 5-7 (2004) (filing even 1-day
late requires a showing of good cause); Davis v. Department of the Navy,
52 M.S.P.R. 450, 453 (1992) (same). 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 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 A lack of representation or an appellant’s inability to obtain representation
fails to establish good cause to excuse an untimely petition for review. McCoy v.
U.S. Postal Service, 112 M.S.P.R. 256, ¶ 8 (2009), aff’d, 360 F. App’x 132 (Fed.
Cir. 2010). Thus, the appellant’s argument that he was unable to obtain counsel
does not constitute good cause for his 4-day delay in filing his petition.
¶7 Furthermore, in the absence of specific evidence relating the occurrence of
the natural disaster to the delay, a general claim that a natural disaster was
responsible for an untimely filing does not constitute good cause for a delayed
filing. See Duran-Arcelay v. Office of Personnel Management, 70 M.S.P.R. 13,
16 (1996) (generally asserting that a hurricane was the cause for the appellant’s
untimely filing of his petition for review was insufficient to show good cause
where he failed to state with any specificity how it caused the delay); Corpus v.
Office of Personnel Management, 65 M.S.P.R. 315, 316-17 (1994) (asserting
recurrence of a weekly typhoon and loss of electricity was insufficient to show
good cause for an untimely petition for review where the appellant failed to
specify when the typhoon occurred or how these conditions affected her ability to
timely file her petition). As a result, the appellant’s bare reference to “a sudden
natural disaster,” PFR File, Tab 1 at 5, is insufficient to establish good cause for
his untimely filing.
¶8 Finally, especially given the appellant’s familiarity with filing deadlines
and his history of untimely filings, we find that he failed to act with the care and
diligence of a reasonably prudent person in his position. See Bonefas v.
Department of Transportation, 12 M.S.P.R. 65, 67 (1982) (even a lack of
experience with the process is not a valid excuse for an untimely appeal, where
5
the appellant has been properly notified of his appeal rights and filing deadlines).
Consequently, we find that the appellant’s delay in filing his petition was the
result of his own inaction or negligence.
¶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
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 United States 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
6
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 United States
district court. 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. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.