                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH WILBUR, JR.,                             DOCKET NUMBER
                  Appellant,                         AT-1221-13-0881-W-2

                  v.

     DEPARTMENT OF LABOR,                            DATE: September 2, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joseph Wilbur, Jr., Daphne, Alabama, pro se.

           Charna C. Hollingsworth-Malone, Esquire, and Yasmin Kimberly Yanthis‑
             Bailey, Esquire, Atlanta, Georgia, 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 his appeal 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).

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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           On July 11, 2013, the appellant filed an individual right of action (IRA)
     appeal asserting that he experienced retaliation for whistleblowing in his former
     position as an Occupational Safety and Health Administration Inspector in
     Mobile, Alabama. Wilbur v. Department of Labor, MSPB Docket No. AT-1221-
     13-0881-W-1, Initial Appeal File (W‑1 IAF), Tab 1 at 1, 3.             The appeal was
     dismissed without prejudice on March 17, 2014, at the appellant’s request.
     W-1 IAF, Tab 23.       The appellant refiled the appeal on July 7, 2014.          MSPB
     Docket No. AT-1221-13-0881-W-2, Refiled Appeal File (RAF), Tab 1.
¶3           The administrative judge scheduled a status conference for October 28,
     2014. RAF, Tab 5. The appellant failed to participate in the conference, and he
     did not contact the administrative judge to request an alternate date. RAF, Tab 6
     at 1-2, Tab 8, Initial Decision (ID) at 2.          The agency representatives told the
     administrative judge that they had served the appellant with written discovery
     requests, but their calls and emails about the discovery had gone unanswered.
     RAF, Tab 6 at 2.      On October 29, 2014, the administrative judge ordered the
     appellant to provide within 7 calendar days a written explanation for his lack of
     participation in the status conference. Id. The order specifically stated that the
     administrative judge could impose sanctions if the appellant failed to show good
     cause    for   his   nonparticipation    in   the    conference.    Id.;   see   5 C.F.R.
     § 1201.43. The order also provided the appellant with the requisite notice of the
     Board’s jurisdictional standard for IRA appeals. RAF, Tab 6 at 2-6.
¶4           After the appellant did not respond, the administrative judge issued a
     Second Order to Show Cause.             RAF, Tab 7.      The November 26, 2014 order
     summarized the appellant’s failure to participate in the status conference, his
     subsequent failure to give good cause for nonparticipation, and his failure to
     submit a jurisdictional response. Id. The order explicitly stated that the appellant
     appeared to have “opted to abandon the appeal” and gave him 10 calendar days in
     which to provide the responses required by the October 29, 2014 order. Id. If he
                                                                                       3

     failed to provide these responses, the administrative judge explained, “his appeal
     [would] be dismissed with prejudice under 5 C.F.R. § 1201.43(b) based on his
     failure to prosecute it.”      RAF, Tab 7.    The appellant’s response was due
     December 6, 2014.        Id.   He did not respond.   On December 11, 2014, the
     administrative judge issued an initial decision dismissing the appeal for failure to
     prosecute. ID at 4. The initial decision became final on January 15, 2015. Id.
¶5          The appellant attempted to again refile his appeal with the regional office
     on March 17, 2016, which the administrative judge forwarded to the Board as a
     petition for review of the December 2014 decision. 2 Petition for Review (PFR)
     File, Tab 1, Tab 2 at 1.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶6          The petition for review is filed late by more than 1 year and 3 months. The
     Board’s regulations require a petition for review to be filed within 35 days after
     the initial decision is issued; or, if a party shows that he received the initial
     decision more than 5 days after issuance, within 30 days after receiving
     it.   5 C.F.R. § 1201.114(e).    The Board will excuse the untimely filing of a
     petition for review only upon a showing of good cause for the delay. 5 C.F.R.
     § 1201.114(g). An untimely filed petition for review must be accompanied by a
     motion that shows good cause for the delay in filing and an affidavit or sworn
     statement that includes a specific and detailed description of the circumstances
     causing the delay. Id.
¶7          Here, the Clerk of the Board acknowledged receiving the petition for review
     and informed the appellant that:      (1) the petition was untimely filed; (2) the
     Board’s regulations require that a petition that appears to be untimely filed be
     accompanied by a motion to accept the filing as timely and/or to waive the time

     2
      The appellant’s attempt to refile was initially docketed as Wilbur v. Department of
     Labor, MSPB Docket No. AT-1221-13-0881-W-3, before it was recognized as a
     Petition for Review of the earlier decision.
                                                                                         4

     limit for good cause; (3) such a motion must be supported by an affidavit or
     declaration made under penalty of perjury showing either that the petition was
     timely filed or that there is good cause for the late filing; and (4) the Board may
     dismiss the petition for review as untimely if the appellant did not provide a
     motion with an affidavit or declaration. PFR File, Tab 2 at 2.
¶8         The appellant filed a motion for the Board to waive the filing deadline for
     good cause shown. PFR File, Tab 3. He asserts that he was unable to respond to
     the initial decision in a timely fashion because a backlog of mail awaited him
     when he returned from the military deployment he served from between
     February 3, 2015, and September 23, 2015. Id. at 4, 11-12. He asserts that the
     time for filing his appeal was extended under the Servicemembers Civil Relief
     Act (SCRA), 50 U.S.C. § 3936(a). PFR File, Tab 3 at 4. He also asserts that,
     although he did not report for active duty until February 3, 2015, he first learned
     of his upcoming deployment on November 12, 2014, and that the Board should
     consider the period between November 12, 2014, and February 3, 2015, as part of
     his military obligation for tolling purposes. Id. at 5. He further asserts that he
     was unaware that the November 26, 2014 Second Order to Show Cause and the
     December 11, 2014 Initial Decision had been issued. Id. He explains that he had
     requested dismissal of the initial appeal in this case because he was awaiting
     results of an investigation related to his departure from the agency, 3 implying that
     he did not know that he had an active appeal in the regional office. Id. at 5-6.
     His motion also includes arguments addressing the merits of the appeal.            Id.
     at 6-9.
¶9         The motion, however, does not include the required affidavit or sworn
     statement. PFR File, Tab 3; 5 C.F.R. § 1201.114(g). Additionally, the merits of
     the appeal are not before the Board. Here, the Board need only consider whether
     3
       The appellant resigned from the agency, but had filed a whistleblower complaint with
     the Office of Special Counsel and an equal employment opportunity complaint with the
     agency’s Civil Rights Center. RAF, Tab 1 at 7, Tab 4 at 4-22.
                                                                                         5

      the appellant established good cause for the delay in filing his petition for review.
      To establish good cause for waiving the Board’s filing deadline, an 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). 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).
¶10         The appellant is pro se, but the delay was a lengthy one. The appellant
      cannot rely on the tolling provisions of the SCRA, as the initial decision was
      issued 54 days before the appellant reported for military duty. The appellant has
      identified no authority supporting his assertion that the tolling period would have
      commenced on November 12, 2014, when he received notice that he would be
      called to active duty. We were likewise unable to find any such authority. Even
      if the appellant could claim relief under the SCRA, his petition for review would
      have been due on October 23, 2015, as his deployment ended on September 23,
      2015. RAF, Tab 3 at 1-12; see 50 U.S.C. § 3936(a); Neighoff v. Department of
      Homeland Security, 122 M.S.P.R. 86, ¶¶ 6-10 (2015). He did not file the petition
      for review until March 17, 2016. PFR File, Tab 1 at 1.
¶11         We likewise do not find convincing the appellant’s claim that he was
      unaware he had an active case in the regional office because he had requested
      dismissal of his initial IRA appeal while he awaited the results of an agency
      investigation. He personally refiled the IRA appeal on July 7, 2014. RAF, Tab 1
      at 1. The appellant thus failed to establish the existence of circumstances beyond
      his control affecting his ability to comply with the time limits or of unavoidable
                                                                                        6

      casualty or misfortune which similarly shows a causal relationship to his inability
      to timely file his petition for review.    We dismiss the petition for review as
      untimely filed.
¶12        Even if the petition had been timely filed, we would not find that the
      administrative judge abused his discretion by dismissing the appeal for failure to
      prosecute.   Holland v. Department of Labor, 108 M.S.P.R. 599, ¶ 9 (2008)
      (holding that the Board will not reverse an administrative judge’s determination
      regarding sanctions absent a showing of abuse of discretion). Although sanctions
      should be imposed only when a party has failed to exercise basic due diligence in
      complying with Board orders or has exhibited negligence or bad faith in its
      efforts to comply, Chandler v. Department of the Navy, 87 M.S.P.R. 369, ¶ 6
      (2000), the Board has found that an appellant’s repeated failure to respond to
      multiple Board orders reflects a failure to exercise basic due diligence,
      Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶ 6 (2007).            The
      appellant missed a status conference and failed to respond to two jurisdictional
      orders. Even when served with an order explicitly advising him of the possibility
      of dismissal, he did not provide any explanation or justification for his failure to
      act. The record contains no evidence that the appellant was confused by Board
      proceedings or that he wanted to continue to pursue his appeal below. As stated
      above, the appellant’s refiling of his appeal on July 7, 2014, suggests that he
      knew that he had an active appeal in the regional office. Dismissal of the appeal
      for failure to prosecute, though extreme, serves the ends of justice.           See
      Heckman, 106 M.S.P.R. 210, ¶ 6.
¶13        This is the final decision of the Merit Systems Protection Board regarding
      the timeliness of the petition for review. The initial decision dismissing the IRA
      appeal for failure to prosecute remains the final decision of the Board.
                                                                                           7

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS 4
       You have the right to request review of this final decision by the U.S.
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
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 U.S. 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 U.S. 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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
4
  In the initial decision, the administrative judge provided the appellant with mixed-case
appeal rights. Based on the disposition of this case, such review rights are not appropriate.
Caros v. Department of Homeland Security, 122 M.S.P.R. 231, ¶ 22 (2015). The proper
appeal rights are provided here.
                                                                                 8

2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. 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:                              ______________________________
                                            Jennifer Everling
                                            Acting Clerk of the Board
Washington, D.C.
