                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOE E. NESMITH,                                 DOCKET NUMBER
                         Appellant,                  DA-0752-16-0048-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Joe E. Nesmith, Corpus Christi, Texas, pro se.

           Kenneth M. Muir, Esquire, Corpus Christi, Texas, 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 as untimely filed. 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 regulation
     or the erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

       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. 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, 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.   Except as expressly MODIFIED by this Final Order to
       provide notice of mixed-case appeal rights, we AFFIRM the initial decision.
¶2          On June 20, 2014, the agency removed the appellant from the position of
       Aircraft Mechanic, WG-8852-10, based on alleged misconduct. Initial Appeal
       File (IAF), Tab 9 at 45-48. On August 18, 2014, the appellant filed a formal
       equal employment opportunity (EEO) complaint concerning the removal action.
       Id. at 36-42.    In December 2014, the agency’s EEO office issued a letter
       informing the appellant that its investigation into his complaint was completed.
       Id. at 43. The letter explained that, because his case was a mixed case, i.e., a
       discrimination claim stemming from an action appealable to the Board, he was
       not entitled to a hearing before an Equal Employment Opportunity Commission
       (EEOC) administrative judge, and his case instead would be forwarded to the
       agency’s Director for EEO Compliance and Complaints Review for issuance of a
       final agency decision (FAD). Id. The letter further explained:
             Since it has been over 120 days from the date you filed your
             complaint you may appeal the matter directly with the MSPB or at
             any time thereafter as specified at 5 C.F.R. § 1201.154(b)(2), or you
             may file a civil action as specified at § 1614.310(g), but not both.
     Id. The letter was erroneously dated “December 2019.” Id.
¶3          On January 29, 2015, the agency issued a FAD finding that the appellant
       was not a victim of discrimination. Id. at 10-23. The FAD included notice of the
       appellant’s right to file an appeal with the Board within 30 calendar days of the
                                                                                      3

     receipt of the decision. Id. at 21. The FAD was delivered to the appellant by
     certified mail. Id. at 34.
¶4         The appellant filed the instant appeal on October 23, 2015. IAF, Tab 1.
     Because it appeared the appeal was untimely filed, the administrative judge
     issued an order directing the appellant to submit evidence and argument as to why
     his appeal should not be dismissed as untimely filed. IAF, Tab 5. The appellant
     filed a response, to which he attached a copy of the December 2014 letter. IAF,
     Tab 7. He explained that he was led to believe that he could file a Board appeal
     at any time after receiving the letter. IAF, Tab 10. He further argued, in the
     alternative, that he believed “December 2019” indicated the filing deadline. Id.
     On January 29, 2016, the administrative judge issued an initial decision
     dismissing the appeal as untimely filed without a showing of good cause for the
     delay in filing. IAF, Tab 11, Initial Decision.
¶5         On petition for review, the appellant again argues that, based on the
     December 2014 letter and the Board’s regulation at 5 C.F.R. § 1201.154(b)(2), he
     believed he could file a Board appeal at any time after receiving the letter, or at
     any rate by December 2019. Petition for Review (PFR) File, Tab 1. The agency
     has filed a response. PFR File, Tab 3.
¶6         Under the Board’s regulations at 5 C.F.R. § 1201.154(a), when the appellant
     has been subjected to an action appealable to the Board and raises issues of
     prohibited discrimination, he may either file a timely formal complaint of
     discrimination with the agency or file an appeal with the Board no later than
     30 days after the effective date of the action being appealed, or 30 days after the
     date of receipt of an agency’s decision on the appealable action, whichever is
     later. The regulations further provide:
           If the appellant has filed a timely formal complaint of discrimination
           with the agency:
               (1) An appeal must be filed within 30 days after the appellant
               receives the agency resolution or final decision on the
               discrimination issue; or
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               (2) If the agency has not resolved the matter with 120 days, the
               appellant may appeal the matter directly to the Board at any time
               after the expiration of 120 days. Once the agency resolves the
               matter or issues a final decision on the formal complaint, an
               appeal must be filed within 30 days after the resolution or final
               decision on the discrimination issue.
     5 C.F.R. § 1201.154(b).
¶7         In this case, 5 C.F.R. § 1210.154(b)(2) applies, because the agency did not
     issue a FAD within 120 days of the appellant’s formal EEO complaint. Had the
     appellant filed a Board appeal after the 120-day period, but before the issuance of
     a FAD, his appeal would have been timely filed.        However, once the agency
     issued its FAD on January 29, 2015, the appellant was required under the same
     regulation to file his Board appeal within 30 days of his receipt of the FAD. Id.
     Because documents placed in the mail are presumed to be received in 5 days,
     Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 7 (2007), and the
     appellant has not alleged any delay in delivery, we presume he received the FAD
     no later than February 3, 2015. Hence, to meet the filing deadline, the appellant
     needed to file his appeal within the following 30 days, i.e., on or before March 5,
     2015. The appellant filed his appeal on October 23, 2015, more than 7 months
     after the deadline.
¶8         To establish good cause for the untimely filing of an appeal, 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 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
                                                                                         5

      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).
¶9          While we are mindful of the appellant’s pro se status, a filing delay of more
      than 7 months is nonetheless significant. See, e.g., Robey v. U.S. Postal Service,
      105 M.S.P.R. 539, ¶ 16, aff’d, 253 F. App’x 933 (Fed. Cir. 2007). Furthermore,
      the appellant has not provided a satisfactory explanation for the delay. To the
      extent the appellant contends he was misled by the “December 2019” date printed
      at the top of the December 2014 letter, his explanation is not credible, as it is not
      customary to place a deadline at the top of a letter near the letterhead.       It is
      possible the appellant may have misread the December 2014 letter as stating that
      he could file a Board appeal at any time after 120 days elapsed since the filing of
      his EEO complaint, regardless of whether a FAD was subsequently issued.
      However, any remaining confusion should have been dispelled by the FAD itself,
      which explicitly stated that the appellant had the right to file a Board appeal
      “within 30 calendar days of the receipt of this decision.”        IAF, Tab 9 at 21
      (emphasis in original). The appellant’s failure to file his appeal in accordance
      with that unambiguous instruction constitutes a failure to exercise due diligence
      or ordinary prudence.      See Williams v. Office of Personnel Management,
      71 M.S.P.R. 597, 606 (1996), aff’d, 119 F.3d 16 (Fed. Cir. 1997) (Table).
¶10         In sum, we agree with the administrative judge that the appellant did not
      demonstrate good cause for the untimely filing of his appeal.           Because the
      appellant has raised discrimination claims in connection with his removal, which
      is within our appellate jurisdiction, we modify the initial decision to provide
      mixed-case appeal rights consistent with the decision of the U.S. Supreme Court
      in Kloeckner v. Solis, 133 S. Ct. 596, 598 (2012).
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                 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 U.S. 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 U.S. 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
                                                                                 7

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