                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TENA MARIE HARNISH,                             DOCKET NUMBER
                  Appellant,                         CH-0752-14-0303-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: July 14, 2015
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Tena Marie Harnish, Indianapolis, Indiana, pro se.

           Nathan R. Mellman, Chicago, Illinois, 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     dismissed her appeal as withdrawn.          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), and the appellant’s request to reopen
     her appeal is DENIED, 5 C.F.R. § 1201.118.

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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         The appellant appealed the agency’s decision to remove her. Initial Appeal
     File (IAF), Tab 1.     However, after the approval of her disability retirement
     application, she requested to withdraw her appeal. Hearing Compact Disc. The
     administrative judge therefore dismissed the appeal as withdrawn on December 9,
     2014. IAF, Tab 34, Initial Decision (ID).
¶3         The appellant filed an untimely petition for review on March 27, 2015, in
     which she asserts that she was:      (1) confused when she withdrew her appeal;
     (2) not provided with information concerning the withdrawal; and (3) not made
     whole by the agency. Petition for Review (PFR) File, Tab 1 at 3-4. She also
     states that she has been ill due to her disabilities. Id. at 3. The Clerk of the
     Board issued an acknowledgment letter informing the appellant that her petition
     was untimely filed and affording her the opportunity to file a motion to ask the
     Board to accept the filing as timely and/or waive the time limit for good cause.
     PFR File, Tab 2. The appellant did not respond. The agency has responded in
     opposition to the appellant’s petition. 2 PFR File, Tab 3.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶4         The Board treats a request to reopen an initial decision (which became final
     when neither party petitioned for review) as an untimely filed petition for review.


     2
       In addition to this removal appeal, the appellant also filed an indefinite suspension
     appeal. Harnish v. U.S. Postal Service, MSPB Docket No. CH-0752-14-0304-I-1.
     Although the appeals were never joined, the administrative judge dismissed both
     appeals as withdrawn on the same day. ID; Harnish v. U.S. Postal Service, MSPB
     Docket No. CH-0752-14-0304-I-1, Initial Decision (Dec. 9, 2014). The appellant filed
     the present petition for review only in connection with the removal appeal. As a result,
     the Clerk of the Board issued an order seeking to clarify whether the appellant also
     intended to challenge the dismissal of her indefinite suspension appeal. PFR File,
     Tab 4. The order further stated that if the appellant did not respond, the Board would
     assume that she intended to contest only the initial decision in the removal appeal. Id.
     Accordingly, because the appellant did not respond, we consider her petition for review
     only as to MSPB Docket No. CH-0752-14-0303-I-1.
                                                                                        3


     Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).
     Therefore, we initially will consider the appellant’s submission as an untimely
     filed petition for review.
¶5         The Board’s regulations require that a petition for review must be filed
     within 35 days after the date of the issuance of the initial decision or, if a party
     shows that she received the initial decision more than 5 days after it was issued,
     within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e)(1).
     The record shows that the appellant registered as an e-filer with the Board’s
     electronic filing system (e-appeal).     IAF, Tab 1.     Registration as an e-filer
     constitutes consent to accept electronic service of documents issued by the
     Board.   5 C.F.R. § 1201.14(e).     The Board’s regulations further provide that
     Board documents served on registered e-filers are deemed received on the date of
     the electronic submission. 5 C.F.R. § 1201.14(m)(2).
¶6         The record reflects that the initial decision in this matter was transmitted
     via e-appeal on December 9, 2014. IAF, Tab 34. Because the appellant was a
     registered e-filer, she is deemed to have received the initial decision on that date.
     See 5 C.F.R. § 1201.14(e)(1), (m)(2). Thus, the deadline for filing a petition for
     review of the initial decision was 35 days after its issuance, i.e., January 13,
     2015. See 5 C.F.R. § 1201.113; see also ID at 2. The appellant did not file her
     petition for review until March 27, 2015. PFR File, Tab 1. Her petition therefore
     was untimely filed by 73 days.
¶7         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 an
     untimely filing, a party must show that she 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). To determine if an appellant has
     shown good cause, the Board will consider the length of the delay, the
     reasonableness of her excuse and her showing of due diligence, whether she is
                                                                                        4


     proceeding pro se, and whether she has presented evidence of the existence of
     circumstances beyond her control that affected her ability to comply with the time
     limits or of unavoidable casualty or misfortune, which similarly shows a causal
     relationship to her inability to timely file her petition. Id.
¶8         We find that the appellant failed to show good cause for a waiver of the
     filing deadline because she did not respond to the Clerk of the Board’s order
     concerning whether there was good cause for her filing delay.          See id., ¶ 6.
     Additionally, although the appellant states that she is disabled, she did not
     explain how her disabilities affected her ability to timely file her petition or
     request an extension of time. See Barlow v. Department of the Navy, 99 M.S.P.R.
     569, ¶ 7 (2005) (finding that the appellant failed to establish that the untimely
     filing of her petition was the result of illness where she had not submitted any
     medical evidence to demonstrate that she was hospitalized, under medical
     treatment, or otherwise suffering from an illness between the dates of issuance of
     the initial decision and for timely filing her petition). Therefore, we find that the
     petition for review is untimely filed without good cause shown for the delay. See
     Duncan v. U.S. Postal Service, 96 M.S.P.R. 448, ¶ 7 (2004) (finding that the
     appellant did not show good cause for the delay in filing his petition for review
     where, notwithstanding his pro se status, the delay was significant, he did not
     respond to the Clerk of the Board’s timeliness notice, and he did not make any
     statement explaining the delay).
¶9         To the extent that the petition is construed as a request to reopen the appeal
     pursuant to 5 C.F.R. § 1201.118, we deny this request. See Lincoln v. U.S. Postal
     Service, 113 M.S.P.R. 486, ¶ 9 (2010). Ordinarily, an appellant’s withdrawal of
     an appeal is an act of finality and, in the absence of unusual circumstances such
     as misinformation or new and material evidence, the Board will not reinstate an
     appeal once it has been withdrawn merely because the appellant wishes to
     proceed before the Board or to cure an untimely petition for review. Potter v.
                                                                                        5


      Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 7 (2011). The appellant
      states that she was confused at the time of her withdrawal, that she was not
      provided information concerning the withdrawal, and that she is disabled. PFR
      File, Tab 1 at 3-4.    However, she has presented no argument or evidence of
      unusual circumstances concerning the withdrawal of her appeal. We therefore
      decline   to   exercise   our     discretion     to   reopen   the   appeal.    See
      Lincoln, 113 M.S.P.R. 486, ¶ 9.
¶10        Accordingly, we dismiss the petition for review as untimely filed. 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 appellant’s withdrawal of her removal appeal.

                         NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      United States 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.
                                                                                6


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 United States 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.
