                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WILLARD E. MOORE, JR.,                          DOCKET NUMBER
                  Appellant,                         AT-1221-11-0978-W-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: January 9, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Willard E. Moore, Jr., Huntsville, Alabama, pro se.

           Kathryn R. Shelton, Redstone Arsenal, Alabama, 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 January 30, 2012 initial
     decision, which dismissed his individual right of action (IRA) appeal as settled.
     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).

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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        The appellant was employed by the agency as the Director of Emergency
     Services for the U.S. Army Garrison-Redstone. Initial Appeal File (IAF), Tab 4
     at 58. During the appellant’s probationary period, the agency suspended him for
     14 days without pay and reassigned him to a Supervisory Strategic Planning
     Specialist position, based upon charges of disrespectful behavior toward
     subordinates and use of inappropriate and offensive language during staff
     meetings. Id. at 58-59. Approximately 1 month later, the agency notified the
     appellant that he would be terminated from his Supervisory Strategic Planning
     Specialist position, based upon his failure to accept responsibility for his prior
     actions. Id. at 60-61. Prior to the effective date of his termination, the appellant
     resigned from his position. IAF, Tab 1 at 14.
¶3        The appellant filed a Board appeal, alleging that the agency had suspended
     him, reassigned him, and proposed his termination in retaliation for his protected
     whistleblowing activities. IAF, Tab 1 at 4, 6-11. On the date that the hearing
     requested by the appellant was originally scheduled to occur, the parties entered
     into a settlement agreement. IAF, Tab 1 at 2, Tab 17 at 1, Tab 27 at 4-6. In the
     agreement, the agency agreed to pay the appellant’s counsel up to $10,000.00 for
     attorney fees and expenses. IAF, Tab 27 at 5.
¶4        On January 30, 2012, the administrative judge issued an initial decision
     dismissing the appeal as settled and accepting the settlement agreement into the
     record for enforcement purposes.      IAF, Tab 28, Initial Decision (ID).       The
     administrative judge informed the parties that the initial decision would become
     final on March 5, 2012, unless a petition for review were filed by that date. ID at
     2.
¶5        On August 6, 2014, the appellant, proceeding pro se, filed a pleading
     entitled “Request to Vacate Initial Decision per Settlement Agreement,” in which
     he asserts that he had agreed to settle his appeal based upon improper advice from
     his former counsel. Petition for Review (PFR) File, Tab 1 at 1, 12. He claims
                                                                                        3

     that his former counsel had advised him that the administrative judge rarely ruled
     in favor of appellants, that it was unlikely that he would prevail in his appeal, and
     that her fee for moving forward to a hearing was $15,000.00.          Id. at 12.   In
     addition, he argues that the fact that the agency had offered to pay attorney fees
     in settlement indicated that his former counsel was motivated by self-interest
     when she advised him to settle. Id. Finally, he asserts that two of his witnesses
     were intimidated at the time he settled his appeal but are now in situations in
     which they were shielded from “intimidation and reprisal.” PFR File, Tab 5 at 5.
¶6         The Clerk of the Board informed the appellant that the Board considered his
     filing to be a petition for review, which appeared to be untimely, and advised the
     appellant that he could file a motion for waiver of the filing time limit. PFR File,
     Tab 2 at 1-2.    The Clerk attached a blank form “Motion to Accept Filing as
     Timely and/or to Ask the Board to Waive or Set Aside the Time Limit” to the
     notice. Id. at 7-8. In response to the Clerk’s notice, the appellant submitted a
     motion for waiver, which was signed under penalty of perjury. PFR File, Tab 3.
     The agency has not responded to the appellant’s filings.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶7         An attack on the validity of a settlement agreement must be made in the
     form of a petition for review of the initial decision dismissing the case as settled.
     Hazelton v. Department of Veterans Affairs, 112 M.S.P.R. 357, ¶ 8 (2009). The
     Board’s regulations provide that a petition for review must be filed within 35
     days after the date of issuance of the initial decision or, if the appellant shows
     that he received the initial decision more than 5 days after it was issued, within
     30 days after the date that the appellant received the initial decision. 5 C.F.R.
     § 1201.114(e). Here, the initial decision was issued on January 30, 2012, and the
     appellant does not allege that he received the initial decision more than 5 days
     after its issuance date. ID at 1; PFR File, Tabs 1, 5. Accordingly, the appellant’s
                                                                                      4

     August 6, 2014 petition for review, which was due no later than March 5, 2012,
     was untimely by 2 years and 5 months. See ID at 2.
¶8        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 for the untimely filing of a petition, the appellant must
     demonstrate that he exercised due diligence or ordinary prudence under the
     particular circumstances of his case.     See Alonzo v. Department of the Air
     Force, 4 M.S.P.R. 180, 184 (1980) (setting forth this rule in the context of filing
     an initial appeal). 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. 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).
¶9        Applying these factors, we find that the appellant has not shown good cause
     for his filing delay in this case. Although the appellant is now pro se, his filing
     delay of 2 years and 5 months is substantial.        See Lobell v. Department of
     Agriculture, 98 M.S.P.R. 582, ¶ 5 (2005) (finding a 2-year delay to be substantial,
     despite an appellant’s pro se status).   In his motion for waiver, the appellant
     asserts that his petition for review was untimely because he was depressed and
     mentally exhausted after he entered into the settlement agreement. PFR File, Tab
     5 at 5. To establish that an untimely filing was the result of a mental or physical
     illness, the appellant must: (1) identify the time period during which he suffered
     from the illness; (2) submit medical evidence showing that he suffered from the
     alleged illness during that time period; and (3) explain how the illness prevented
     him from timely filing his petition for review or requesting an extension of time.
     See Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998) (setting forth
                                                                                             5

      this rule in the context of an untimely filed initial appeal). The appellant was
      notified of these requirements in the blank form “Motion to Accept Filing as
      Timely and/or to Ask the Board to Waive or Set Aside the Time Limit” attached
      to the Clerk’s notice. PFR File, Tab 2 at 7 n.1. However, the appellant has not
      identified the duration of his alleged depression and mental exhaustion, has not
      provided any medical documentation in support of his alleged conditions, and has
      not explained how his conditions prevented him from filing a petition for review
      or requesting an extension of time. See PFR File, Tab 5 at 5. Accordingly, the
      appellant’s claims of mental exhaustion and depression do not establish good
      cause for his untimely filing. See Davis v. U.S. Postal Service, 101 M.S.P.R. 107,
      ¶ 6 (where an appellant failed to explain how his depression caused his filing
      delay or submit any medical documentation in support of his condition, he did not
      establish good cause for the untimely filing of his petition for review), aff’d,
      192 F. App’x. 966 (Fed. Cir. 2006).
¶10         The appellant further asserts that his petition for review was untimely
      because he left the United States for employment in the Middle East in “late
      2012,” and did not return until July 2014. PFR File, Tab 5 at 5. The appellant
      has not supported this assertion with any documentation, and has not described
      the nature or conditions of his employment in the Middle East, or explained how
      they prevented him from filing his petition for review. 2         Id.   However, even
      assuming that employment in the Middle East could establish good cause for an
      untimely filing, the initial decision became final on March 5, 2012, several
      months before the appellant alleges that he departed for the Middle East. PFR
      2
        If the appellant were performing active duty military service in the Middle East, as
      opposed to civilian employment, under the Servicemembers’ Civil Relief Act of 2003
      (SCRA), the deadline for filing his petition for review would be tolled for the period of
      his military service. 50 U.S.C. app. §§ 511(2)(A)(i), 526(a); see Brown v. U.S. Postal
      Service, 106 M.S.P.R. 12, ¶ 12 (2007) (applying the SCRA tolling provision to Board
      proceedings). However, the appellant has not alleged that he performed military service
      between the date that the initial decision was issued and the date that he filed his
      petition for review. See PFR File, Tab 5 at 5.
                                                                                         6

      File, Tab 5 at 5; ID at 2. The appellant has not established good cause for his
      failure to timely file his petition for review or request an extension of time either
      before the initial decision became final or before he left the United States. See
      Gethers v. Department of the Navy, 59 M.S.P.R. 196, 197-98 (1993) (the fact that
      an appellant was out of town did not establish good cause for his filing delay
      where he failed to explain why he was unable to file his petition for review or
      request an extension of time prior to his departure).
¶11         The appellant also claims that in early August 2014, he learned that two key
      witnesses in his appeal, the Deputy Garrison Commander and Garrison
      Commander, were “now in situations that effectively shielded them from
      intimidation and reprisal.” PFR File, Tab 5 at 5. To the extent that the appellant
      contends that the testimony of the Deputy Garrison Commander and Garrison
      Commander constitutes new and material evidence, this assertion fails to
      establish a basis for waiving the filing deadline. The discovery of new evidence
      may constitute good cause for waiver of the filing deadline if the evidence is
      material, was not previously available despite the party’s due diligence, and is of
      sufficient weight to warrant an outcome different from that of the initial decision.
      Lybrook v. Department of the Navy, 51 M.S.P.R. 241, 244 (1991).            Here, the
      record indicates that the appellant intended to call the Deputy Garrison
      Commander and Garrison Commander to testify as witnesses at the hearing but
      did not do so because the parties settled the appeal prior to the hearing. See IAF,
      Tab 4 at 13 (identifying the Deputy Garrison Commander and Garrison
      Commander), Tab 18 at 7, 9 (listing the Deputy Garrison Commander and
      Garrison Commander as witnesses). The appellant has not identified any new or
      different information that these individuals would provide now that they are
      allegedly shielded from intimidation and reprisal.      See PFR File, Tab 5 at 5
      (describing the anticipated testimony of appellant’s witnesses in his motion for
      waiver); IAF, Tab 18 at 7, 9 (describing the appellant’s anticipated testimony
      from Deputy Garrison Commander and Garrison Commander in his prehearing
                                                                                         7

      submissions).   Thus, the testimony of the Deputy Garrison Commander and
      Garrison Commander is not new evidence because the appellant was aware of its
      existence before the record closed below. See McCarthy v. Department of the Air
      Force, 56 M.S.P.R. 475, 477-78 (finding that the testimony of a witness
      scheduled to testify at hearing before an appeal settled and who the appellant
      alleged was threatened by the agency was not new and material evidence),
      aff’d, 11 F.3d 1072 (Fed. Cir. 1993).
¶12         Finally, the appellant presents several arguments regarding the merits of his
      appeal. PFR File, Tab 5 at 5. However, arguments regarding the merits of an
      appeal are irrelevant to the issue of whether the appellant has shown good cause
      for the untimeliness of his petition for review. Ferguson v. Department of the Air
      Force, 105 M.S.P.R. 301, ¶ 7 (2007).
¶13         Because we find that the petition for review was untimely, we decline to
      adjudicate the appellant’s claims that the settlement agreement is invalid. See
      Rufus v. U.S. Postal Service, 50 M.S.P.R. 62, 63-65 (1991) (declining to reach
      allegations that the appellant was coerced into entering a settlement by her
      representative’s statements in light of the untimeliness of her petition for review).
      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. The initial decision remains the final decision of the
      Board with regard to the dismissal of the 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.
            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
                                                                                        8

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 want to request review of the Board’s decision concerning your
claims     of   prohibited   personnel      practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.     Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
         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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective           websites,           which            can         be         accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         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
                                                                               9

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 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.
