                       UNITED STATES OF AMERICA
                    MERIT SYSTEMS PROTECTION BOARD


MUSTION 1 FT. KNOX HEARING,                        DOCKET NUMBER 1
               Appellant,                          CH-0752-14-0479-I-1

              v.

DEPARTMENT OF THE ARMY,                            DATE: March 9, 2016
            Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

       John E. Givens and Timothy Shea, Louisville, Kentucky, pro se.

       Anne E. Burnham and Micah I. Shirts, Fort Knox, Kentucky, for the
         agency.


                                        BEFORE

                           Susan Tsui Grundmann, Chairman
                              Mark A. Robbins, Member




1
 The individual appeals that are included in this consolidation are set forth in Appendix
A to this order. No petition for review was filed in the other appeals that were decided
as part of the initial decision in this matter, and thus they are not listed on this appendix
or addressed in this decision.
2
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       FINAL ORDER

¶1         The appellants have filed a petition for review of the initial decision, which
     affirmed the agency’s furlough actions.        For the reasons set forth below, we
     DISMISS the petition as untimely filed without good cause shown.               5 C.F.R.
     § 1201.114(e), (g).

                                       BACKGROUND
¶2         The appellants appealed the agency’s furlough actions. Shea v. Department
     of the Army, MSPB Docket No. CH-0752-13-1521-I-1, Initial Appeal File (Shea
     IAF), Tab 1; Givens v. Department of the Army, MSPB Docket No. CH-0752-13-
     1372-I-1, Initial Appeal File (Givens IAF), Tab 1.               Their appeals were
     consolidated with the appeals of similarly situated employees.                Mustion 1
     Ft. Knox Hearing v. Department of the Army, MSPB Docket Number CH-0752-
     14-0479-I-1, Consolidation Appeal File (CAF) Tab 1. After holding a hearing,
     the administrative judge issued an initial decision on August 17, 2015, affirming
     the agency’s furlough actions.         CAF, Tab 30, Initial Decision (ID).           On
     October 20, 2015, two appellants from the consolidated appeal filed a joint
     petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed
     a response in opposition to the appellants’ petition stating that the petition should
     be dismissed as untimely filed without good cause shown. PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶3         The Board’s regulations provide that a petition for review must be filed
     within 35 days of the issuance of the initial decision or, if the appellant shows
     that he received the initial decision more than 5 days after it was issued, within
     30 days after the date that the appellant received the initial decision. 5 C.F.R.
     § 1201.114(e).    The appellants are registered e-filers.       Shea IAF, Tab 1 at 2;
     Givens IAF, Tab 1 at 2.      Board documents served on registered e-filers are
     deemed received on the date of the electronic submission, or if served on a
     weekend    or    holiday,   on   the   first   business   day   after   the   electronic
                                                                                       3

     submission. 5 C.F.R. § 1201.14(l). The appellants’ petition for review was due
     on or before September 21, 2015.
¶4         On October 22, 2015, the Clerk of the Board notified the appellants that
     their petition for review appeared to be untimely filed. PFR File, Tab 2. The
     Clerk of the Board explained that the Board’s regulations require that petitions
     for review that appeared to be untimely filed must be accompanied by a motion to
     accept the filing as timely or to waive the time limit for good cause shown,
     provided the appellants with a blank copy of such a motion, and stated that any
     such motion was due by November 6, 2015. Id. The appellants did not file a
     motion for the Board to accept the petition for review as timely or waive the
     time limit.
¶5         The Board will waive the time limit for filing a petition for review only on
     a showing of good cause for the delay in filing.             5 C.F.R. §§ 1201.12,
     1201.114(g). To establish good cause for the untimely filing, a party must show
     that he exercised due diligence or ordinary prudence under the particular
     circumstances    of    the   case.       Harrison    v.   Office    of   Personnel
     Management, 114 M.S.P.R. 453, ¶ 5 (2010) (citing Alonzo v. Department of the
     Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has
     shown good cause, the Board will consider the length of the delay, the
     reasonableness of the excuse and the showing of due diligence, whether the
     appellant 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         The discovery of new evidence may establish good cause for the untimely
     filing of a petition for review if the evidence was not readily available before the
     close of the record below, and is of sufficient weight to warrant an outcome
                                                                                        4

     different from that of the initial decision. See Armstrong v. Department of the
     Treasury, 591 F.3d 1358, 1362 (Fed. Cir. 2010). The appellants have filed new
     evidence on review, the Table and Distribution Allowance for U.S. Army Human
     Resources Command.        PFR File, Tab 1 at 5-115.      However, the appellants
     have not alleged that this document, which predates the issuance of the initial
     decision, was previously unavailable despite due diligence.        See Alexander v.
     Department of Veterans Affairs, 90 M.S.P.R. 591, ¶ 8 (2002) (finding that
     documents that were available before the initial decision were not new evidence
     establishing good cause for the untimely filing of a petition for review). Because
     the appellants have failed to show good cause for the untimely filing of their
     petition for review, we are dismissing the petition as untimely.
¶7        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 appellants’ appeals of the furlough actions.

                     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).
                                                                                  5

      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 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.
                                                          6


                       APPENDIX A

                 Mustion 1 Ft. Knox Hearing
                   CH-0752-14-0479-I-1


John E. Givens                      CH-0752-13-1372-I-1
Timothy Shea                        CH-0752-13-1521-I-1
