The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT HENDERSON, DOCKET NUMBER
Appellant, SF-0752-14-0474-I-1
v.
DEPARTMENT OF THE NAVY, DATE: October 31, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Robert Henderson, Morongo Valley, California, pro se.
Michael Larsen, Twentynine Palms, California, 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. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 Effective February 28, 2014, the agency removed the appellant from his
position as a Training Instructor based on five charges. Initial Appeal File (IAF),
Tab 6 at 14. On April 14, 2014, the appellant filed an appeal with the Board.
IAF, Tab 1. The administrative judge issued an order informing the appellant that
his appeal appeared to be untimely. IAF, Tab 9. The administrative judge
ordered the appellant to submit evidence and argument showing that his appeal
was timely or that good cause existed for the delay in filing his appeal. Id. at 3.
The appellant did not respond, and the agency filed a motion to dismiss the
appeal. IAF, Tab 5. The administrative judge granted the agency’s motion and
dismissed the appeal as untimely filed without a showing of good cause. IAF,
Tab 10, Initial Decision (ID) at 6-7. The appellant filed a petition for review of
the initial decision, 2 and the agency filed a response in opposition to his petition.
Petition for Review (PFR) File, Tabs 1, 4.
¶3 Generally, an appeal of an agency action must be filed no later than 30 days
after the effective date of the action being appealed or 30 days after the date of
2
The appellant filed an additional pleading, which the Office of the Clerk of the Board
rejected for procedural reasons. See IAF, Tab 3.
3
the receipt of the agency’s decision, whichever is later. See 5 C.F.R.
§ 1201.22(b). The appellant bears the burden of proof on the issue of timeliness.
5 C.F.R. § 1201.56(a)(2). On review, the appellant does not dispute the
administrative judge’s findings that he received the agency’s decision letter on
February 12, 2014, and his removal became effective on February 28, 2014. See
ID at 2. Accordingly, under the Board’s regulations, the appellant had to file his
removal appeal on or before March 31, 2014, which was the first business day
after the 30th day from the effective date of his removal. See 5 C.F.R.
§§ 1201.22(b), 1201.23. The appellant, however, did not file his appeal with the
Board until April 14, 2014, which was 14 days after the filing deadline. IAF,
Tab 1.
¶4 The Board generally will dismiss an untimely claim unless the appellant
establishes good cause for the delay. See 5 C.F.R. § 1201.22(c). To establish
good cause, 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 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 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 unfavorable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his claim. 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). It is within the administrative judge’s discretion to determine whether
the appellant has shown good cause for his untimely filing. See Alonzo,
4 M.S.P.R. at 184.
¶5 On review, the appellant challenges the merits of his removal without
addressing the timeliness issue. PFR File, Tab 1. The record reflects that the
agency informed the appellant of his right to file an appeal with the Board
4
following the effective date of his removal; however, as previously noted, the
appellant filed his appeal 14 days late. IAF, Tab 1, Tab 6 at 41. Moreover, the
appellant failed to respond to the administrative judge’s timeliness order, which
afforded him the opportunity to justify his late filing, or to the agency’s motion to
dismiss his appeal based, in part, on untimeliness. IAF, Tab 5 at 4, Tab 9.
¶6 In his petition for review, the appellant has not explained his failure to
respond to the timeliness order below, and he offers no evidence or argument
showing good cause for his untimely filing. As a result, we discern no basis to
disturb the initial decision dismissing this appeal as untimely filed. See, e.g.,
Goode v. Department of Health & Human Services, 5 M.S.P.R. 191, 192 (1981)
(administrative judge properly dismissed appeal as untimely where the appellant
submitted no reason for his late filing).
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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
5
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 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.
If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
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.