UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

ARLENE DRESTE,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER DE-0845-20-0202-I-1

DATE: June 28, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Arlene Dreste , Ajo, Arizona, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member*

* Member Kerner did not participate in the adjudication of this appeal.

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

The appellant has filed a petition for review of the initial decision, which dismissed her appeal as untimely filed without a showing of good cause for the filing delay. Generally, we grant petitions such as this one only in the following circumstances: 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 administrative 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. 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, 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 to find that the filing deadline was March 2, 2020, we AFFIRM the initial decision. Generally, a Board appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). On review, the appellant clarifies that January 30, 2020, was the date she received the decision of the Office of Personnel Management (OPM). Petition for Review File, Tab 1 at 5. Accordingly, the deadline for the appellant to file her appeal was Monday, March 2, 2020. See 5 C.F.R. § 1201.23 (providing that if the date that would ordinarily be the last date for filing falls on a weekend or Federal holiday, the filing deadline will include the first workday after that date). Her appeal was therefore untimely filed by 24 days. The Board will dismiss an untimely filed appeal unless the appellant shows good cause for the delay in filing. 5 C.F.R. § 1201.22(b). To establish good 2cause for the untimely filing of an appeal, an 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 appeal. 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). Here, the appellant contends that her appeal was untimely filed due to medical problems. To establish that an untimely filing was the result of an illness, the party must: (1) identify the time period during which she suffered from the illness; (2) submit medical evidence showing that she suffered from the alleged illness during that time period; and (3) explain how the illness prevented her from timely filing her appeal. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). The proffered medical evidence must address the entire period of the delay. Perrot v. Department of the Navy , 84 M.S.P.R. 468, ¶ 6 (1999); Nesby v. Office of Personnel Management , 81 M.S.P.R. 118, ¶ 7 (1999). The appellant has provided evidence that she was medically incapacitated during the period from her admission to the hospital for scheduled surgery on February 11 to her discharge from the rehabilitation facility on February 29. Initial Appeal File, Tab 4 at 4-12. However, she has not alleged that she was medically unable to file her appeal during the period between her receipt of the OPM decision and her admission to the hospital. Nor has she provided evidence that her outpatient treatment and remaining limitations rendered her incapable of filing an appeal during the more than 3 weeks that passed between her discharge from the rehabilitation facility and the filing of her appeal. See Perrot , 384 M.S.P.R. 468, ¶ 8; Nesby , 81 M.S.P.R. 118, ¶ 7. While it is understandable

that the appellant may have been preoccupied with other matters during the periods before and after her incapacitation, general personal difficulties do not constitute good cause for waiver of a filing deadline. Crozier v. Department of Transportation , 93 M.S.P.R. 438, ¶ 9 (2003). Furthermore, a filing delay of 3
weeks is not minimal. See id. , ¶ 7 (finding a delay of 13 days was not minimal). Although the appellant’s pro se status is a factor weighing in her favor, we agree with the administrative judge that it is insufficient to establish good cause for her failure to file a timely appeal. See id

. , ¶ 11.

NOTICE OF APPEAL RIGHTS 2 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 may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your
chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions

2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 5judicial review of this decision

— including a disposition of your discrimination

claims

— by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. If you submit a request for review to the EEOC 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 6If you submit a request for review to the EEOC 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, N.E. Suite 5SW12G Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b) (9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx

.

FOR THE BOARD:

______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 8