                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LAVAKE COWART,                                  DOCKET NUMBER
                 Appellant,                          SF-0353-15-0069-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: June 30, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Lavake Cowart, Inglewood, California, pro se.

           Kathryn E. Carroll, San Francisco, California, 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 restoration appeal as untimely filed without good cause shown for
     the delay in filing. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     application of the law to the facts of the case; the 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.   See 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, and
     based on the following points and authorities, 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 and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant is a preference-eligible veteran and a former Electronic
     Technician, PS-10, at the agency’s Los Angeles Processing and Distribution
     Center (P&DC). Initial Appeal File (IAF), Tab 22 at 156. On October 23, 2014,
     he filed this appeal alleging that the agency arbitrarily and capriciously denied his
     request for restoration on December 19, 2011, when it informed the Office of
     Workers’ Compensation Programs (OWCP) that it would not restore him to
     limited duty. IAF, Tab 1 at 5.
¶3         This is the appellant’s fifth Board appeal arising from an altercation with
     the Postal Police on December 18, 2010, an incident for which the agency
     unsuccessfully sought to remove him. 2 See IAF, Tab 29, Initial Decision (ID) at
     2-9. In addition, he filed related claims with the OWCP, the Occupational Safety


     2
       The applicable Board cases are: Cowart v. U.S. Postal Service, MSPB Docket No.
     SF-0752-13-0140-I-1, Initial Decision (Apr. 12, 2013), vacated and dismissed,
     120 M.S.P.R. 569 (2014) (Table); Cowart v. U.S. Postal Service, MSPB Docket No.
     SF-0752-11-0465-B-1, Initial Decision (Nov. 5, 2012), aff’d, 119 M.S.P.R. 633 (2013)
     (Table); Cowart v. U.S. Postal Service, MSPB Docket No. SF-0752-12-0112-I-1, Initial
     Decision (Feb. 1, 2012), aff’d as modified, 118 M.S.P.R. 319 (2012) (Table); Cowart v.
     U.S. Postal Service, MSPB Docket No. SF-0752-11-0465-I-1, Initial Decision (July 29,
     2011), aff’d and remanded, 117 M.S.P.R. 572 (2012); and Cowart v. U.S. Postal
     Service, MSPB Docket No. SF-0752-11-0304-I-1, Initial Decision (May 31, 2011).
                                                                                        3

     & Health Administration, the Office of Personnel Management, the Equal
     Employment Opportunity Commission, and the U.S. District Court for the Central
     District of California. ID at 2, 9. A detailed litigation summary is set forth in the
     initial decision and will be reiterated only to the extent necessary for clarity. See
     ID at 2-9. While these various actions were pending, the appellant applied, and
     was approved, for disability retirement. IAF, Tab 22 at 161. He was officially
     separated from the agency effective April 30, 2012, because he was found to be
     “totally disabled for useful and efficient service” in the Electronic Technician
     position. Id. at 156.
¶4         The appellant continued to litigate matters related to his departure,
     however, and on June 1, 2012, he filed an equal employment opportunity (EEO)
     complaint in which he alleged that he was discriminated against based on
     disability (post-traumatic stress disorder) and in retaliation for prior EEO
     activity. Id. at 125, 127-28, 131-55. He alleged that he was forced to retire on
     disability because the agency failed to accommodate his condition and that “no
     reasonable person could endure” the agency’s treatment and retaliatory acts
     against him.   Id. at 145-47.    The agency issued a Final Agency Decision on
     November 9, 2012, finding that he failed to prove his claims. Id. at 131-55. The
     appellant timely appealed the matter to the Board. See Cowart v. U.S. Postal
     Service, MSPB Docket No. SF-0752-13-0140-I-1, Initial Decision (Apr. 12,
     2013).   The Board docketed the appeal as an involuntary disability retirement
     claim. Id. at 1.
¶5         The appellant moved to amend the appeal to include a claim that the agency
     denied him restoration under 5 C.F.R. Part 353 as a partially recovered employee
     who had suffered a compensable injury.        Id. at 8.   The administrative judge
     advised him to file a separate appeal if he wished to pursue a restoration
     claim. Id. The administrative judge also advised him of the elements and burden
     of proof in a restoration appeal. Id. The appellant did not make any further
     submission and the record closed. Id. at 9. The administrative judge dismissed
                                                                                          4

     that appeal for lack of jurisdiction without holding a hearing.        Id. at 2, 16.
     Because the administrative judge found that the Board lacked jurisdiction over
     the involuntary disability retirement claim, she likewise dismissed the appellant’s
     allegations of discrimination and reprisal. Id. at 16. The initial decision was
     issued on April 12, 2013. Id. at 1.
¶6        The appellant filed a petition for review. See Cowart v. U.S. Postal Service,
     MSPB Docket No. SF-0752-13-0140-I-1, Final Order at 1 (Feb. 3, 2014) (Final
     Order).   His petition was dismissed, however, when he entered into a global
     settlement agreement with the agency arising from a lawsuit he had filed in the
     U.S. District Court for the Central District of California, Lavake Cowart and Mai
     Pham Cowart v. United States, No. CV 13-01900 JFW (MRWx) (C.D. Cal.)
     (Nov. 5, 2013). See IAF, Tab 22 at 30-36. The Board found that the settlement
     agreement represented an explicit waiver of his right to appeal an alleged
     involuntary disability retirement and his claims that the agency had committed
     discriminatory and retaliatory acts against him. Final Order at 3-4. The Board
     thus dismissed the petition for review and underlying appeal as settled. Id. at 4.
¶7        The appellant filed the instant appeal on October 23, 2014. IAF, Tab 1. He
     alleged that the agency arbitrarily and capriciously denied him restoration to the
     Electronic Technician position.       Id. at 5.   He responded to the jurisdictional
     portion of the acknowledgment order, see IAF, Tab 2 at 4, and filed several
     submissions regarding the Board’s jurisdiction, reiterating his disability
     discrimination allegations, IAF, Tabs 5-8, 18-21. The agency, however, asserted
     that the appeal had been untimely filed.            IAF, Tab 22 at 17-18.        The
     administrative judge thus issued an order on timeliness advising the appellant that
     the filing period for his appeal “may have begun on January 17, 2013 . . . and . . .
     [i]t therefore appears that [his] appeal was filed approximately 614 days late.” 3



     3
       Our calculations show that the appeal was actually 612 days late because the
     regulatory filing period ended on a Saturday, extending the deadline to the following
                                                                                      5

     IAF, Tab 26 at 2 (emphasis omitted); see 5 C.F.R. §§ 353.304(a), 1201.22(b)(1).
     The administrative judge explained that she had issued the appellant notice of his
     right to file a restoration appeal on January 17, 2013. IAF, Tab 26 at 2 n.1. After
     the parties had an opportunity to respond to the order on timeliness, see IAF,
     Tabs 27-28, the administrative judge dismissed the appeal as untimely filed
     without good cause shown for the delay in filing, ID at 2, 15.
¶8         On review, the appellant argues that the administrative judge dismissed the
     appeal “in error” because “the agency required [him] to surrender his restoration
     rights as a settlement condition” in related litigation. Petition for Review (PFR)
     File, Tab 1 at 4. He also asserts issues pertaining to the merits of the appeal and
     to litigation covered under the settlement agreement.       See id. at 3-4. He also
     asserts that the administrative judge improperly cancelled an appearance by one
     of his witnesses. Id. at 3.
¶9         We find, however, that the administrative judge properly dismissed the
     appeal as untimely filed. An appellant bears the burden of establishing that his
     appeal was timely filed, or that good cause exists for the untimely filing. If he
     fails to do so, then the appeal must be dismissed.         5 C.F.R. §§ 1201.22(c),
     1201.56(b)(2)(B).      In a restoration appeal, the issues of timeliness and
     jurisdiction may be inextricably intertwined when resolution of the timeliness
     issue depends on whether the appellant was subject to an appealable action. See
     Wright v. U.S. Postal Service, 105 M.S.P.R. 425, ¶ 9 (2007). In such cases, an
     administrative judge first must make a finding on jurisdiction to discern whether
     an appealable action has occurred, then address the timeliness of the appeal. Id.
     Here, however, there exists a date certain from which to measure the filing period
     because the appellant received specific information about his right to file a
     restoration appeal from the administrative judge. The issues of jurisdiction and
     timeliness thus are not inextricably intertwined.       Because the record on the

     Monday. See 5 C.F.R. § 1201.23.           This minor difference does not change our
     disposition of the timeliness question.
                                                                                      6

      timeliness question was sufficient, the administrative judge appropriately
      considered that issue. See Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 586
      (1995) (in an appropriate case, an administrative judge may assume arguendo that
      an appellant was subjected to an appealable action and has standing to appeal, and
      go on to dismiss an appeal as untimely filed, if the record on timeliness is
      sufficiently developed).
¶10         The untimely filing of an appeal may be waived for good cause shown.
      See 5 C.F.R. § 1201.22(c). To establish good cause for waiver, 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). Where, as here, the agency did not give the appellant notice of
      his appeal rights, the Board will consider whether he unduly delayed filing his
      appeal after he became aware of an appealable basis for his claim. See Redus v.
      U.S. Postal Service, 88 M.S.P.R. 193, ¶ 16, aff’d, 25 F. App’x 904 (Fed. Cir.
      2001); see also Shiflett v. U.S. Postal Service, 839 F.2d 669, 670-74 (Fed. Cir.
      1988) (finding that the Board may grant or deny the waiver of a time limit for
      filing an appeal, in the interest of justice, after considering all the facts and
      circumstances of a particular case). An appellant who was not advised of his
      appeal rights is “not required to show that he exercised due diligence in
      attempting to discover his appeal rights,” and instead must show that he was
      diligent in filing an appeal after he discovered his rights. Gingrich, 67 M.S.P.R.
      at 587.
¶11         Although the agency did not inform the appellant that he might have appeal
      rights, the administrative judge so informed him on January 17, 2013.        IAF,
      Tab 26 at 2 n.1. Arguably, the appellant knew of his appeal rights before that
      time because he requested to add a restoration claim to his prior appeal in his
      January 1, 2013 motion, to which the administrative judge responded on January
                                                                                              7

      17, 2013. 4 See id.; IAF, Tab 26 at 77-80. The appellant thus filed his restoration
      claim at least 644 days after he became aware of an appealable basis for that
      claim. 5 When the administrative judge advised the appellant that he must show
      good cause for his untimely filing, see IAF, Tab 26, his response was to protest
      that the agency failed to give him appeal rights in any of his Board appeals, see
      IAF, Tab 27 at 3.         Nevertheless, as we explain above, the Board considers
      whether the appellant unduly delayed filing his appeal after he became aware of
      an appealable basis for his claim. See Redus, 88 M.S.P.R. 193, ¶ 16.
¶12           As for his assertion that the agency improperly required him to waive
      restoration appeal rights in the global settlement agreement, see PFR File, Tab 1
      at 4, the administrative judge did not reach that issue and instead decided the
      appeal based on the issue of timeliness. Additionally, the Board’s final order in
      his involuntary disability retirement appeal, dismissing that appeal as settled,
      addressed waiver of his appeal rights. See Final Order at 3-4.

                         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.

      4
       The agency asserted that the appellant was placed on notice of his appeal rights when
      he learned from OWCP that the agency would not return him to duty in a rehabilitation
      position outside of the P&DC. That information dates from the period between
      December 2011 and February 2012, the agency asserts. IAF, Tab 22 at 16.
      5
          This timeframe includes the filing period immediately following January 17, 2013.
                                                                                         8

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