                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DOROTHY STEWART,                                DOCKET NUMBER
                 Appellant,                          PH-0752-13-0132-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: July 29, 2015
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.

           Miriam Dole, Philadelphia, Pennsylvania, 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 her appeal of an alleged constructive suspension in part as precluded by
     a settlement agreement and in part for lack of jurisdiction. For the reasons set
     forth below, the appellant’s petition for review is DISMISSED as untimely filed



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


     without good cause shown. 5 C.F.R. § 1201.114(e), (g).
¶2         On October 28, 2014, the chief administrative judge issued an initial
     decision that dismissed the appellant’s appeal. Upon the appellant’s request, the
     Clerk of the Board granted an extension of time until January 2, 2015, to file a
     petition for review. Petition for Review (PFR) File, Tab 2. On January 28, 2015,
     the Board received a petition for review which was mailed in an envelope with a
     postage meter mark dated January 2, 2015, but no postmark. PFR File, Tab 3.
     The agency thereafter filed a motion to dismiss the petition for review as
     untimely filed and the appellant filed a response to the agency’s motion. 2 PFR
     File, Tabs 7, 11.
¶3         The Board will waive its filing deadline only upon a showing of good cause
     for the delay in filing.    5 C.F.R. §§ 1201.12, 1201.114(g).        To establish good
     cause for the untimely filing of a petition for review, a party must show that she
     exercised due diligence or ordinary prudence under the particular circumstances
     of the case. Harrison v. Office of Personnel Management, 114 M.S.P.R. 453, ¶ 5
     (2010) (citing Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184
     (1980)).   To determine if an appellant 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


     2
        The agency has moved for leave to submit additional evidence on timeliness and to
     reply to the appellant’s response to its motion to dismiss. PFR File, Tab 14. In its
     motion, the agency asserts that the bar code on the envelope in which the appellant
     mailed her reply to the agency’s response to her petition for review, see PFR File,
     Tab 12, showed that this pleading was not actually filed until several days after the date
     on the postage meter mark and certificate of service, and was also untimely filed, PFR
     File, Tab 14 at 4-5. In light of our disposition of this appeal, the agency’s motion for
     leave to file an additional pleading is DENIED.
                                                                                       3


     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).
¶4        The agency contends that the appellant filed her petition for review on
     January 21, 2015, which, if true, would mean that her petition for review was
     untimely, according to the extension of time granted by the Clerk, by nearly
     3 weeks. The agency’s representative alleges that she received the appellant’s
     petition for review on January 23, 2015.      PFR File, Tab 7 at 4.     While this
     statement is not sworn, it is consistent with the date the Board received the
     petition for review. The discrepancy between the date on the postage meter mark 3
     and the date of receipt prompted the agency’s counsel to investigate. The bottom
     of the envelopes containing both the agency’s and the Board’s copies of the
     appellant’s petition for review contain a sticker with a bar code and the agency
     presented evidence that the bar codes show that the petition for review did not
     enter the mail stream until January 21, 2015. See id. at 31-32.
¶5        The agency’s evidence is unrebutted.       The appellant offers no evidence
     showing when she filed the petition for review other than the date on the postage
     meter mark.    In fact, in her response to the agency’s motion, although the
     appellant responded to each numbered paragraph of the agency’s motion in
     corresponding numbered paragraphs, she omitted any response to the paragraph in
     which the agency’s representative stated that the petition for review entered the
     mail stream on January 21, 2015.       See PFR File, Tab 11 at 2-3.       We find,
     therefore, that the appellant’s petition for review was untimely filed on
     January 21, 2015. We further note that the appellant offers no explanation for the
     discrepancy between the date on the postage meter mark and the evidence
     showing that the petition for review was not actually filed until January 21, and
     she does not explain why she was unable, for reasons beyond her control despite


     3
      The agency presented unrebutted evidence that the postage meter mark was generated
     by a postage meter registered to the appellant’s attorney. PFR File, Tab 7 at 30-31.
                                                                                              4


     her due diligence, to meet the Clerk’s deadline of January 2, 2015. In the absence
     of any explanation for the delay in filing, we find that she has failed to show good
     cause for the untimeliness of her petition for review.
¶6         Accordingly, we dismiss the petition for review as untimely filed. This is
     the final decision of the Merit Systems Protection Board regarding the timeliness
     of the petition for review. 4 The initial decision remains the final decision of the
     Board regarding the dismissal of her constructive suspension appeal.

                          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).



     4
       The administrative judge provided the appellant with notice of mixed-case appeal
     rights in the initial decision. This was error, but it does not constitute reversible error
     because we notify the appellant of her proper appeal rights in this Final Order. Because
     the administrative judge dismissed the appellant’s claims for lack of jurisdiction, we
     have provided the appellant with notice of her appeal rights to the U.S. Court of
     Appeals for the Federal Circuit. See Kloeckner v. Solis, 133 S. Ct. 596 (2012);
     Conforto v. Merit Systems Protection Board, 713 F.3d 1111 (Fed. Cir. 2013);
     Cunningham v. Department of the Army, 119 M.S.P.R. 147 (2013).
                                                                                       5


¶7        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
     United States 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.
