                     UNITED STATES OF AMERICA
                  MERIT SYSTEMS PROTECTION BOARD


JIM A. DRYSDALE, 1                              DOCKET NUMBER
              Appellant,                        SF-0752-13-4334-I-1

             v.

DEPARTMENT OF THE ARMY,                         DATE: May 8, 2015
            Agency.



           THIS FINAL ORDER IS NO NPRECEDENTIAL 2

      Jim A. Drysdale, Sacramento, California, pro se.

      Jason DeRosa, Esquire, Portland, Oregon, for the agency.

      Annette B. Kuz, Esquire, San Francisco, California, for the agency.


                                         BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
 Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
Engineers/South Pacific Division v. Department of the Army, MSPB Docket No.
SF-0752-14-0285-I-1.
2
   A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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


                                         FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal with prejudice for failure to prosecute. For the reasons set
     forth below, the appellant’s petition for review is DISMISSED as untimely filed
     without good cause shown. 5 C.F.R. § 1201.114(e), (g).

                                         BACKGROUND
¶2        On June 4, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, a Geologist, that he would be furloughed for no more
     than 11 workdays due to “the extraordinary and serious budgetary challenges
     facing the Department of Defense (DoD) for the remainder of Fiscal Year (FY)
     2013, the most serious of which is the sequester that began on March 1, 2013.”
     Initial Appeal File (IAF), Tab 1 at 10-11. It does not appear that the appellant
     responded to the proposal notice.    By written notice dated June 24, 2013, the
     agency’s deciding official informed the appellant that he would be furloughed as
     outlined in the proposal notice. Id. at 13-15. The record includes a Standard
     Form 50 reflecting the appellant’s furlough, effective July 8, 2013, on
     discontinuous days between July 8, 2013, and September 30, 2013, and not to
     exceed a maximum of 88 hours during the furlough period. Id. at 7-9.
¶3        The appellant filed a Board appeal challenging the agency’s action but
     indicated that he did not want a hearing. Id. at 1-6. In a furlough procedures
     order, the administrative judge informed the appellant that his appeal had been
     consolidated with the appeals of similarly situated employees.           Corps of
     Engineers/South Pacific Division v. Department of the Army, MSPB Docket
     No. SF-0752-14-0285-I-1, Consolidated Appeal File, Tab 2. On July 21, 2014,
     the administrative judge issued an initial decision dismissing the appellant’s
     appeal with prejudice for failure to prosecute. IAF, Tab 6, Initial Decision (ID)
     at 1, 3. In particular, the administrative judge found that the appellant failed to
     exercise basic due diligence in prosecuting his appeal because he failed to appear
                                                                                       3


     for the scheduled status conference call, to submit a close of record submission or
     a response to the agency’s close of record submission, or to respond to the show
     cause order on the failure to prosecute issue. ID at 2. The administrative judge
     also informed the parties that the initial decision would become final if neither
     party filed a petition for review by August 25, 2014. ID at 3.
¶4        The appellant filed a petition for review on January 20, 2015. Petition for
     Review (PFR) File, Tab 1. The agency has not filed a response.

                          DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant has not established good cause for untimely filing his petition for
     review.
¶5        Generally, a petition for review must be filed within 35 days after the
     issuance of the initial decision, or, if the petitioner shows that he received the
     initial decision more than 5 days after the date of the issuance, within 30 days
     after the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
     administrative judge issued the initial decision on July 21, 2014, and the
     certificate of service reflects that the appellant received the initial decision
     through email on July 21, 2014. ID at 1; IAF, Tab 5. In the initial decision, the
     administrative judge informed the parties that the initial decision would become
     the Board’s final decision if neither party filed a petition for review by
     August 25, 2014. ID at 3; see 5 C.F.R. § 1201.113.
¶6        The appellant filed a petition for review on January 20, 2015, almost
     5 months past the initial decision’s finality date. PFR File, Tab 1. In his petition
     for review, he argues that the Board should find good cause for his untimely
     filing because he “lost track of the message where [the] deadline was apparent”
     and made an “honest oversight.”      Id. at 3.   In an acknowledgment letter, the
     Office of the Clerk of the Board informed the appellant that his petition for
     review was untimely filed and that he could file a motion with the Board to
                                                                                     4


     accept his filing as timely or to waive the time limit for good cause. PFR File,
     Tab 2. The appellant did not respond to the letter.
¶7        The Board will waive the time limit for filing a petition for review only
     upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
     establish good cause, the appellant 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 which similarly shows a
     causal relationship to his inability to timely file his petition for review.   See
     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).
¶8        We find that the appellant has not demonstrated good cause for his untimely
     petition for review. Although an appellant’s pro se status is a factor weighing in
     his favor, it is insufficient to excuse his untimeliness.     Allen v. Office of
     Personnel Management, 97 M.S.P.R. 665, ¶ 8 (2004). His nearly 5-month delay
     in filing his petition for review is significant. See, e.g., Dow v. Department of
     Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding a more than 1-month
     delay in filing a petition for review was significant).   Although the appellant
     mistakenly missed the filing deadline, his inexperience with legal matters and
     unfamiliarity with Board procedures do not warrant waiving the filing deadline.
     See Wallace v. Department of Veterans Affairs, 81 M.S.P.R. 88, ¶ 5, aff’d,
     217 F.3d 856 (Fed. Cir. 1999) (Table). The appellant received clear notice of the
     filing deadline in the initial decision.   See ID at 3.   Thus, we find that the
                                                                                  5


appellant has failed to show that he exercised due diligence or ordinary prudence
in this case that would justify waiving the filing deadline.

                   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 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
                                                                                6


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.
