                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT L. HOLLAND,                              DOCKET NUMBER
                   Appellant,                        DC-0752-14-0562-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: October 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

           Omari O. Jackson, Esquire, Portsmouth, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 without good cause shown for the delay.
     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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous 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         In April 2014, the appellant, a WG-08 Shipfitter Helper at the agency’s
     Norfolk Naval Shipyard, filed this appeal of the agency’s September 2013 action,
     which placed him on an indefinite suspension for failure to meet a condition of
     his employment, i.e., his ineligibility to occupy a sensitive position.       Initial
     Appeal File (IAF), Tab 1, Tab 10 at 18, 20-24. The agency moved to dismiss the
     appeal as untimely because it was filed more than 6 months after the effective
     date of the appellant’s suspension.     IAF, Tab 4.     In her initial decision, the
     administrative judge found that the appeal was untimely filed without good cause
     shown for the delay. IAF, Tab 12, Initial Decision (ID).
¶3         In his timely-filed petition for review, the appellant reiterates his argument
     that the agency misrepresented the basis for his indefinite suspension, which
     improperly influenced him not to file a Board appeal of the agency’s action
     because he thought it would be futile. Petition for Review (PFR) File, Tab 1.
     Specifically, the appellant argues that, contrary to the agency’s assertions in the
     notice proposing his indefinite suspension, he had never been determined
     ineligible to occupy a sensitive position. Id. at 9. The appellant therefore asserts
     that this false information provided by the agency created a “domino effect”
                                                                                         3

     leading him to believe that he could not appeal the suspension because he already
     had been found ineligible to occupy a sensitive position. Id. at 10. He also notes
     that he was initially acting without an attorney.       Id. at 7.   The agency has
     responded in opposition to the petition for review. PFR File, Tab 3.
¶4         The appellant’s suspension became effective on September 27, 2013. IAF,
     Tab 10 at 18. With exceptions not applicable here, an appeal must be filed no
     later than 30 days after the effective date of the action being appealed.
     See 5 C.F.R. § 1201.22(b)(1). Thus, when the appellant filed his appeal on April
     3, 2014, IAF, Tab 1, it was more than 5 months late. 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.
     Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014).                  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 file his appeal. Id.
¶5         The administrative judge found that neither the appellant’s possible belief
     that he would not prevail nor his pro se status during the appeal period
     constituted good cause for the filing delay.      ID at 3-4.    We agree.    Lack of
     representation does not constitute good cause that would excuse an untimely
     filing. See McCoy v. U.S. Postal Service, 112 M.S.P.R. 256, ¶ 8 (2009), aff’d,
     360 F. App’x 132 (Fed. Cir. 2010). Additionally, if the appellant thought that the
     agency’s basis for suspension was not correct, then he could have filed a timely
     appeal. However, the fact that the appellant did not realize that he had grounds
     for an appeal does not constitute good cause for his untimely filing.             See
     Burkhalter v. Department of the Air Force, 50 M.S.P.R. 190, 192 (1991), aff’d,
     956 F. 2d 1173 (Fed. Cir. 1992) (Table); see also Olson v. Department of
                                                                                  4

Agriculture, 91 M.S.P.R. 525, ¶ 6 (2002) (finding that initial discouragement
about the likely outcome, discovery of new legal precedent after the expiration of
the filing deadline, and the fact that others may have successfully advanced an
argument that the appellant chose not to pursue do not, by themselves, constitute
good cause for untimely filing of a petition for review).         Accordingly, the
administrative judge properly dismissed the appeal as untimely filed without good
cause shown 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 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).
     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
                                                                                5

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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
