                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SPECIAL COUNSEL,                                DOCKET NUMBER
                  Petitioner,                        CB-1215-14-0011-T-1

                  v.

     ANNIE HERBERT,                                  DATE: April 19, 2016
                  Respondent.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clarissa Pinheiro, Esquire, Mariama Liverpool, Esquire, and Rachel A.
             Venier, Esquire, Washington, D.C., for the petitioner.

           Annie Herbert, Indianapolis, Indiana, pro se.


                                              BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                          FINAL ORDER

¶1         The respondent has filed a petition for review of the initial decision, which
     dismissed as settled the complaint that the petitioner brought against her. For the
     reasons set forth below, the respondent’s petition for review is DISMISSED as
     untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2         On June 18, 2014, consistent with 5 C.F.R. § 1201.36(b), an administrative
     law judge designated by the Board sua sponte consolidated complaints brought by
     the petitioner against three individually-named respondents, including the
     respondent in this matter. 2 The administrative law judge did so under MSPB
     Docket    No.    CB-1215-14-0019-T-1,          Consolidation   Appeal    File,   Tab 1.
     Notwithstanding, for the purpose of allowing greater flexibility in removing
     respondents from the consolidation, the administrative law judge also issued
     separate docket numbers for each of the three respondents, which he considered
     as their individual docket numbers.      Id.    The cases proceeded as consolidated
     under MSPB Docket No. CB-1215-14-0019-T-1 until September 26, 2014, when,
     in the case of this respondent, the administrative law judge removed her from the
     consolidation 3 because the respondent reached a settlement with the petitioner
     resolving the complaint against her. Office of Special Counsel v. Herbert, MSPB
     Docket No. CB-1215-14-0011-T-1, Initial Appeal File (IAF), Tab 8, Tab 9, Initial
     Decision (ID).    On that basis, the administrative law judge issued an initial
     decision dismissing the complaint as settled. ID. The decision’s finality date was
     October 31, 2014.



     2
       The complaints involved the respondents’ alleged improper manipulation of four
     competitive examinations, and discrimination on the basis of political affiliation in
     violation of 5 U.S.C. § 2302(b)(1)(E) and (b)(6).
     3
       Earlier, on September 3, 2014, the administrative law judge removed Respondent
     John Kappel’s case from the consolidation based upon the parties having reached a
     settlement agreement, and he dismissed the case as settled. Office of Special Counsel v.
     Kappel, MSPB Docket No. CB-1215-14-0010-T-1, Initial Decision (Sept. 3, 2014).
     Respondent Kappel has not filed a petition for review of that decision. Respondent
     Coffman’s complaint continued through hearing and to adjudication wherein the
     administrative law judge found the complaint against her not proven. Office of Special
     Counsel v. Coffman, MSPB Docket No. CB-1215-14-0012-T-1, Initial Decision (Oct. 6,
     2015). The Office of Special Counsel has challenged that decision and it is currently
     pending before the Board on petition for review.           It will be addressed in a
     separate decision.
                                                                                            3

¶3         On November 4, 2015, the respondent, appearing pro se, 4 filed a petition for
     review of that decision. Petition for Review (PFR) File, Tab 1. She asked that
     the settlement agreement be rescinded based on the decision of the administrative
     law judge “exonerating” Respondent Coffman.              Id. at 1.    Specifically, the
     respondent argued that “[n]one of the executive level decision makers/key players
     have been held accountable for the action of their respective offices; yet, I have
     experienced financial hardship, embarrassment, persecution, and been made the
     scape goat for actions that were beyond my control and not initiated by me.” Id.
     The Clerk of the Board informed the respondent that her petition for review was
     untimely filed and instructed her to file a motion for waiver of the time limit,
     including an affidavit or a statement signed under the penalty of perjury showing
     good cause for the delay. PFR File, Tab 2. The respondent filed a motion signed
     under the penalty of perjury wherein she repeated her claim that, having reviewed
     Respondent Coffman’s decision as issued by the administrative law judge, she
     knows that none of the senior executive leaders involved in the case had been
     held accountable for their role/actions, and that she was not a willing participant
     in the actions that led to a violation of the merit systems principles. PFR File,
     Tab 4 at 2. The petitioner has responded, urging that the petition for review be
     dismissed as untimely filed with no showing of good cause. PFR File, Tab 5.

                                          ANALYSIS
¶4         To be timely, a petition for review must be filed within 35 days after the
     issuance of the initial decision, or, if the respondent shows that the initial
     decision was received more than 5 days after it was issued, within 30 days after
     the date the respondent received the initial decision.          5 C.F.R. §§ 1201.113,


     4
       The respondent was represented by counsel from the outset of this matter up to and
     including the signing of the settlement agreement. IAF, Tabs 5, 8. In a November 27,
     2015 letter, the respondent’s representative below stated that he was unaware that the
     respondent had filed a petition for review and he no longer represented her. Petition for
     Review File, Tab 3.
                                                                                    4

     114(d).   Although the respondent acknowledges that she received the initial
     decision in a timely fashion, PFR File, Tab 4 at 2, she nonetheless filed her
     petition for review on November 4, 2015, more than a year after the deadline for
     filing a petition for review.
¶5         The Board will waive its filing deadline only upon a showing of good cause
     for the filing delay.   5 C.F.R. § 1201.114(f).   To establish good cause for an
     untimely filing, a party must show that she 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).        More specifically, to determine
     whether a respondent has shown good cause, the Board will consider the length of
     the delay, the reasonableness of her excuse and her showing of due diligence,
     whether she is proceeding pro se, and whether she has presented evidence of the
     existence of circumstances beyond her control that affected her ability to comply
     with the time limits or of unavoidable casualty or misfortune which similarly
     shows a causal relationship to her inability to timely file her 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         Here, the initial decision expressly advised the respondent, in plain
     language, of the time limit and procedures regarding obtaining Board review. ID
     at 4. The respondent’s failure to file her petition for review with the Board in
     accordance with those unambiguous instructions constitutes a failure to exercise
     due diligence or ordinary prudence.      See Fredrick v. Department of Justice,
     76 M.S.P.R. 477, 480 (1997).
¶7         However, the respondent’s argument on review is more akin to a claim of
     new evidence.     Where an initial decision dismisses the case as settled, newly
     discovered evidence may constitute good cause for the untimely filing of a
     petition for review, if the newly discovered evidence established that the
     settlement agreement was invalid. Dickson v. General Services Administration,
     85 M.S.P.R. 7, ¶ 6 (1999), aff’d, 243 F.3d 566 (Fed. Cir. 2000) (Table).
                                                                                      5

¶8          While the decision in Respondent Coffman’s case is arguably new evidence
      in that it was not issued until October 6, 2015, the respondent has not shown that
      it establishes that the settlement agreement was invalid.        Rather, she has
      essentially expressed buyer’s remorse or after-the-fact dissatisfaction with the
      terms of the settlement agreement. It is well settled that claimed dissatisfaction
      with the terms of a settlement agreement does not constitute good cause for a
      filing delay. Cooper v. U.S. Postal Service, 104 M.S.P.R. 674, ¶ 7 (2007). In this
      case, although the respondent is now unhappy with the agreement, suggesting
      perhaps that she might have fared better had she litigated her case, she has not
      shown how the circumstances surrounding the settlement agreement interfered
      with her ability to file a timely petition for review. Id.
¶9          Accordingly, we dismiss the petition for review as untimely filed without
      good cause shown.

                                             ORDER
¶10         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 dismissal as settled of the Office of Special
      Counsel’s complaint against the respondent.

                         NOTICE TO THE RESPONDENT 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,
                                                                                  6

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 U.S. 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 U.S. 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 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.
