                             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                  THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
