                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHARAZ HOSEIN,                                  DOCKET NUMBER
                  Appellant,                         PH-0752-13-5332-I-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: July 8, 2016
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Sharaz Hosein, Norwalk, Connecticut, pro se.

           Carolyn D. Jones, Esquire, Williston, Vermont, 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
     affirmed the agency’s removal action.        For the reasons set forth below, the
     appellant’s petition for review is DISMISSED as untimely filed without good
     cause shown. 5 C.F.R. § 1201.114(e), (g).


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


                                         BACKGROUND
¶2        The appellant appealed the agency’s action removing him from his position
     of Law Enforcement Specialist with the Bureau of Immigration and Customs
     Enforcement     (ICE).     Hosein    v.     Department   of    Homeland       Security,
     PH-0752-13-5332-I-1, Initial Appeal File (IAF), Tab 1. After holding a hearing,
     the administrative judge sustained the charged misconduct and affirmed the
     agency’s removing the appellant. Hosein v. Department of Homeland Security,
     PH-0752-13-5332-I-2, Appeal File (I-2 AF), Tab 19, Initial Decision (ID) at 21.
     The initial decision also informed the parties that it would become final, unless a
     party filed a petition for review by June 4, 2015. ID at 21.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶3        On June 4, 2015, the appellant filed a request for an extension to file his
     petition for review. Petition for Review (PFR) File, Tab 1. The Office of the
     Clerk of the Board granted the appellant’s request and notified him that his
     petition for review had to be filed on or before July 6, 2015. PFR File, Tab 2.
     On December 5, 2015, the appellant filed a submission that appeared to be a
     petition for review. PFR File, Tab 3. On December 29, 2015, the appellant filed
     a submission which states that, “per phone request,” he is clarifying that his
     submission is a petition for review. PFR File, Tab 4. The agency has filed a
     response in which it argues, inter alia, that the appellant’s petition for review
     should be dismissed as untimely filed. PFR File, Tab 6.
¶4        A petition for review must be filed within 35 days after the date of issuance
     of the initial decision. Sutton v. Office of Personnel Management, 113 M.S.P.R.
     576, ¶ 5 (2010), aff’d, 414 F. App’x 272 (Fed. Cir. 2011); 5 C.F.R. § 1201.114(d).
     The Board will waive the filing deadline for a petition for review only upon a
     showing of good cause for the delay in filing. Id.; Lawson v. Department of
     Homeland      Security,   102    M.S.P.R.     185,   ¶    5    (2006);    5     C.F.R.
     §§ 1201.12, 1201.114(f). To establish good cause for an untimely filing, a party
                                                                                       3


     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 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).
¶5        Here, the appellant filed his petition for review over 5 months after the
     July 6, 2015 extended filing deadline. PFR File, Tab 1. On January 5, 2016, the
     Board notified the appellant that his petition for review was untimely filed and
     instructed him to file a “Motion to Accept Filing as Timely or to Waive Time
     Limit” form. PFR File, Tab 5. The appellant did not respond.
¶6        While it is somewhat unclear as to what the appellant is asserting in his
     petition for review, it is clear that he did not address the timeliness issue. PFR
     File, Tab 3.   Submitted with the appellant’s petition for review is a hospital
     discharge instruction sheet, which reflects that he was treated for an anxiety/panic
     attack on November 20, 2015, and that it was recommended that he follow up
     with a physician and a cardiologist. PFR File, Tab 3. To the extent the appellant
     may be asserting that he had medical issues that prevented him from timely filing
     his petition for review, the Board will find good cause for a filing delay where an
     appellant has demonstrated that he suffered from an illness that affected his
     ability to file on time. Sutton, 113 M.S.P.R. 576, ¶ 10; Lacy v. Department of the
     Navy, 78 M.S.P.R. 434, 437 (1998). To establish that an untimely filing was the
     result of an illness, the party must: (1) identify the time period during which he
     suffered from the illness; (2) submit medical evidence showing that he suffered
                                                                                          4


     from the alleged illness during that time period; and (3) explain how the illness
     prevented him from timely filing his appeal or a request for an extension of time.
     Sutton, 113 M.S.P.R. 576, ¶ 10; Lacy, 78 M.S.P.R. at 437. While there is no
     general incapacitation requirement, the appellant is required to explain why his
     alleged illness impaired his ability to meet the Board’s filing deadline or seek an
     extension of time. Sutton, 113 M.S.P.R. 576, ¶ 10; Lacy, 78 M.S.P.R. at 437 n.*.
¶7         In this instance, the appellant submitted medical documentation from a
     hospital visit that occurred well after the filing deadline, and he fails to provide
     any explanation as to how his medical conditions on November 20, 2015,
     prevented him from timely filing his petition or a request for an extension of
     time. See, e.g., Ortiz v. Department of Justice, 103 M.S.P.R. 621, ¶ 23 (2006)
     (finding that a letter by the appellant’s physician that the appellant suffered from
     depression and other conditions was insufficient to justify the entire 3-year delay
     in filing a petition for review where the letter failed to state that the appellant’s
     condition was so severe that he could not file a petition for review or seek help to
     do so). Thus, we find that the appellant has not demonstrated that his medical
     conditions prevented him from timely filing his petition for review.
¶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 removal appeal.

                     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).                Title 5 of
                                                                                    5


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
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
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                       ______________________________
                                     Jennifer Everling
                                     Acting Clerk of the Board
Washington, D.C.
