                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SHERRY SPOONER,                                 DOCKET NUMBER
                  Appellant,                         DC-315H-14-0105-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: March 31, 2015
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Rani Rolston, Washington, D.C., for the appellant.

           Jason Laeser, Esquire, Springfield, Virginia, 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 probationary termination appeal for lack of jurisdiction. 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).



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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


                                         BACKGROUND
¶2        Effective October 21, 2012, the agency awarded the appellant a career
     conditional appointment to the competitive service position of Import/Export
     Specialist, subject to a 1-year initial probationary period.    Initial Appeal File
     (IAF), Tab 11 at 194. Effective October 17, 2013, the agency terminated the
     appellant for preappointment reasons. Id. at 182-93. The appellant filed a Board
     appeal and on January 31, 2014, the administrative judge issued an initial
     decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1, Tab 13, Initial
     Decision (ID) at 1, 6. The initial decision notified the appellant of her further
     review rights, including the deadline for filing a petition for review with the
     Board—March 7, 2014. ID at 6-10.
¶3        On March 2, 2014, the appellant requested an extension to file her petition
     for review until March 9, 2014. Petition for Review (PFR) File, Tab 1 at 4. The
     appellant’s request was granted, and the Clerk of the Board informed her that the
     filing deadline was extended to March 14, 2014. PFR File, Tab 2.
¶4        The appellant did not file her petition for review before that deadline.
     Rather, she waited more than 9 months and filed her petition on December 20,
     2014. PFR File, Tab 3. She explained that her petition for review was untimely
     for several reasons: first, it was based on new and material evidence in the form
     of a May 21, 2014 letter that she received from the Virginia Employment
     Commission denying her claim for unemployment compensation. Id. at 3, 30-31.
     Second, she appears to allege that she requested her “full investigative file” from
     the Office of Personnel Management (OPM), which she did not receive until
     December 2, 2014, and discovered at that time that “there was not a single
     document” from her employing agency included in the report. Id. at 5. Third, the
     appeal was untimely because the appellant lacked attorney representation during
     the filing period. Id. at 3, 5. Fourth, the appellant was in very difficult personal
     circumstances during this time, including the loss of her job and home, all of
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     which she said took an emotional toll on her and caused her to feel fatigued,
     unable to concentrate, depressed, sad, confused, and anxious. Id. at 5-6. The
     appellant stated that her problems were compounded by her attention deficit
     disorder—a diagnosis that she has had for 10 years. Id. at 6. She stated that she
     could provide medical records upon request. Id. The agency has filed a response
     to the petition for review, opposing it on both timeliness and substantive grounds.
     PFR File, Tab 4.
¶5         On December 29, 2014, the Clerk of the Board issued an acknowledgement
     letter, reminding the appellant that her petition for review was untimely filed and
     informing her that she must establish good cause for the untimely filing no later
     than January 13, 2015. PFR File, Tab 4 at 1-2. To assist the appellant, the Clerk
     of the Board attached a “Motion to Accept Filing as Timely or Waive Time
     Limit” form. Id. at 2, 7-8. The appellant did not respond to the acknowledgment
     letter.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶6         To determine whether an appellant has shown good cause for an untimely
     filing, 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). We have considered
     the timeliness arguments that the appellant submitted along with her petition for
     review, but we find that they do not provide a sufficient basis to waive the filing
     deadline. PFR File, Tab 3 at 4-6.
¶7         In this case, the appellant was proceeding pro se when she filed her petition
     for review, but we note that as late as March 7, 2014 (the original petition for
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     review deadline), she was still in discussions with the attorney who represented
     her below. PFR File, Tab 3 at 4. In fact, it was the appellant’s attorney who filed
     the March 2, 2014 motion for an extension of time. PFR File, Tab 1 at 5. We
     also find that the filing delay of 9 months was significant. See Parsons v. Social
     Security Administration, 89 M.S.P.R. 478, ¶ 11 (2001).
¶8        In addition, the appellant has not established that she acted with due
     diligence in filing her petition for review or that situations beyond her control
     prevented her from timely filing.    Assuming without finding that the May 21,
     2014 letter from the Virginia Employment Commission contained new and
     material evidence, the appellant presumably received this letter on May 26, 2014,
     see Cabarloc v. Department of Veterans Affairs, 110 M.S.P.R. 695, ¶ 7 (2009)
     (documents placed in the mail are presumed to be received in 5 days), yet she
     waited an additional 6 months to file her petition, see Blaske v. Department of the
     Navy, 76 M.S.P.R. 164, 169-70 (1997) (evidence submitted to show good cause
     for an untimely filing must address the entire period of the delay), aff’d,
     168 F.3d. 1322 (Fed. Cir. 1998) (Table).        Likewise, although the appellant
     received documents from OPM only 18 days before she filed her petition for
     review, PFR File, Tab 3 at 5, she has not explained why she was not able to
     obtain them any earlier. Nor has the appellant explained why she believes that
     the information she received from OPM would be material to the outcome of the
     appeal. See Okello v. Office of Personnel Management, 112 M.S.P.R. 563, ¶ 10
     (2009). Regarding the appellant’s pro se status, the Board has found that lack of
     representation generally does not constitute good cause for a filing delay. See
     Stewart v. Department of the Navy, 93 M.S.P.R. 147, ¶ 5 (2002); see also Barber
     v. Department of Agriculture, 63 M.S.P.R. 32, 34-35 (1994). Finally, regarding
     the appellant’s various claimed mental health conditions, the Clerk of the Board
     informed the appellant that to establish that an untimely filing was the result of an
     illness, she must: (1) identify the time period during which she suffered from the
                                                                                       5


     illness; (2) submit medical evidence showing that she suffered from the alleged
     illness during that time period; and (3) explain how the illness prevented her from
     timely filing her appeal or a request for an extension of time. IAF, Tab 5 at 7 n.1;
     see Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). We find that
     the appellant’s listing of various undocumented mental health conditions does not
     meet these standards. PFR File, Tab 3 at 5-6.
¶9        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 regarding jurisdiction.

                        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
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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 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.
