                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     CYNTHIA B. BROOKS, 1                            DOCKET NUMBER
                   Appellant,                        SF-0752-13-2095-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 8, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           Cynthia B. Brooks, Roseville, California, pro se.

           Jason DeRosa, Esquire, Portland, Oregon, 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
     dismissed her appeal with prejudice for failure to prosecute. For the reasons set


     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
     Engineers/South Pacific Division v. Department of the Army, MSPB Docket No.
     SF-0752-14-0285-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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


     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).

                                         BACKGROUND
¶2        On May 31, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, a Supervisory Geologist, that she would be furloughed
     for no more than 11 workdays due to “the extraordinary and serious budgetary
     challenges facing the Department of Defense (DoD) for the remainder of Fiscal
     Year (FY) 2013, the most serious of which is the sequester that began on
     March 1, 2013.”     Initial Appeal File (IAF), Tab 1 at 9-10.       The appellant
     submitted a written reply to the proposal notice. IAF, Tab 5 at 11. By written
     notice dated June 24, 2013, the agency’s deciding official informed the appellant
     that she would be furloughed as outlined in the proposal notice.       IAF, Tab 1
     at 12-14.   The record includes a Standard Form 50 reflecting the appellant’s
     furlough, effective July 8, 2013, on discontinuous days between July 8, 2013, and
     September 30, 2013, and not to exceed a maximum of 88 hours during the
     furlough period. Id. at 7-8.
¶3        The appellant filed a Board appeal challenging the agency’s action but
     indicated that she did not want a hearing. Id. at 1-6. In a furlough procedures
     order, the administrative judge informed the appellant that her appeal had been
     consolidated with the appeals of similarly situated employees.           Corps of
     Engineers/South Pacific Division v. Department of the Army, MSPB Docket
     No. SF-0752-14-0285-I-1, Consolidated Appeal File, Tab 2. On July 21, 2014,
     the administrative judge issued an initial decision dismissing the appellant’s
     appeal with prejudice for failure to prosecute. IAF, Tab 6, Initial Decision (ID)
     at 1, 3. In particular, the administrative judge found that the appellant failed to
     exercise basic due diligence in prosecuting her appeal because she failed to
     appear for the scheduled status conference call, to submit a close of record
     submission or a response to the agency’s close of record submission, or to
                                                                                        3


     respond to the show cause order on the failure to prosecute issue. ID at 2. The
     administrative judge also informed the parties that the initial decision would
     become final if neither party filed a petition for review by August 25, 2014. ID at
     3.
¶4        The appellant filed a petition for review on January 28, 2015. Petition for
     Review (PFR) File, Tab 1. The agency has not filed a response.

                          DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant has not established good cause for untimely filing her petition for
     review.
¶5        Generally, a petition for review must be filed within 35 days after the
     issuance of the initial decision, or, if the petitioner shows that she received the
     initial decision more than 5 days after the date of the issuance, within 30 days
     after the date she received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
     administrative judge issued the initial decision on July 21, 2014, and the
     certificate of service reflects that the appellant received the initial decision
     through email on July 22, 2014. ID at 1; IAF, Tab 7. In the initial decision, the
     administrative judge informed the parties that the initial decision would become
     the Board’s final decision if neither party filed a petition for review by
     August 25, 2014. ID at 3; see 5 C.F.R. § 1201.113.
¶6        The appellant filed a petition for review on January 28, 2015, 5 months past
     the initial decision’s finality date. PFR File, Tab 1. In her petition for review,
     she argues that the Board should find good cause for her untimely filing by
     stating the following:   “After filing the initial appeal I did not realize that I
     needed to do more as I have not been involved with an appeal before now. I have
     read and agree with the Judge’s decision dated 21 November 2014, and wish to be
     reinstated along with the other appellants.” Id. at 3-4. In an acknowledgment
     letter, the Office of the Clerk of the Board informed the appellant that her petition
     for review was untimely filed and that she could file a motion with the Board to
                                                                                       4


     accept her filing as timely or to waive the time limit for good cause. PFR File,
     Tab 2 at 2. The appellant did not respond to the letter.
¶7        The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
     establish good cause, the appellant must show that she 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 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 for review.
     See 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).
¶8        We find that the appellant has not demonstrated good cause for her untimely
     petition for review. Although an appellant’s pro se status is a factor weighing in
     her favor, it is insufficient to excuse her untimeliness.       Allen v. Office of
     Personnel Management, 97 M.S.P.R. 665, ¶ 8 (2004).          Her 5-month delay in
     filing her petition for review is significant.   See, e.g., Dow v. Department of
     Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding a more than 1-month
     delay in filing a petition for review was significant).    Although the appellant
     mistakenly believed that she was not required to take action beyond filing her
     initial appeal, her inexperience with legal matters and unfamiliarity with Board
     procedures do not warrant waiving the filing deadline.             See Wallace v.
     Department of Veterans Affairs, 81 M.S.P.R. 88, ¶ 5, aff’d, 217 F.3d 856 (Fed.
     Cir. 1999) (Table). The appellant received clear notice of the filing deadline in
     the initial decision. See ID at 3. Thus, we find that the appellant has failed to
                                                                                  5


show that she exercised due diligence or ordinary prudence in this case that
would justify waiving the filing deadline.

                   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
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 an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
                                                                                6


representation for Merit Systems Protection Board appellants before the Federal
Circuit.   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.
