                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TRAVIS L. WARREN,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0515-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 29, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Neil C. Bonney, Esquire, Virginia Beach, Virginia, for the appellant.

           Omari O. Jackson, Esquire, Portsmouth, Virginia, 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
     dismissed his appeal as untimely filed. 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 erroneous interpretation of statute or regulation


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.                5 C.F.R.
     § 1201.113(b).
¶2         On March 14, 2014, the appellant, a WG-10 pipefitter at the agency’s
     Norfolk Naval Shipyard, filed this appeal of the agency’s December 18, 2013
     action, which placed him on an indefinite suspension for failure to meet a
     condition of his employment, i.e., his ineligibility to occupy a sensitive position.
     Initial Appeal File (IAF), Tab 1, Tab 4 at 8-19. Because the appellant filed his
     Board appeal more than 2 months after the effective date of his suspension, the
     agency moved to dismiss the appeal as untimely filed, id. at 5, and the appellant
     moved to consolidate the appeal with another he had filed with the Board on
     April 1, 2014, 2 IAF, Tab 6. In his initial decision, the administrative judge found


     2
       The administrative judge denied the appellant’s motion to consolidate the instant
     appeal with Warren v. Department of the Navy, MSPB Docket No. DC-0752-0565-I-1,
     because the imposition of an indefinite suspension, the subject of this appeal, and an
     agency’s failure to terminate such a suspension after the condition subsequent has
     occurred, the subject of the appellant’s other appeal, are separately reviewable agency
     actions. IAF, Tab 17, Initial Decision (ID) at 4 n.2 (citing Rhodes v. Merit Systems
     Protection Board, 487 F.3d 1377, 1381 (Fed. Cir. 2007)). The administrative judge
     also denied the appellant’s motion to serve as a class representative. IAF, Tab 10; ID
     at 4 n.2. We find no reason to disturb the administrative judge’s rulings on these
     motions.
                                                                                         3

     that the appeal was untimely filed without good cause shown for the delay. See
     ID.
¶3          In his timely-filed petition for review, the appellant reiterates his argument
     that the agency misrepresented the basis for his indefinite suspension, which
     improperly influenced him to not file a Board appeal of the agency’s action
     because he thought it would be futile. Petition for Review (PFR) File, Tab 1; see
     IAF, Tab 9 at 6-7.       Specifically, the appellant argues that, contrary to the
     agency’s assertions in the notice proposing his indefinite suspension, he had not
     yet been determined ineligible to occupy a sensitive position, and he
     “detrimentally relied on the agency’s false statement that he had lost his security
     clearance and did not appeal the indefinite suspension to the Board.” PFR File,
     Tab 1 at 5. The agency responds in opposition. PFR File, Tab 3.
¶4          Due to the appellant’s choice to use annual leave, his suspension was made
     effective December 18, 2013.          IAF, Tab 4 at 19, 22.    With exceptions not
     applicable here, an appeal must be filed no later than 30 days after the effective
     date of the action being appealed.        5 C.F.R. § 1201.22(b)(1). Thus, when the
     appellant filed this appeal on March 14, 2014, IAF, Tab 1, it was 56 days late. 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.          E.g., Alonzo v. Department of the Air Force,
     4 M.S.P.R. 180, 184 (1980). To determine if 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. E.g., 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).
                                                                                        4

¶5         In his initial decision, the administrative judge analyzed the appellant’s
     assertions of good cause for his untimely filing in the context of the factors set
     forth above.   ID at 6-10.    He also explicitly disposed of the appellant’s sole
     argument on review.       ID at 9-10 (citing Damaso v. Office of Personnel
     Management, 86 M.S.P.R. 371, ¶ 5 (2000)); see also Duff v. Department of the
     Army, 68 M.S.P.R. 146, 149 (1995) (an employee’s claim that he did not realize
     that he had good grounds for an appeal does not establish good cause for an
     untimely filing). If the appellant thought that the agency’s basis for his indefinite
     suspension was not correct, then he could have filed an appeal, but we do not
     agree with his claim that the agency misled him into not filing one.
¶6         We instead agree with the administrative judge’s finding that the agency
     “properly and expressly notified the appellant that he could file a Board appeal
     from the suspension and the appellant chose not to file.”          ID at 10.     The
     appellant’s discovery of new precedent after the expiration of the filing deadline,
     his discouragement about what he perceived as the likely outcome of an appeal,
     or the fact that others successfully advanced an argument that he chose not to
     pursue, does not establish good cause for his untimely filing. See, e.g., Olson v.
     Department of Agriculture, 91 M.S.P.R. 525, ¶ 6 (2002).

                     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.
                                                                                  5

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 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.
