                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CARLOS GARZA, JR.,                              DOCKET NUMBER
                  Appellant,                         DA-0752-15-0161-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 11, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Carlos Garza, Jr., McAllen, Texas, pro se.

           Eric J. Drootman, Edinburg, Texas, 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
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 December 1, 2014, the appellant received a decision letter informing
     him that the agency was removing him from his GS-12 Border Patrol Agent
     position for conduct unbecoming a Border Patrol Agent effective that day. Initial
     Appeal File (IAF), Tab 5 at 12-15. The decision letter informed the appellant that
     he could contest his removal by electing one of several procedures outlined in the
     letter and provided the time limits for each option. Id. at 13-15. The appellant
     filed an appeal through the Board’s electronic filing system, e-Appeal, on
     January 4, 2015, 4 days past the deadline for filing a Board appeal. IAF, Tab 1;
     see IAF, Tab 5 at 13-14.
¶3         On January 9, 2015, the administrative judge notified the appellant that his
     appeal appeared to be untimely filed and ordered him to submit evidence and
     argument within 10 calendar days showing that his appeal was timely filed or, in
     the alternative, that good cause existed for the delay. IAF, Tab 3. The appellant
     did not respond, and, on March 17, 2015, the administrative judge issued an
     initial decision dismissing the appeal as untimely filed without good cause shown
     for the delay. IAF, Tab 7, Initial Decision (ID). The initial decision advised the
     appellant that he had the option to file a petition for review with the Board by
     April 21, 2015, or, if he proved that he received the initial decision more than
     5 days after the date of issuance, within 30 days after the date he received the
     initial decision. ID at 4-5.
¶4         On August 25, 2015, the appellant submitted a request to reopen “an appeal
     dismissed without prejudice.”     Petition for Review (PFR) File, Tab 1.         On
     September 2, 2015, the Clerk of the Board issued an acknowledgment letter
     informing the appellant that the initial decision did not dismiss his appeal without
     prejudice, but rather dismissed it as untimely filed and that the Board would
     consider his request to reopen as a petition for review of the initial decision. PFR
     File, Tab 4 at 1. The acknowledgement letter further informed the appellant that
                                                                                            3


     his petition for review was untimely filed because it was not postmarked or
     received by the Board on or before April 21, 2015, the 35 th day following the
     issuance of the initial decision. Id. at 2. The letter directed the appellant to
     submit a motion asking the Board to accept his petition for review as timely filed
     or to waive the time limit for good cause, accompanied by a statement signed
     under penalty of perjury or an affidavit showing either that his petition was
     timely filed or that there is good cause for the late filing, on or before
     September 17, 2015. Id. On October 5, 2015, the Board received the appellant’s
     affidavit and motion to waive the time limit on the grounds that, among other
     things, he did not understand that he could request review of the initial decision
     and that he had been in a “depressive state” for months after his termination. 2
     PFR File, Tab 6 at 2-5. The agency responded in opposition to the appellant’s
     petition for review. PFR File, Tab 5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The Board will waive its filing deadline only upon a showing of good cause
     for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for the
     untimely filing of a petition for review, an appellant must show that he exercised
     due diligence or ordinary prudence under the particular circumstances of the case.
     Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014); 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

     2
       The appellant’s motion to waive the time limit for his petition for review was untimely
     filed by at least 10 days; the Clerk of the Board directed him to submit a motion on or
     before September 17, 2015, but his motion was dated September 27, 2015, and was
     received by the Clerk of the Board on October 5, 2015. PFR File, Tab 4 at 2, Tab 6.
     Because the appellant’s motion to waive the time limit is itself untimely filed without
     good cause shown, we need not consider it.
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     circumstances beyond his control that affected his ability to comply with the time
     limits or of unavoidable casualty or misfortune that similarly shows a causal
     relationship to his inability to timely file his petition. Gaetos, 121 M.S.P.R. 201,
     ¶ 5; 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).
¶6        As stated in the initial decision and the petition for review acknowledgment
     letter, the deadline for filing a petition for review of the March 17, 2015 initial
     decision was April 21, 2015. ID at 4; PFR File, Tab 4 at 2. Thus, the appellant’s
     August 25, 2015 petition for review was filed approximately 4 months late, which
     is significant. See, e.g., Bennett v. Department of Veterans Affairs, 97 M.S.P.R.
     1, ¶ 7 (2004) (finding a more than 3-month delay significant); Summers v. U.S.
     Postal Service, 87 M.S.P.R. 403, ¶¶ 6, 12 (2000) (finding delays of nearly
     1 month and of 15 days significant), aff’d, 25 F. App’x 827 (Fed. Cir. 2001). As
     noted above, the Clerk of the Board issued a petition for review acknowledgment
     letter to the appellant, which, in part, informed him that his petition for review
     was untimely filed and afforded him the opportunity to show good cause for his
     filing delay. PFR File, Tab 4. However, the appellant failed to respond to the
     acknowledgment letter within the time limit provided and, when he did respond,
     failed to offer any explanation as to why he had been unable to submit a timely
     response.     PFR File, Tab 6.   Thus, despite his pro se status, we find that the
     appellant has failed to demonstrate good cause for the untimeliness of his petition
     for review. See Garside v. Office of Personnel Management, 109 M.S.P.R. 65,
     ¶ 6 (2008).
¶7        Even if we were to consider the appellant’s untimely motion to waive the
     time limit for his untimely petition for review, the outcome would be the same.
     In his affidavit, the appellant states that he thought his appeal was dismissed in
     January 2015, and that he did not understand that he could file a petition for
     review of the initial decision. PFR File, Tab 6 at 2-3. An appellant’s confusion
                                                                                       5


     and lack of sophistication, which contribute to a late filing, may be taken into
     account when determining whether good cause for a late filing exists. Forst v.
     Office of Personnel Management, 97 M.S.P.R. 142, ¶ 7 (2004).          An appellant
     must show, however, that such confusion is related to a specific ambiguity in
     either the instructions he received or in a Board procedure. Id. Here, although
     the appellant asserts that he mistakenly believed that he could not request review
     of the initial decision because his case was already closed, he has not identified a
     specific ambiguity in the initial decision or in any other instructions he received
     warranting his mistaken belief. PFR File, Tabs 1, 6. The initial decision, in fact,
     explicitly stated that the appellant could “request Board review of this initial
     decision by filing a petition for review” and explained how to do so. ID at 5.
     The initial decision further provided the appellant with the exact date on which it
     would become final unless he filed a petition for review with the Board. ID at 4.
     Thus, the appellant’s alleged confusion about his ability to request review of the
     initial decision does not contribute to a finding of good cause for his untimely
     petition for review.
¶8         The appellant also states in his affidavit that he was in a “depressive state”
     for months after his termination and that his “fragile mental state” may have
     contributed to his misunderstandings. PFR File, Tab 6 at 3. The Board will find
     good cause for an untimely filing when a party demonstrates that he was unable to
     timely file his petition due to illness, or mental or physical incapacity. Holley v.
     U.S. Postal Service, 97 M.S.P.R. 20, ¶ 8 (2004). To establish that the untimely
     filing was the result of a medical condition, an appellant must identify the time
     period during which he was incapacitated, submit medical evidence showing that
     he suffered from the alleged medical condition during the time period, and
     explain how the medical condition prevented him from timely filing his petition
     or a request for extension of time. Id. Here, although the appellant was notified
     of the requirements for showing that his untimely filing was the result of a
                                                                                       6


     medical condition, PFR File, Tab 4 at 7 n.1, he has failed to submit any medical
     records showing that his alleged medical condition prevented him from filing a
     timely petition for review. PFR File, Tab 6. As such, the appellant’s alleged
     medical impairment does not establish good cause for his untimely filed petition
     for review.
¶9         In light of the foregoing, we dismiss the appellant’s petition for review as
     untimely filed without good cause shown. 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 timeliness of
     the appellant’s initial appeal.

                         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:
                                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 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
                                                                                 7


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 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.
