                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LEWIS E. HUNTER, 1                              DOCKET NUMBER
                   Appellant,                        SF-0752-13-1627-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           Lewis E. Hunter, Sacramento, 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 his 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 June 3, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, a Geologist, that he 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. Id. at 15-16. By written notice dated June 24, 2013, the
     agency’s deciding official informed the appellant that he would be furloughed as
     outlined in the proposal notice. Id. at 12-14. The record includes a Standard
     Form 50 (SF-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 he did not want a hearing.     IAF, Tab 1 at 1-6.     In a furlough
     procedures order, the administrative judge informed the appellant that his 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 his appeal because he 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 respond to the show
     cause order on the failure to prosecute issue. ID at 2. The administrative judge
                                                                                        3

     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 has filed a petition for review. 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 his 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 he received the
     initial decision more than 5 days after the date of the issuance, within 30 days
     after the date he 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 initial decision was sent to the appellant
     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. The appellant filed a petition
     for review on January 21, 2015, almost 5 months past the initial decision’s
     finality date. PFR File, Tab 1. In his petition for review, he argues that the
     Board should find good cause for his untimely filing by stating the following:
     “My original petition was filed in a timely manner but I did not realize that
     repeated input was needed to keep my appeal active.       I agree with the initial
     decision of the administrative judge.   I disagree with the agency’s petition for
     review. In this context I am requesting to have my appeal reactivated.” Id. at 3-
     4. In an acknowledgment letter, the Office of the Clerk of the Board informed the
     appellant that his petition for review was untimely filed and that he could file a
     motion with the Board to accept his filing as timely or to waive the time limit for
     good cause. PFR File, Tab 2 at 1-2. The appellant did not respond to the letter.
                                                                                      4

¶6        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 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 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).
¶7        We find that the appellant has not demonstrated good cause for his untimely
     petition for review. Although the appellant’s pro se status is a factor weighing in
     his favor, it is insufficient to excuse his untimeliness.      Allen v. Office of
     Personnel Management, 97 M.S.P.R. 665, ¶ 8 (2004). His nearly 5-month delay
     in filing his 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 significant).       Although the appellant
     mistakenly believed that he was not required to take action beyond filing his
     initial appeal, his 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
     show that he exercised due diligence or ordinary prudence in this case that would
     justify waiving the filing deadline.
                                                                                         5

¶8         The appellant submits new evidence in his petition for review and argues
     that the Board should consider it by stating: “These documents came out after the
     filing. As a result of the furlough a re-evaluation of workload was performed
     resulting in my re-classified [sic] into civil works. This indicates that the original
     UIC code used to determine whether I was furlough eligeble [sic] did not reflect
     my workload at the time of filing as claimed in my initial appeal.” PFR File, Tab
     1 at 5.    The new evidence consists of an SF-50 reflecting the appellant’s
     realignment, effective June 15, 2014, and a memorandum signed by him on June
     4, 2014. Id. at 7-10. We find that the 6-month delay between the appellant’s
     apparent discovery of the evidence in June 2014 and the filing of the petition for
     review in January 2015 shows his lack of diligence. Cf. Armstrong v. Department
     of the Treasury, 591 F.3d 1358, 1362-63 (Fed. Cir. 2010) (finding that the
     appellant’s 3-week delay did not demonstrate a lack of diligence, but nothing that
     it may be appropriate in certain cases for the Board to consider new evidence
     even where there was a lengthy delay).
¶9         Our reviewing court has held that when a petitioner delays before filing a
     petition for review, as in the case here, justice may require waiving the timeliness
     requirement only when the new evidence is likely to change the result originally
     reached.   Id.; see De Le Gal v. Department of Justice, 79 M.S.P.R. 396, 399
     (1998) (discovery of new evidence may establish good cause for the untimely
     filing of a petition for review if the appellant shows that it was not readily
     available before the record closed below, and that it is of sufficient weight to
     warrant an outcome different from that of the initial decision), aff’d, 194 F.3d
     1336 (Fed. Cir. 1999) (Table). We find that the appellant’s new evidence is not
     likely to change the administrative judge’s dismissal of the case for failure to
     prosecute. The new evidence does not explain why the appellant 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 respond to the show
     cause order on the failure to prosecute issue. See ID at 2. Because we find that
                                                                                  6

the new evidence is not of sufficient weight to warrant an outcome different from
that of the initial decision, we decline to waive the timeliness requirement.

                  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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for
information regarding pro bono representation for Merit Systems Protection
                                                                             7

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.
