                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOSEPH WILBUR, JR.,                             DOCKET NUMBER
                  Appellant,                         AT-0731-16-0356-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: September 2, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Joseph Wilbur, Jr., Daphne, Alabama, pro se.

           Linda L. Bowers, Esquire, Lincoln, Nebraska, 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. 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


     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2        The appellant filed this appeal contesting a finding of the Department of
     Homeland Security (DHS) that he was unsuitable for agency employment. Initial
     Appeal File (IAF), Tab 1 at 1, 3.      DHS issued the unsuitability decision on
     February 5, 2015.    Id. at 7.   The appellant filed this appeal on February 9,
     2016. Id. at 1. On March 16, 2016, the administrative judge issued a timeliness
     order, indicating that the appeal appeared to be late by 339 days and ordering the
     appellant to present evidence and argument showing that his appeal was timely
     filed or good cause existed for the delay in filing. IAF, Tab 5 at 1-4. In response
     to that order, the appellant explained that he had been on a military deployment
     between February 3, 2015, and September 23, 2015.        IAF, Tab 6 at 14-15, 26,
     30-31, Tab 8.    Accordingly, the administrative judge found that the time for
     filing the appeal was tolled under the Servicemembers Civil Relief Act (SCRA).
     IAF, Tab 9; see 50 U.S.C. § 3936(a).     Based on the appellant’s September 23,
     2015 release from military service, the administrative judge issued a second
     timeliness order indicating that his appeal appeared to be 109 days late. IAF,
     Tab 9 at 2-4.   The appellant responded to the order, as did the agency.       IAF,
     Tabs 10-11. The administrative judge then concluded that the appellant failed to
                                                                                     3

     establish good cause for waiving the filing deadline and dismissed the appeal as
     untimely filed. IAF, Tab 12, Initial Decision (ID) at 4-5.
¶3         The appellant filed a petition for review wherein he argues that he was
     unaware that an investigation of incidents related to his resignation from the
     Occupational Safety and Health Administration (OSHA) had been completed.
     Petition for Review (PFR) File, Tab 1 at 5; see IAF, Tab 1 at 6. The investigation
     formed the basis for DHS to issue a November 18, 2014 Notice of Proposed
     Action (NOPA) regarding the appellant’s suitability for employment at DHS.
     IAF, Tab 1 at 7-10. The appellant asserts that he was unable to respond to the
     NOPA because of his deployment.        PFR File, Tab 1 at 5.   DHS later made a
     negative suitability finding upon which this appeal is based. PFR File, Tab 1
     at 5; see IAF, Tab 1 at 7-10. On review, the appellant seeks to present reasons
     why the negative suitability finding was incorrect. PFR File, Tab 1 at 5. He also
     reargues his position from below as to why the Board should waive the filing
     deadline for his appeal: that when he returned from his deployment, he had to
     deal with “a backlog of mail,” family issues, readjustment to civilian life, and
     ongoing unemployment. Id. at 6. He additionally asserts that the availability of
     new and material evidence—his response to the NOPA—is sufficient reason for
     the Board to waive the filing deadline. Id. at 6-8.
¶4        The appellant’s arguments are unavailing.          The administrative judge
     correctly found that the deadline for filing the appeal was extended under SCRA
     based on the appellant’s September 23, 2015 release from military service, and
     his appeal should have been filed by October 23, 2015. ID at 2; see 50 U.S.C.
     § 3936(a); Neighoff v. Department of Homeland Security, 122 M.S.P.R. 86,
     ¶¶ 6-10 (2015). The appeal was filed via e‑Appeal on February 9, 2016, which is
     109 days past the October 23, 2015 filing deadline. IAF, Tab 1.
¶5         When an appeal is filed late, an administrative judge may waive the Board’s
     regulatory filing deadline if the appellant shows good cause for the late
     filing. 5 C.F.R. §§ 1201.12, 1201.22(c). To establish good cause, an appellant
                                                                                         4

     must show that he exercised due diligence or ordinary prudence under the
     particular   circumstances   of   the   case.   Alonzo    v.    Department    of   the
     Air Force, 4 M.S.P.R. 180, 184 (1980). 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.         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         Although the appellant is pro se, a 109-day delay in filing is not a minimal
     one, as the administrative judge correctly pointed out.        ID at 3.   DHS’s final
     decision specifically informed the appellant that he had a 30-day deadline for
     filing a Board appeal. IAF, Tab 1 at 9; see 5 C.F.R. § 1201.22. Although a brief
     delay caused by personal issues and the need to sift through mail accumulated
     during a half-year absence would be understandable, a 109-day delay is excessive
     and suggests that the appellant was neglectful in exercising his appeal rights. The
     appellant has not alleged any circumstances rising to unavoidable casualty or
     misfortune that would have affected his ability to timely file an appeal. As the
     administrative judge explained, the appellant’s assertion that he could not find the
     Board’s appeal form is likewise unconvincing. ID at 4.
¶7         We also reject the appellant’s assertion that he offers new and material
     evidence on review, in the form of his response to the NOPA. For the Board to
     accept such evidence as new, an appellant must show that it was unavailable
     despite his due diligence before the record in the proceeding below closed.
     Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the NOPA
     was issued on November 18, 2014, IAF, Tab 1 at 7, prior to the appellant’s
     deployment, see IAF, Tab 6 at 26, 29-31.         Additionally, the record in the
     proceeding below includes the appellant’s post-deployment response to the
                                                                                  5

NOPA. Id. at 5-14. Evidence that is already a part of the record is not new.
Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980); see Grassell v.
Department of Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that the
information contained in the documents, not just the documents themselves, must
have been unavailable despite due diligence when the record closed to constitute
new evidence). In any event, the appellant’s response to the NOPA pertains to
the merits of his appeal and not to the administrative judge’s dismissal for
untimely filing. Accordingly, we affirm the administrative judge’s finding that
the appeal was untimely filed without good cause shown for the delay in filing.

                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 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.
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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:                                ______________________________
                                              Jennifer Everling
                                              Acting Clerk of the Board
Washington, D.C.
