UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

PAMELA S. SHAUT,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

NY-0752-12-0151-I-2

DATE: January 15, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Robert C. Laity, Tonawanda, New York, for the appellant.

Sheila Q. Weimer, Esquire, Buffalo, New York, 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 the appeal for lack of jurisdiction. For the reasons set forth below, the 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

appellant’s petition for review is DISMISSED as untimely filed without good 

cause shown. 5 C.F.R. § 1201.114(e), (g). 

¶2 After affording the appellant her requested hearing, the administrative judge 

issued an initial decision that dismissed for lack of jurisdiction the appellant’s 

appeal of her allegedly involuntary disability retirement. The administrative 

judge informed the appellant that the deadline for filing a petition for review was 

November 1, 2013, and she afforded the appellant correct and complete notice of 

her right to seek review of the initial decision before the Board or the United 

States Court of Appeals for the Federal Circuit. Initial Decision (ID) at 19-23. 

¶3 On June 26, 2014, the appellant submitted to the Clerk of the Board a copy 

of a pleading in a request for reconsideration she had filed before the Equal 

Employment Opportunity Commission (EEOC). Petition for Review (PFR) File, 

Tab 1. The Clerk’s Office interpreted this filing as an attempt to file a belated 

petition for review and informed the appellant that her petition appeared to be 

untimely filed and of her right to file a motion to accept the petition as timely 

filed and/or to waive the time limit for good cause. PFR File, Tab 2. In response, 

the appellant asserts that her appeal is a mixed-case appeal and she properly 

sought review of the initial decision before the EEOC in a timely manner. PFR 

File, Tab 3 at 3. She implicitly argues that she is entitled to Board review of the 

merits of her case and, apparently, that her purportedly timely filing at the EEOC 

on October 5, 2013, excuses the untimely filing of her petition for review before 

the Board. Id. The agency responds in opposition to the petition for review and 

to the appellant’s motion to accept the petition as timely filed and/or to waive the 

time limit for good cause. PFR File, Tab 4. The appellant has not filed a reply to 

the agency’s response.

¶4 To be timely, a petition for review must be filed within 35 days of the date 

of the initial decision’s issuance or, if the decision was received more than 5 days 

after the date of issuance, within 30 days after receipt. Vandagriff v. Department 

of the Army, 106 M.S.P.R. 446, ¶ 4 (2007); 5 C.F.R. § 1201.114(e). Here, the 
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appellant acknowledges that she received the initial decision on October 2, 2013. 

PFR File, Tab 1 at 3. Therefore, her petition for review was due on November 1, 

2013, and was untimely filed by approximately 8 months.

¶5 The Board will waive its filing deadline only upon a showing of good cause 

for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(g). To establish good 

cause for the untimely filing of an appeal, a party 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. 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 The Board has, in appropriate circumstances, found good cause when an 

appellant is reasonably misled by the notice of appeal rights contained in an 

initial decision or otherwise timely, but mistakenly, files a petition for review in 

the wrong forum. Godesky v. Department of Health & Human Services, 

101 M.S.P.R. 280, ¶ 6 (2006) (the appellant’s timely, but mistaken, filing with the 

EEOC was deemed a timely filing with the Board); Means v. Department of 

Labor, 60 M.S.P.R. 108, 111-12 (1993) (good cause found for the delay in filing 

an untimely request for reconsideration of an arbitration decision where the 

petitioner initially sought review with the EEOC and where the arbitrator had 

failed to afford the petitioner proper notice of his appeal rights). Here, however, 

the appellant makes no claim that she was confused or misled by the notice of 

appeal rights or that she mistakenly filed her petition for review with the EEOC 

instead of the Board. Instead, the appellant made the intentional decision to 
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pursue her case before the EEOC instead of the Board on the incorrect basis that 

her case was a mixed-case appeal. When, as in this appeal, a Board 

administrative judge dismisses an appeal over a purportedly mixed case for lack 

of jurisdiction, the EEOC considers that case to be a non-mixed case. See

29 C.F.R. § 1614.302(c)(2)(ii). The EEOC has the authority to hear petitions for 

review of a final Board decision in mixed-case appeals. 29 C.F.R. § 1614.303(a). 

If the appellant wished to challenge the finding that her case is a non-mixed case, 

i.e., if she wished to challenge the administrative judge’s finding that the Board 

lacks jurisdiction over her appeal, her remedy is to file a petition for review of 

the administrative judge’s initial decision with the Board. 

¶7 Under the circumstances of this case, we find that the appellant has failed to 

show that she exercised due diligence or ordinary prudence that would justify 

waiving the filing deadline. The appellant is not pro se and the 8-month delay in 

filing is significant. Moreover, the initial decision afforded the appellant clear, 

accurate, and complete notice of her appeal rights. ID at 19-23. The Board has 

declined to find good cause for an untimely filing where, as here, the initial 

decision clearly notified the appellant of the time limit within which to file her 

petition for review even in cases in which the appellant is pro se. Bonk v. 

Department of Homeland Security, 109 M.S.P.R. 210, ¶ 7, aff’d, 301 F. App’x 

965 (Fed. Cir. 2008). Further, to the extent the appellant impliedly contends that 

she had a right to appeal the initial decision to the EEOC, she has not shown that 

any misinformation caused her untimeliness. Id. 

¶8 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 dismissal of the underlying appeal for lack of jurisdiction.
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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,. 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 

Merit Systems Protection Board appellants before the court. The Merit Systems
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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