                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WAYNE RESPRESS,                                 DOCKET NUMBER
                 Appellant,                          CH-0752-15-0660-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: May 3, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Wayne Respress, Dayton, Ohio, pro se.

           F. Thomas Giambattista, Esquire, and William A. McClain, II,
              Wright-Patterson Air Force Base, Ohio, 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the administrative
     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, 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        It is undisputed that the appellant was employed as a GS-08 Fire Protection
     Inspector at the agency’s Wright-Patterson Air Force Base when the agency
     removed him in March 1992 for illegal drug use. Initial Appeal File (IAF), Tab 1
     at 10. The appellant admits that he was taking drugs at the time of his removal.
     IAF, Tab 7. He asserts that he injured his back in 1987 and when he returned to
     work after the injury, he claimed that he initially abused his prescription
     medication and then purchased illegal drugs when his prescriptions ran out.
     Subsequently, the appellant failed a random drug test performed by the agency,
     and he was removed for illegal drug use. IAF, Tab 1 at 5-6, Tab 10.
¶3        In August 2015, the appellant filed this appeal, 23 years after the effective
     date of his removal. IAF, Tab 1. In response to the Board’s order to show that
     his appeal was filed on time or that good cause existed for the delay in filing, the
     appellant argued the following: (1) that his attorney in 1992 filed his paperwork
     incorrectly; and (2) that his drug addiction prevented him from actively
     participating in his appeal. IAF, Tab 7.
¶4        The Board’s regulations provide that an appeal must be filed no later than
     30 days after the effective date, if any, of the action being appealed, or 30 days
     after the date of receipt of the agency’s decision, whichever is later. 5 C.F.R.
                                                                                        3

     § 1201.22(b). The regulations further provide that, if a party does not submit an
     appeal within the applicable time limit, it will be dismissed as untimely filed
     unless a good reason for the delay is shown. 5 C.F.R. § 1201.22(c); see Cranston
     v. U.S. Postal Service, 106 M.S.P.R. 290, ¶ 8 (2007). To establish good cause for
     an untimely 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 that 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).
¶5         Here, the administrative judge found that the appellant filed his removal
     appeal 23 years late and that he failed to demonstrate good cause for his untimely
     filing.    IAF, Tab 11, Initial Decision (ID) at 4-5.     The administrative judge
     determined that, because the appellant is bound by the actions of his chosen
     representative, the appellant’s unsupported claim that his counsel failed to
     correctly file his appeal in 1992 does not excuse his delay in filing. ID at 4. The
     administrative judge also found that, to the extent the appellant is arguing that his
     drug addiction caused the 23-year delay, the appellant failed to document his
     apparent incapacitation during that lengthy period of time. ID at 4. Thus, she
     dismissed the appeal as untimely filed. ID at 5.
¶6         On review, the appellant does not challenge the administrative judge’s
     findings regarding the timeliness of his appeal, and we have found no basis upon
     which to disturb the administrative judge’s determinations in this regard. Rather,
     the appellant appears to argue the merits of his underlying removal, which are not
                                                                                    4

relevant to the timeliness issue. Coles v. Department of the Army, 85 M.S.P.R.
571, ¶ 5 (2000). Thus, we conclude that the appeal was correctly dismissed as
untimely filed without a showing of good cause for the delay.

                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
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 U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for   information    regarding   pro    bono
                                                                                5

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.
