UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ELEUTERIA M. SAVAGE,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-15-0226-I-1

DATE: June 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Eleuteria M. Savage, Ridgecrest, California, pro se.

Kymberley McEntee, China Lake, 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 her removal appeal as untimely filed. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. Except as 

expressly MODIFIED by this Final Order, we AFFIRM the initial decision. 

¶2 The agency removed the appellant, effective March 24, 2014, for being 

absent without leave and for failure to follow the letter of requirement. Initial 

Appeal File (IAF), Tab 1 at 15. In the decision letter, the agency advised the 

appellant that she could appeal her removal with the Board and informed her that 

she must file her appeal no later than 30 days after the effective date of her 

removal. Id. at 9-10. Nine months later, on December 23, 2014, the appellant

filed her appeal with the Board and raised a claim of discrimination based on her 

drug addiction. Id. at 2-3, 20. 

¶3 The administrative judge ordered the appellant to submit evidence and 

argument showing that her appeal was timely or that good cause existed for her 

filing delay. IAF, Tab 2 at 2. The appellant responded to the order by arguing

the merits of her appeal and stating that she “would like to go forward.” IAF, 

Tab 3 at 1. The agency responded by asking the administrative judge to dismiss 

the appeal as untimely filed. IAF, Tab 4 at 12. 

¶4 The administrative judge issued an initial decision on January 26, 2015, 

dismissing the appeal as untimely filed. IAF, Tab 5, Initial Decision (ID). In 

reaching his decision, the administrative judge acknowledged the appellant’s pro 

se status but found that she failed to show that the lengthy filing delay was 

reasonable, that she exercised due diligence, or that there were circumstances 
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beyond her control that affected her ability to file her appeal on time. ID at 2-3. 

The appellant has filed a timely petition for review, and the agency has responded

in opposition to her petition. Petition for Review (PFR) File, Tabs 1, 4.

¶5 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). To determine whether an appellant has shown good cause, the 

Board will consider the length of the delay, the reasonableness of his excuse and 

his showing of due 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 unavoidable casualty or 

misfortune which similarly shows a causal relationship to his inability to timely 

file his petition. 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). 

¶6 For the first time on review, the appellant states that she read that she has 

“up to 10 years” to file her appeal with the Board because she has Post-Traumatic 

Stress Disorder (PTSD), although she fails to identify any legal authority to 

support her claim on review. PFR File, Tab 1 at 1. The appellant also submits a 

copy of a Department of Veterans Affairs (VA) Form 221-0781a, describing an 

assault in 2004 that she believes contributed to her PTSD; however, she does not 

assert that her PTSD prevented her from filing a timely appeal. 2

 Id. at 3-5. The 

Board generally will not consider an argument raised for the first time in a 

 2 VA Form 221-0781a is a Statement in Support of a Claim for Service Connection for 

Post-Traumatic Stress Disorder Secondary to Personal Assault, which the appellant 

signed on June 30, 2014. PFR File, Tab 1 at 3-5. In responding to the administrative 

judge’s timeliness order, the appellant argued the merits of her appeal and offered no 

explanation (medical or otherwise) for her failure to file her Board appeal on time. 

IAF, Tab 3. Accordingly, we find that she was not entitled to receive specific notice of 

the factors for establishing good cause for waiver of the filing deadline based on 

physical or mental illness. See Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437

(1998). 
4

petition for review absent a showing that the appellant based her argument on 

new and material evidence not previously available despite her due diligence. 

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant 

in this case did not make the required showing. She also failed to show that the

VA Form 221-0781a, which she signed on June 30, 2014, was unavailable before 

the record closed on appeal despite her due diligence; therefore, the Board will 

not consider this evidence. PFR File, Tab 1 at 5; see Avansino v. U.S. Postal 

Service, 3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115. 

¶7 On review, the appellant offers no additional evidence or argument on the 

timeliness issue. Consequently, we find that she has failed to prove that the 

administrative judge erred in dismissing her appeal as untimely filed without 

good cause. We therefore deny her petition for review. We note that, in arguing 

the merits of her removal, the appellant claimed that her former agency failed to 

provide her with help and safe harbor after she confessed to drug addiction. PFR 

File, Tab 1 at 1-2; IAF, Tab 3 at 1, 3. Because the appellant appeared to raise a 

claim of disability discrimination based on her drug addiction, we are providing 

mixed-case appeal rights consistent with the decision of the U.S. Supreme Court

in Kloeckner v. Solis, 133 S. Ct. 596, 598 (2012).3

 

 3 In Kloeckner, the Board dismissed the appellant’s mixed-case appeal challenging her 

removal as untimely filed, and the appellant sought judicial review of the Board’s 

decision. Ultimately, the U.S. Supreme Court held that the appellant could seek 

judicial review in the district court and not in the U.S. Court of Appeals for the Federal 

Circuit, although the Board dismissed her appeal for procedural reasons, because her 

removal was appealable to the Board and she alleged discrimination prohibited by 

5 U.S.C. § 7702(a)(1). Kloeckner, 133 S. Ct. at 604, 607. In light of Kloeckner, the 

Board provides notice of mixed-case appeal rights in all cases filed by appellants 

affected by an action appealable to the Board who also raised a claim of prohibited 

discrimination on appeal, regardless of whether the Board decided the appeal on the 

merits. Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 14 (2013).
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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 
6

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board