UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CYNTHIA B. BROOKS, 1

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-0752-13-2095-I-1

DATE: May 8, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

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-0752-14-0285-I-1.

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

BACKGROUND

¶2 On May 31, 2013, the agency issued a Notice of Proposed Furlough 

informing the appellant, 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 the 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 the 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 

September 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-0752-14-0285-I-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 to 
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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 if neither party filed a petition for review by August 25, 2014. ID at 

3. 

¶4 The 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 ARGUMENTS 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 the issuance, within 30 days 

after the date 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 become 

the Board’s final decision if neither party filed a petition for review by 

August 25, 2014. ID at 3; see 5 C.F.R. § 1201.113. 

¶6 The appellant filed a petition for 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 appellants.” Id. at 3-4. In an acknowledgment 

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 to 
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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 the 

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 limits 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 significant). 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 Wallace 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 to 
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show that she exercised due diligence or ordinary prudence in this case that 

would justify waiving the filing deadline.

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 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 
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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