                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH P. MARTINEZ,                             DOCKET NUMBER
                   Appellant,                        DE-0752-14-0210-I-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 12, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steven W. Zachary, Esquire, Mesa, Arizona, for the appellant.

           Adam A. Odell, Callie LeRoy, Esquire, and Dean L. Lynch, Esquire,
             Tucson, Arizona, 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 refiled 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
     and   AFFIRM      the   initial   decision,   which     is    now   the   Board’s   final
     decision. 5 C.F.R. § 1201.113(b).

                                        BACKGROUND
¶2         The appellant filed a Board appeal challenging his removal. Martinez v.
     Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-1,
     Initial Appeal File (I-1 IAF), Tab 1. During the proceedings below, the agency
     asserted that the appellant produced several sensitive law enforcement documents
     in the course of discovery and that the appellant’s unauthorized possession and
     production of these documents presented an apparent violation of law. I-1 IAF,
     Tab 15 at 4. The agency referred the matter for investigation and requested that
     the appeal be stayed pending its outcome.         Id.        The parties stipulated to a
     dismissal without prejudice. I-1 IAF, Tab 17, Initial Decision (I-1 ID) at 2. The
     administrative judge thus dismissed the appeal without prejudice on May 7, 2014,
     stating that the appeal must be refiled no later than either 30 days after the agency
     notified the appellant that it concluded its investigation or September 7, 2014,
     whichever was earlier. Id. The administrative judge also warned the appellant
     that, if he did not refile his appeal within the aforementioned deadline, it might be
     dismissed as untimely filed. Id.
                                                                                      3

¶3         The agency concluded its investigation in December 2014, but it did not
     inform the appellant that the investigation was closed.          See Martinez v.
     Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-2,
     Initial Appeal File (I-2 IAF), Tab 6 at 14. The appellant did not refile his appeal
     until May 2015. I-2 IAF, Tab 1. He asserted that good cause existed for his
     filing delay because, inter alia, the agency threatened criminal charges against
     him to get him to stop exercising his appeal rights, refiling would incite the
     agency to charge him with a crime, and the agency misled the administrative
     judge into thinking it was conducting an investigation to stop him from exercising
     his rights. Id. at 4-7.
¶4         The administrative judge informed the appellant that his refiled appeal
     appeared to be untimely and ordered him to show that it was more likely than not
     that his appeal was refiled on time or that good cause existed for the delay. I-2
     IAF, Tab 4. In response, the appellant asserted that good cause existed for his
     filing delay. I-2 IAF, Tab 5. Specifically, he asserted that: (1) he timely filed
     his initial appeal; (2) he consistently demonstrated his intent to appeal the
     agency’s decision; (3) the length of his filing delay was minimal, given that he
     was waiting for the resolution of the agency’s threat of criminal charges; (4) the
     refiling deadline appeared to be based on the understanding that the agency had a
     certain time period to investigate or bring criminal charges against him and thus
     was confusing or arbitrary; (5) there had been only one dismissal without
     prejudice; and (6) the good cause standard should be liberally construed.       Id.
     at 10-15. The agency responded that the appellant did not meet his burden of
     proving good cause for the delay because: (1) he intentionally missed the refiling
     deadline; (2) the delay was not minimal; (3) he was represented by counsel; (4)
     his assertions concerning agency threats were unsupported, untrue, and
     implausible; and (5) he did not explain why he did not request an extension or
                                                                                            4

     otherwise contact the administrative judge prior to the refiling deadline. 2         I-2
     IAF, Tab 6 at 6-12. The agency also asserted that it would be prejudiced by
     allowing the appellant to refile his appeal. Id. at 12.
¶5         The administrative judge dismissed the appeal as untimely refiled with no
     good cause shown for the delay. I-2 IAF, Tab 7, Initial Decision (I-2 ID). The
     appellant has filed a timely petition for review, Petition for Review (PFR) File,
     Tab 1, the agency has filed a response in opposition to the petition for review,
     PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. 3

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         The administrative judge correctly found, and it is undisputed, that the
     appellant’s appeal is untimely refiled. The administrative judge dismissed the
     appeal without prejudice and stated that it must be refiled no later than 30 days
     after the agency notified the appellant that it concluded its investigation or
     September 7, 2014, whichever was earlier. I-1 ID at 2. Because the agency did
     not notify the appellant that it had concluded its investigation, I-2 IAF, Tab 6 at
     14, the deadline for refiling the appeal was September 7, 2014. The appellant did
     not refile his appeal until May 18, 2015. I-2 IAF, Tab 1. Thus, he refiled his
     appeal over 8 months past the deadline set forth in the initial decision dismissing
     his appeal without prejudice.

     2
       The agency also submitted an unsworn declaration of a Special Agent in Charge
     stating that the agency’s Office of Inspector General declined to investigate the
     appellant’s alleged unauthorized disclosure, the U.S. Attorney declined criminal
     prosecution, and the agency’s Office of Internal Affairs closed the investigation in
     December 2014. I-2 IAF, Tab 6 at 14. The declarant indicated that the appellant was
     not notified when the investigation was closed because it is not agency policy to notify
     former employees that an investigation is closed. Id.
     3
       The appellant has attached new evidence to his petition for review in the form of his
     August 2015 affidavit detailing the timeline of, and his reasoning for, waiting to refile
     his appeal. PFR File, Tab 1 at 17-18. We do not consider this evidence because it is
     not based on information not readily available before the record closed below, despite
     the appellant’s due diligence. 5 C.F.R. §§ 1201.114(b), 1201.115(d); see Ellis v.
     Department of the Navy, 117 M.S.P.R. 511, ¶ 12 (2012).
                                                                                         5

¶7         Because the appeal was untimely refiled, the appellant must establish good
     cause for waiving the refiling deadline. See Medina v. Department of the Air
     Force, 66 M.S.P.R. 194, 197 (1995). The appellant bears the burden of proof, by
     a preponderance of the evidence, regarding issues of timeliness. 4           5 C.F.R.
     § 1201.56(b)(2)(i)(B).    The Board has identified the following factors as
     supporting a finding of good cause for waiving the refiling deadline:         (1) the
     appellant’s pro se status, timely filing of the initial appeal, intent throughout the
     proceedings to file an appeal, minimal delay in refiling, and any confusion;
     (2) the small number of dismissals without prejudice; (3) an arbitrary refiling
     deadline; (4) the agency’s failure to object to the dismissal without prejudice; and
     (5) the lack of prejudice to the agency in allowing the refiled appeal. Gaddy v.
     Department of the Navy, 100 M.S.P.R. 485, ¶ 13 (2005).
¶8         In his initial decision on the refiled appeal, the administrative judge found
     that the appellant did not show good cause for the refiling delay because: (1) he
     was represented by counsel; (2) the length of the delay was significant; (3) the
     appellant did not assert confusion concerning the filing deadline; (4) the deadline
     was not arbitrary; (5) the fact that there was only one dismissal without prejudice
     was unimportant, particularly given the extreme delay by the appellant in refiling
     his appeal; and (6) the appellant failed to explain why he could not refile his
     appeal within the relevant time period. I-2 ID at 5. We agree. See Nelson v. U.S.
     Postal Service, 113 M.S.P.R. 644, ¶¶ 9-10 (2010) (finding no good cause for a
     pro se appellant’s 4-month delay in refiling his appeal where the initial decision
     clearly identified the date for refiling and warned him of the consequences of
     failure to refile by that date, and he failed to provide any evidence justifying any
     confusion over the deadline).



     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

¶9        Further, we find that the appellant’s arguments on review do not provide a
     basis for disturbing the initial decision. PFR File, Tab 1. The appellant appears
     to assert that the administrative judge erred in finding no good cause shown for
     his untimely refiling because he should have found that the refiling would “incite
     the agency” to take action against him. Id. at 10-11. We find no error in this
     respect, however, because we agree with the administrative judge that the
     appellant has not submitted specific evidence or argument regarding how refiling
     his appeal or contacting the regional office prior to the expiration of the refiling
     deadline to communicate his intent to refile his appeal would have affected the
     agency’s investigation or caused the agency to take any action against him.
     I-2 ID at 5. The appellant also asserts that the agency’s decision whether or not
     to pursue criminal charges was a circumstance beyond his control. PFR File, Tab
     1 at 11-12.   However, he does not explain how the agency’s pursuit of the
     investigation, even if outside of his control, affected his ability to refile his
     appeal or otherwise communicate to the regional office his intent to refile. We
     therefore find that this argument does not demonstrate good cause for the
     appellant’s   untimely   refiling.     See   Chavez    v.   Office   of   Personnel
     Management, 46 M.S.P.R. 390, 393 (1990) (finding no good cause for the delay
     in filing the appeal where, although the appellant presented circumstances outside
     of his control, he did not explain how the circumstances affected his ability to
     timely file his appeal). Finally, the appellant asserts that we should grant his
     petition for review in the interest of public policy because no agency should be
     permitted to mislead an appellant into believing that he may face criminal charges
     if he chooses to refile an appeal. PFR File, Tab 1 at 12-13. We find that the
     appellant has not presented evidence or argument regarding how the agency
     misled him into believing that he may face criminal charges if he chose to refile
                                                                                               7

      his appeal.    Thus, we find that this argument does not provide a basis for
      disturbing the initial decision. 5
¶10         Finally, we have considered the appellant’s remaining arguments, including
      his reassertion of many of the arguments from below. PFR File, Tabs 1, 4.
      However, these arguments do not provide a basis for disturbing the initial
      decision.       See    Broughton       v.   Department       of   Health     &     Human
      Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we find that the appellant
      has not shown good cause for his untimely refiling. See Medina, 66 M.S.P.R. at
      197-98.

                       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:
                                      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

      5
        There is no evidence that the agency threatened to file criminal charges because the
      appellant filed an appeal or intended to refile his appeal. Further, the agency states that
      the U.S. Attorney has the sole power of criminal prosecution. PFR File, Tab 3 at 10
      (citing 28 U.S.C. § 547).
                                                                                 8

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 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.
