                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES T. SLADE,                                 DOCKET NUMBER
                   Appellant,                        DE-0752-15-0536-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: February 24, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Raymond R. Aranza, Esquire, Omaha, Nebraska, for the appellant.

           Bradly Siskind, Esquire, Riverdale, Maryland, for the agency.

           Zachary L. Wright, Washington, D.C., 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 as untimely filed without good cause shown for the delay.
     Generally, we grant petitions such as this one only when: the initial decision
     contains erroneous findings of material fact; the initial decision is based on an

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the administrative judge’s rulings during either
     the course of the appeal or the initial decision were not consistent with required
     procedures or involved an abuse of discretion, and the resulting error affected the
     outcome of the case; or new and material evidence or legal argument is available
     that, despite the petitioner’s due diligence, was not available when the record
     closed. See title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, we conclude that
     the petitioner has not established any basis under section 1201.115 for granting
     the petition for review. Therefore, we DENY the petition for review. Except as
     MODIFIED to correct the effective date of the appellant’s removal, we AFFIRM
     the initial decision, which is now the Board’s final decision.            5 C.F.R.
     § 1201.113(b).

                                     BACKGROUND
¶2        By letter dated July 8, 2015, the agency informed the appellant that he
     would be removed effective July 11, 2015. Initial Appeal File (IAF), Tab 14 at
     23. The agency informed the appellant that if he wished to file a Board appeal,
     he needed to file it within 30 days after the effective date of the removal or his
     receipt of the decision, whichever was later. Id. at 29. The appellant’s attorney
     received the decision by email from the agency on July 9, 2015, IAF, Tab 10 at 8,
     and forwarded the decision to the appellant that same day, id. at 7. In his email
     forwarding the decision, the appellant’s attorney stated:     “Unfortunately, the
     Agency decided to terminate you effective July 11, 2015. We have 30 days to
     appeal to the MSPB.” Id. The appellant filed his appeal on August 18, 2015.
     IAF, Tab 1.
¶3        The administrative judge issued a timeliness order informing the appellant
     that his appeal appeared to be 8 days late and explaining the burden for
     establishing good cause for a filing delay. IAF, Tab 4. He ordered the appellant
                                                                                            3

     to file evidence and argument showing either that his appeal was timely filed or
     that good cause existed for the delay in filing. Id. at 3. The appellant submitted a
     response in which he acknowledged that his attorney received the letter of
     decision by email on July 9, 2015, and that the appellant personally received the
     decision by certified mail on July 13, 2015, but indicated that the attorney’s
     clerical staff accidentally recorded the deadline for filing the Board appeal as the
     45-day deadline for filing Equal Employment Opportunity Commission (EEOC)
     appeals as opposed to the 30-day deadline for filing Board appeals. IAF, Tab 10
     at 4-5. The appellant also asserted that he and his counsel did not know that the
     clerical staff made the error in recording the appeal deadline and that he relied on
     his counsel to file the appeal. Id. at 5. The agency responded in opposition to the
     appellant’s response to the timeliness order, asserting, inter alia, that prior to the
     filing deadline, the appellant should have contacted his representative, or filed the
     appeal himself, but he failed to do either. IAF, Tab 13 at 7.
¶4         The administrative judge dismissed the appeal as untimely filed without
     good cause shown for the delay. IAF, Tab 17, Initial Decision (ID). Specifically,
     he found that the appellant filed his appeal 8 days beyond the regulatory filing
     deadline and that, weighing the totality of the circumstances and considering the
     preponderance of the evidence, he failed to establish good cause for his untimely
     filing. ID at 2-6. The appellant has filed a timely petition for review. Petition
     for Review (PFR) File, Tab 1.            On review, he generally challenges the
     administrative judge’s finding that he did not exercise due diligence in filing his
     appeal and argues that the filing delay was not significant. 2 Id. The agency has
     responded in opposition to the appellant’s petition for review. PFR File, Tab 3.



     2
       The appellant challenges the administrative judge’s citation of a nonprecedential
     decision of the U.S. Court of Appeals for the Federal Circuit in support of his decision.
     PFR File, Tab 1; see ID at 3-5 (analogizing the current appeal to Skaggs v. Merit
     Systems Protection Board, 364 F. App’x 623, 626 (Fed. Cir. 2010) (nonprecedential)).
     We find no error in this respect because the Board has held that it may rely on
                                                                                          4

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         Applicable Board regulations provide that an appeal must be filed no later
     than 30 days after the effective date, if any, of the action being appealed, or
     30 days after the date of receipt of the agency’s decision, whichever is later.
     See 5 C.F.R. § 1201.22(b)(1). The agency indicated in its decision letter that the
     appellant’s removal would be effective July 11, 2015.           IAF, Tab 14 at 23.
     However, the Standard Form 50 documenting the removal indicates that it was
     actually effective 2 days later on July 13, 2015. 3 Id. at 22. By that later effective
     date, the appellant had received notice of the decision to remove him, both by
     email via his attorney and by certified mail.          IAF, Tab 10 at 7-8.         The
     administrative judge calculated the filing deadline using the July 11, 2015
     effective date set forth in the decision letter. ID at 2. However, because the
     agency actually did not remove the appellant until July 13, 2015, we modify the
     initial decision to find that the filing deadline was August 12, 2015, not August
     10, 2015, as the administrative judge found.         See 5 C.F.R. § 1201.22(b)(1).
     Accordingly, we find that the appellant’s August 18, 2015 appeal was filed 6 days
     after the filing deadline.
¶6         For the reasons discussed below, we agree with the administrative judge
     that the appellant did not show good cause for the filing delay. An untimely
     appeal will be dismissed unless the appellant establishes good cause for the delay.
     See 5 C.F.R. § 1201.22(c); see also Alonzo v. Department of the Air
     Force, 4 M.S.P.R. 180, 184 (1980). The appellant bears the burden of proving




     unpublished Federal Circuit decisions if, as here, it finds the court’s reasoning
     persuasive. Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 21 (2008).
     3
      Although there is no explanation in the record for the different effective dates, we
     note that July 11, 2015, the effective date set forth in the decision letter, fell on a
     Saturday.
                                                                                         5

     good cause for the delay by a preponderance of the evidence. 4              5 C.F.R.
     § 1201.56(b)(2)(i)(B).    To establish good cause for the untimely filing of an
     appeal, a party must show that he exercised due diligence or ordinary prudence
     under the particular circumstances of the case. Alonzo, 4 M.S.P.R. at 184. 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
     appeal.   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).
¶7         The administrative judge found that the brevity of the appellant’s filing
     delay weighed in favor of finding good cause, ID at 4, and we agree, particularly
     in light of our finding that the delay was actually only 6 days, rather than 8. The
     administrative judge also properly found, however, that both the appellant and his
     attorney were aware of the time limit, which not only was clearly set forth in the
     decision notice, but also was explicitly discussed by the appellant and his
     attorney via email.      ID at 4-5 (citing IAF, Tab 10 at 7); see Melendez v.
     Department of Homeland Security, 112 M.S.P.R. 51, ¶ 14 (2009) (holding that the
     Board will not excuse filing delays based on asserted confusion where the
     appellant has been placed on clear notice of a filing time limit). We also agree
     with the administrative judge that the error in calendaring a deadline did not
     constitute the exercise of due diligence or ordinary prudence. ID at 5 (citing




     4
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
                                                                                        6

Jones v. U.S. Postal Service, 110 M.S.P.R. 674 (2009)). 5           The administrative
judge was also correct in observing that the fact that the appellant was
represented by counsel weighed against a finding of good cause. ID at 5; see
Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 11 (2014).               We also
agree with the administrative judge’s findings that the appellant did not
experience casualty or misfortune that contributed to his filing delay and that his
counsel’s mistake did not constitute a circumstance beyond his control. ID at 5
(citing Skaggs, 364 F. App’x at 625-26); see Jordon v. Department of the
Army, 39 M.S.P.R. 213, 215 (1988) (finding that the error made by counsel’s
clerical staff in using an inapplicable statute to calculate a filing deadline did not
constitute good cause for waiver of the time limit).          We thus agree with the
administrative judge that, weighing the totality of the circumstances, the
appellant failed to establish good cause for his untimely filing. See McBurnett v.
Department of the Army, 37 M.S.P.R. 395, 396-97 (1988) (finding that counsel’s
assertion that    his   failure   to   timely file an     appeal    resulted   from his
misinterpretation of the effective date of the appellant’s removal did not
constitute good cause for the 1-day filing delay).

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:




5
  In Jones, the agency submitted its response to the appellant’s petition for review 1 day
after the filing deadline. 110 M.S.P.R. 674, ¶ 5 n.2. The agency moved for leave to file
late on grounds that the responsible attorney inadvertently “calendared the deadline” for
filing the petition on the wrong date. Id. The Board found that the error did not
constitute good cause for the delay and therefore did not consider the response in
reaching its decision. Id.
                                                                                  7

                             U.S. 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 U.S. 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 U.S. 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 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
                                                                                  8

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.
