                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SAMUEL HERRERA-DIAZ,                            DOCKET NUMBER
                 Appellant,                          NY-0831-14-0211-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 5, 2014
       MANAGEMENT,
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Samuel Herrera-Diaz, Rio Grande, Puerto Rico, pro se.

           Karla W. Yeakle, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed as untimely filed his appeal of the Office of Personnel Management’s
     (OPM’s) July 14, 2006 reconsideration decision. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and
     authorities, 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        In a July 14, 2006 reconsideration decision, OPM affirmed its initial
     decision honoring the claim of the appellant’s former spouse for a court awarded
     portion of his civil service retirement benefits. Initial Appeal File (IAF), Tab 5,
     Subtab 2. The decision advised the appellant that he had the right to appeal the
     decision to the Board within 30 calendar days after the date of the decision or 30
     days after receipt of the decision, whichever was later. Id. at 4.
¶3        On March 7, 2014, through the Board’s e-Appeal system, the appellant filed
     an appeal challenging OPM’s July 14, 2006 reconsideration decision on the
     grounds that OPM had incorrectly interpreted the divorce decree. IAF, Tab 1.
     On April 3, 2014, the administrative judge issued an order to show cause
     regarding timeliness, noting that it appeared that the appellant’s appeal was
     untimely filed. Id., Tab 4. The timeliness order explained that the time limit for
     filing an appeal may be waived upon a showing of good cause if the appellant
     could show that he acted reasonably and with due diligence under the
                                                                                      3

     circumstances and ordered him to file evidence and argument showing that his
     appeal was timely filed or that good cause existed for the delay. Id.
¶4        On May 9, 2014, the administrative judge, having not received a response to
     the timeliness order from the appellant, dismissed the appeal as untimely filed.
     IAF, Tab 6, Initial Decision (ID). The administrative judge explained that the
     appellant had not shown good cause for filing his appeal approximately 2,763
     days late. ID at 2-3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On May 14, 2014, the appellant filed a timely petition for review of the
     initial decision. Petition for Review (PFR) File, Tab 1. The appellant argues that
     the administrative judge erroneously found that he had not responded to the
     timeliness order.   Id. at 4. He avers that he submitted his response to the Board
     via email because he encountered difficulties with the e-Appeal system. Id. at
     4-7. He further states that it was not clear to him that the “only option” for
     submitting his response was through e-Appeal. Id. at 4.
¶6        Along with his petition for review, the appellant submitted a copy of his
     response to the timeliness order, which he purportedly tried to file below. PFR
     File, Tab 1 at 6-8. In that response, the appellant explains that he did not timely
     appeal the July 14, 2006 decision because: (1) “a lawyer and others” had advised
     him that OPM erroneously interpreted the divorce decree; (2) a lawyer had
     advised him that the type of error purportedly committed by OPM could be
     appealed any time because it was “a prejudicial and unfair act”; and (3) the
     excess funds purportedly awarded erroneously to his former spouse had been used
     to support his daughter until December 18, 2011. Id.
¶7        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. Alonzo v. Department of the Air Force, 4 M.S.P.R.
     180, 184 (1980). The Board should consider the length of the delay in every
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          good cause determination. Walls v. Merit Systems Protection Board, 29 F.3d
          1578, 1582 (Fed. Cir. 1994).
     ¶8        First, we discern no error in the administrative judge’s finding that the
          appellant failed to respond to the timeliness order.    The appellant’s claim of
          difficulty with the e-Appeal system does not excuse his failure. See Palermo v.
          Department of the Navy, 120 M.S.P.R. 694, ¶5 (2014). In any event, he could
          have filed his pleading by any non-electronic means. 5 C.F.R. § 1201.14(f). The
          appellant’s claim that he filed his response by email is also not persuasive. The
          Board does not accept pleadings filed by electronic mail. 5 C.F.R. § 1201.14(d).
          Moreover, the e-Appeal generated email containing the order on timeliness
          explicitly advised that the appellant should not reply to that email account. PFR
          File, Tab 1 at 5 (“Do not reply to this email account for submitting additional
          case data. All electronic submissions must be made via the e-Appeal website.”)
¶9             Second, even in light of the appellant’s response to the timeliness order, the
          appellant fails to show good cause for his untimely filing.                OPM’s
          reconsideration decision properly notified the appellant that he had the right to
          appeal its decision to the Board within 30 days of the date of the decision or 30
          days after his receipt of the decision, whichever was later. IAF, Tab 5, Subtab 2
          at 4. Rather than diligently pursuing his appeal rights, the appellant alleges that
          he waited nearly 7½ years based on advice from “a lawyer and others” and
          because he was satisfied with his wife’s use of the contested funds. PFR File,
          Tab 1 at 6-7. Even if true, these explanations do not establish good cause for
          such a lengthy filing delay. See Wright v. U.S. Postal Service, 93 M.S.P.R. 444,
          ¶ 6 (2003) (finding that good cause for untimely filing was not shown where the
          appellant relied on poor advice from his representative).
¶10            Accordingly, after fully considering the filings in this appeal, we conclude
          that there is no new, previously unavailable, evidence and that the administrative
          judge made no error in law or regulation that affects the outcome.        5 C.F.R.
                                                                                  5

§ 1201.115(d). Therefore, we DENY the petition for review, and AFFIRM the
initial decision of the administrative judge.

                   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.
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. 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.
