UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

CYNTHIA B. BROOKS, 1 Appellant,

v.
DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF

- 0752

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- 2095

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DATE: May 8, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 2

Cynthia B. Brooks , Roseville, California, pro se.

Jason DeRosa , Esquire, Portland, Oregon, 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 with prejudice for failure to prosecute. For the reasons set

1 Pursuant to 5 C.F.R. § 1201.36 (a), this appeal was part of a consolidation. Corps of Engineers/South Pacific Division v. Department of the Army , MSPB Docket No. SF

- 0752

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- 0285

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- 1.
2 A nonprecedential order is one that the Board has determined does not add significantly to the body o f MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cau se shown. 5 C.F.R. § 1201.114 (e), (g).

BACKGROUND ¶2 On May 31, 2013, the agency issued a Notice of Proposed Furlough informing the appel lant, a Supervisory Geologist, that she would be furloughed for no more than 11 workdays due to “the extraordinary and serious budgetary challenges facing the Department of Defense (DoD) for the remainder of Fiscal Year (FY) 2013, the most serious of which is th e sequester that began on
March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 9

- 10. The appellant submitted a written reply to the proposal notice. IAF, Tab 5 at 11. By written notice dated June 24, 2013, the agency’s deciding official informed t he appellant that she would be furloughed as outlined in the proposal notice. IAF, Tab 1

at 12

- 14. The record includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8, 2013, on discontinuous days between July 8, 2013, and Septemb er 30, 2013, and not to exceed a maximum of 88 hours during the furlough period. Id. at 7

- 8. ¶3 The appellant filed a Board appeal challenging the agency’s action but indicated that she did not want a hearing. Id. at 1

- 6. In a furlough procedures order, the administrative judge informed the appellant that her appeal had been consolidated with the appeals of similarly situated employees. Corps of Engineers/South Pacific Division v. Department of the Army , MSPB Docket
No. SF

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- 1, Consolidated Appeal File, Tab 2. On July 21, 2014, the administrative judge issued an initial decision dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF, Tab 6, Initial Decision (ID) at 1, 3. In particular, the administrative judge found that the appellant failed to exercise basic due diligence in prosecuting her appeal because she failed to appear for the scheduled status conference call, to submit a close of record submission or a response to the agency’s close of record submission, or to3

respond to the show cause order on the failure to prosecute issue. ID at 2. The administrative judge also informed the parties that the initial decision would
become final i f neither party filed a petition for review by August 25, 2014. ID at
3. ¶4 Th e appellant filed a petition for review on January 28, 2015 . Petition for Review (PFR) File, Tab 1. The agency has not filed a response.

DISCUSSION OF ARGUME NTS ON REVIEW The appellant has not established good cause for untimely filing her petition for review. ¶5 Generally, a petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that she received the
initial decision more than 5 days after the date of th e issuance, within 30 days
after the d ate she received the initial decision. 5 C.F.R. § 1201.114 (e). Here, the administrative judge issued the initial decision on July 21, 2014, and the certificate of service reflects that the appellant received the initial decision through email on July 22, 2014. ID at 1; IAF, Tab 7. In the initial decision, the administrative judge informed the parties that the initial decision would bec ome the Board’s final decision if neither party filed a petition for review by Aug ust 25, 2014. ID at 3; see 5 C.F.R. § 1201.113

. ¶6 The appellant filed a petition fo r review on January 28, 2015, 5 months past the initial decision’s finality date. PFR File, Tab 1. In her petition for review, she argues that the Board should find good cause for her untimely filing by stating the following : “After filing the initial appeal I did not realize that I needed to do more as I have not been involved with an appeal before now. I have read and agree with the Judge’s decision dated 21 November 2014, and wish to be reinstated along with the other ap pellants.” Id. at 3

- 4. In an ackno wledg ment letter, the Office of the Clerk of the Board informed the appellant that her petition for review was untimely filed and that she could file a motion with the Board to4

accept her filing as timely or to waive the time limit for good cause. PFR File, Tab 2 at 2. The appellant did not respond to the letter

. ¶7 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause, the appellant must show that she 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). To determine whether an appellant has shown good cause , the Board will consider the length of t he delay, the reasonableness of her excuse and her showing of due diligence, whether she is 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 lim its or of unavoidable casualty or misfortune which similarly shows a causal relationship to her inability to timely file her petition for review.
See 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 We find that the appellant has not demonstrated good cause for her untimely petition for review . Although an appellant’s pro se status is a factor weighing in
her favor , it is insufficient to excuse her untimeliness. Allen v. Office of Personnel Management , 97 M.S.P.R. 665 , ¶ 8 (2004). Her 5

- month delay in filing her petition for review is significant. See , e.g. , Dow v. Department of Homeland Security , 109 M.S.P.R. 633 , ¶ 8 (2008) (finding a more than 1

- month delay in filing a petition for review was sign ificant). Although the appellant mistakenly believed that she was not required to take action beyond filing her initial appeal, her inexperience with legal matters and unfamiliarity with Board procedures do not warrant waiving the filing deadline. See Wa llace v. Department of Veterans Affairs , 81 M.S.P.R. 88 , ¶ 5, aff’d , 217 F.3d 856 (Fed. Cir. 1999) (Table). The appellant received clear notice of the filing deadline in
the initial decision. See ID at 3. Thus, we find that the appellant has failed to5

show that she exercised due diligence or ordinary prudence in this case that would justify waiving the filing deadline.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RI GHTS 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. D ec. 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 rea d 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 bono6

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:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board