                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LYNN M. DAVIS,                                  DOCKET NUMBER
                         Appellant,                  SF-0432-12-0763-I-1

                  v.

     SOCIAL SECURITY                                 DATE: September 29, 2014
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Keith Goffney, Esquire, Los Angeles, California, for the appellant.

           Carolyn Beth Chen, San Francisco, California, 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
     affirmed the agency’s removal action.        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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         Effective August 10, 2012, the agency removed the appellant based on
     alleged unacceptable performance in her position as a Legal Assistant, Case
     Technician. Initial Appeal File (IAF), Tab 5, Subtab 4a at 3. On September 6,
     2012, the appellant filed a Board appeal alleging, among other things, that the
     agency’s allegations regarding her performance were false and that the agency
     removed her in reprisal for her prior equal employment opportunity activity. IAF,
     Tab 1 at 1, 3.
¶3         On August 19, 2013, the administrative judge issued an initial decision
     affirming the agency’s removal action. IAF, Tab 49, Initial Decision (ID). He
     found that the agency met its burden of showing that the appellant’s performance
     was unacceptable and that the appellant failed to meet her burden of proof on her
     affirmative defense of retaliation. ID at 12-27, 28-30. The administrative judge
     noted that the initial decision would become final unless a petition for review was
     filed by September 23, 2013. ID at 30.
¶4         On September 23, 2013, the appellant filed a motion for an extension of
     time to file her petition for review. Petition for Review File (PFR File), Tab 1.
     The Office of the Clerk of the Board granted the appellant’s request and provided
     the appellant until October 23, 2013, to file her petition for review. PFR File,
     Tab 2.   On October 23, 2013, the appellant filed an additional request for an
     extension of time to file her petition for review, PFR File, Tab 3, which the Clerk
     granted until November 27, 2013, PFR File, Tab 4. On November 27, 2013, the
     appellant filed a third motion for an extension of time, PFR File, Tab 5, which the
     Clerk granted until December 27, 2013, PFR File, Tab 6. On December 27, 2013,
     the appellant requested a fourth extension of time to file her petition for review.
     PFR File, Tab 7.    The Clerk granted the appellant’s request until January 27,
     2014, and advised the appellant’s representative, who had filed each of the
     previous requests and also represented the appellant below, that the Board would
     not grant any further extensions in the matter. PFR File, Tab 8; IAF, Tab 1 at 7.
                                                                                          3

¶5        On January 28, 2014, 1 day after the deadline established by the Clerk, the
     appellant filed a petition for review via U.S. mail. PFR File, Tab 9. Because the
     petition for review was more than 30 pages long, the Clerk rejected the pleading
     and, by notice dated February 4, 2014, provided the appellant an opportunity to
     perfect her pleading by February 24, 2014. Id. The Clerk additionally informed
     the appellant that the Board may dismiss her petition for review as untimely filed
     unless she submitted a motion showing that her petition for review was timely
     filed or that good cause existed for the filing delay. Id. The Clerk enclosed with
     the notice a “Motion to Accept Filing as Timely and/or to Ask the Board to Waive
     or Set Aside the Time Limit.” Id. The Clerk’s notice afforded the appellant until
     February 24, 2014, to file that motion. Id.
¶6        On February 24, 2014, the appellant filed a perfected petition for review.
     PFR File, Tab 10. On February 25, 2014, 1 day after the deadline established by
     the Clerk, the appellant filed a motion to accept the petition for review as timely
     filed. PFR File, Tab 12 (see postmarked envelope at back of tab). In the motion,
     the appellant’s representative claims that his local post office closed unexpectedly
     early on January 27, 2014, the due date for the petition for review, which
     prompted him to use Federal Express instead to mail the pleading. Id. at 1. He
     attaches a Federal Express order form dated January 27, 2014.           Id. at 5.   He
     does not attempt to explain the untimely filing of the motion itself.
¶7         On March 17, 2014, the agency filed a request for an extension of time to
     file its response to the appellant’s petition for review, which the Clerk granted
     until April 21, 2014.   PFR File, Tabs 14-16.      On April 21, 2014, the agency
     timely filed its response. PFR File, Tab 17. After the deadline to file a reply, the
     appellant requested an extension of time to file her reply to the agency’s
     response, PFR File, Tab 21, which the Clerk denied, PFR File, Tab 22. Despite
     the denial, the appellant filed a reply to the agency’s response, which we have not
     considered. PFR File, Tab 23.
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                         DISCUSSION OF ARGUMENTS ON REVIEW
¶8             Upon receipt of the appellant’s fourth request for an extension of time, the
      Clerk granted the appellant until January 27, 2014, to file her petition for review.
      PFR File, Tabs 7-8. The appellant did not file her petition for review, however,
      until January 28, 2014.       PFR File, Tab 9; see 5 C.F.R. § 1201.4(l) (when a
      document is filed with the Board by mail, the postmark date is the filing date). In
      an untimely-filed motion, the appellant asks that the Board accept her petition for
      review as timely filed. PFR File, Tab 12. The appellant’s representative claims
      in a sworn statement that, because his local post office closed unexpectedly early
      on the day the filing was due, he deposited the package for delivery with Federal
      Express instead. Id. at 3.
¶9             Even if we were to consider the appellant’s late-filed motion, the appellant
      has failed to meet her burden of showing that her petition for review was timely
      filed.    5 C.F.R. § 1201.56(a)(2)(ii).   Although the appellant attaches a Federal
      Express order form dated January 27, 2014, there is no indication on the form that
      the order was processed for delivery by Federal Express either that day or any
      day. PFR File, Tab 12 at 5. In addition, the appellant has not attached a receipt,
      a tracking report, or any other form from Federal Express to show that the
      appellant indeed deposited her petition for review with Federal Express for
      delivery before the filing deadline. Finally, and significantly, nothing contained
      in the appellant’s submission adequately explains the reason her petition for
      review had a January 28, 2014 postmark from the U.S. Postal Service if she
      submitted the petition for review for delivery to the Board to Federal Express on
      January 27, 2014. Id. at 1, 3.
¶10            Statements made under the penalty of perjury are entitled to little weight if
      they are inherently incredible or if they are disputed or rebutted by other
      evidence. See Price v. U.S. Postal Service, 98 M.S.P.R. 25, ¶ 9 (2004), aff’d,
      137 F. App’x 335 (Fed. Cir. 2005).         Here, considering the evidence presently
      before us, the appellant’s representative’s assertion that he mailed the petition for
                                                                                       5

      review via Federal Express on January 27, 2014, simply is not credible.
      Accordingly, we find that the appellant has failed to establish that she filed a
      timely petition for review. Cf. Raphel v. Department of the Army, 50 M.S.P.R.
      614, 618 (1991) (a party may establish that his pleading was timely filed by
      presenting credible, unrebutted evidence in the form of an affidavit or sworn
      statement that, despite the postmark date, the pleading was actually placed in the
      U.S. Postal Service mail stream before the filing deadline).
¶11        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. §§ 1201.113(d),
      1201.114(f).   The party who submits an untimely petition for review has the
      burden of establishing good cause for the untimely filing by showing that she
      exercised due diligence or ordinary prudence under the particular circumstances
      of the case. Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014).
      To determine whether a party has shown good cause, the Board will consider the
      length of the delay, the reasonableness of the excuse, and the party’s 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).
¶12        Here, the appellant alleges that the local post office closed unexpectedly
      early on January 27, 2014. PFR File, Tab 12 at 1, 3. However, when an appellant
      delays the filing of her petition for review until the eleventh hour, the appellant
      bears the risk that unforeseen circumstances could prevent the timely filing of her
      petition. Baker v. Department of Justice, 41 M.S.P.R. 25, 27 (1989). Also, given
      that she filed an untimely petition for review after receiving numerous extensions
      of time to do so, and that she filed an untimely motion to accept her petition for
      review as timely filed, we find that the appellant has not demonstrated that she
                                                                                      6

      exercised due diligence or ordinary prudence in the matter.          See Palermo,
      120 M.S.P.R. 694, ¶¶ 6-9. Further, although the appellant’s 1-day filing delay
      was minimal, see Coleman v. Department of the Treasury, 88 M.S.P.R. 266, ¶ 8
      (2001), she must nevertheless show good cause for the delay in order for the
      Board to waive the filing deadline, see Beckley v. U.S. Postal Service,
      43 M.S.P.R. 397, 399 (1990). Based on the foregoing, we find that the appellant
      has not shown good cause for the filing delay.
¶13        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 the removal appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).      If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

           If you submit your request via commercial delivery or by a method
      requiring a signature, it must be addressed to:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                     131 M Street, NE
                                       Suite 5SW12G
                                 Washington, D.C. 20507
                                                                                    7

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.       See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
