                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWARD C. PRICE,                                DOCKET NUMBER
                   Appellant,                        SF-0432-16-0245-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 15, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Edward C. Price, Lemoore, California, pro se.

           Dawn Wilkie and Mary Allmann, San Diego, California, 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 removal appeal as untimely. 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 or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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        Effective November 9, 2015, the agency removed the appellant from his
     position as a Transportation Assistant. Initial Appeal File (IAF), Tab 1 at 7. On
     January 20, 2016, the appellant filed a Board appeal challenging his removal.
     IAF, Tab 1. The administrative judge issued an acknowledgment order informing
     the appellant that his appeal appeared to be untimely filed and directing him to
     file evidence and argument to prove either that his appeal was timely filed or that
     good cause existed for his untimely filing. IAF, Tab 2 at 2-5. The appellant filed
     a supplemental response but did not address the timeliness issue. IAF, Tab 5.
     The agency moved to dismiss the appeal as untimely filed without good cause
     shown.   IAF, Tab 6 at 5-6.     The administrative judge issued a second order
     instructing the appellant to file evidence and argument concerning the timeliness
     of his appeal. IAF, Tab 7. The appellant subsequently filed a designation of
     representative, IAF, Tab 20, but did not respond to the timeliness order or the
     agency’s motion to dismiss.
¶3        In an initial decision, the administrative judge dismissed the appeal as
     untimely filed without good cause for delay. IAF, Tab 21, Initial Decision (ID).
     The administrative judge found that the appellant’s appeal was due by
                                                                                      3

     December 9, 2015, and so his January 20, 2016 appeal was untimely filed by 42
     days. ID at 3-4. The administrative judge further found that the appellant failed
     to establish good cause for his untimely filing because he failed to raise any
     arguments addressing his ability to timely file his appeal. ID at 5-6.
¶4        The appellant has filed a petition for review in which he appears to assert
     that his appeal was untimely filed because the agency withheld documents from
     him. Petition for Review (PFR) File, Tab 1 at 3. The agency has opposed the
     appellant’s petition. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        Generally, an appeal must be filed with the Board no later than 30 days
     after the effective date of the agency’s action, or 30 days after the date of the
     appellant’s receipt of the agency’s decision, whichever is later.          5 C.F.R.
     § 1201.22(b)(1). An appellant bears the burden of proof by a preponderance of
     the evidence on the issue of timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B).
¶6        As the administrative judge found, the record reflects that on November 9,
     2015, the appellant received the agency’s decision removing him effective that
     same day. ID at 3; IAF, Tab 1 at 4, 7, 13. Thus, under the Board’s regulations,
     the appellant was required to file his removal appeal on or before December 9,
     2015, or 30 days after the effective date of his removal.                  5 C.F.R.
     § 1201.22(b)(1).     The appellant did not file his removal appeal until
     January 20, 2016, or 42 days after the filing deadline. IAF, Tab 1. Thus, the
     administrative judge properly found that the appeal was untimely filed.
¶7        If an appellant fails to timely submit his appeal, it will be dismissed as
     untimely filed absent a showing of good cause for the delay in filing. 5 C.F.R.
     § 1201.22(c). 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.      Marcantel v. Department of Energy,
     121 M.S.P.R. 330, ¶ 10 (2014). To determine if an appellant has shown good
                                                                                              4

     cause, the Board will consider the length of the delay, the reasonableness of his
     excuse and his showing of 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 unfavorable
     casualty or misfortune which similarly shows a causal relationship to his inability
     to timely file his claim. 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).
¶8         On review, the appellant asserts generally that the agency withheld
     documents from him.            PFR File, Tab 1 at 3.       The Board ordinarily will not
     consider an argument raised for the first time on review absent a showing that it
     is based on new and material evidence not previously available despite the party’s
     due diligence. See Hodges v. Office of Personnel Management, 101 M.S.P.R.
     212, ¶¶ 7-9 (2006) (refusing to consider the appellant’s arguments, raised for the
     first time on review, in support of her position that she had good cause for
     untimely refiling her appeal) (citing Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980)). Because the appellant has provided no explanation
     for his failure to raise this argument below, we need not consider it on review.
¶9         We see no evidence indicating that the appellant could not have raised this
     argument before the administrative judge. As a registered e-filer, IAF, Tab 1 at 2,
     the appellant is deemed to have received the administrative judge’s orders served
     on   him      electronically    on   the   date   of    electronic   submission,   5 C.F.R.
     § 1201.14(m)(2).      On review, the appellant does not contend that he did not
     receive, and offers no explanation for his failure to respond to, either of the
     administrative judge’s timeliness orders.              Even if we were to consider the
     appellant’s argument on review, his explanation does not support a finding of
     good cause because he has not explained what documents the agency allegedly
     withheld from him or how such circumstances prevented him from timely filing
     his appeal.
                                                                                        5

¶10        Accordingly, we affirm the initial decision dismissing the appeal as
      untimely filed without good cause.

                          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.
      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
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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.
