UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GARY S. SCHNELL,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBERS

CH-1221-12-0770-W-3

CH-0752-13-0056-I-3

DATE: July 13, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gary S. Schnell, Sparta, Wisconsin, pro se.

Eric J. Teegarden, Esquire, Fort McCoy, Wisconsin, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed petitions for review of the two initial decisions, both 

of which dismissed his appeals as untimely filed. Generally, we grant petitions 

such as these only when: the initial decision contains erroneous findings of 

material fact; the initial decisions are based on an erroneous interpretation of 

statute or regulation or the erroneous application of the law to the facts of 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

cases; the administrative judge’s rulings during either the course of the appeals or 

the initial decisions 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 these appeals, we conclude that the 

petitioner has not established any basis under section 1201.115 for granting the 

petitions for review. Therefore, we DENY the petitions for review and AFFIRM 

the initial decisions, which are now the Board’s final decisions. 5 C.F.R. 

§ 1201.113(b). 

BACKGROUND

¶2 The appellant previously had filed an individual right of action (IRA)

appeal claiming, inter alia, that the agency denied him a temporary promotion in 

retaliation for whistleblowing. See Schnell v. Department of the Army, MSPB 

Docket No. CH‐1221‐07‐0700‐W-1. The Board found that he was the victim of 

retaliation for whistleblowing and ordered the agency to promote him. See

Schnell v. Department of the Army, 114 M.S.P.R. 83, 95 (2010). As a result, the 

agency promoted the appellant to an Environmental Engineer, GS‐0819-12

position. Subsequently, the appellant filed a petition for enforcement arguing that 

the agency had not complied with the Board’s order; however, an administrative 

judge found that the agency already had complied with the Board’s order by 

promoting the appellant, though it had not complied with respect to other issues

in the Board’s order. See Schnell v. Department of the Army, MSPB Docket 

No. CH-1221-07-0700-B-1, Recommendation (Oct. 18, 2011). In response to the 

administrative judge’s recommendation in the compliance matter, the appellant 

disputed the administrative judge’s compliance findings concerning the 
3

promotion. See Schnell v. Department of the Army, MSPB Docket No. CH-1221-

07-0700-X‐2 (compliance referral matter). 

¶3 While the compliance referral matter was pending, the agency removed the 

appellant from his Environmental Engineer position for unacceptable 

performance. The appellant simultaneously filed a Board appeal challenging his 

removal, Schnell v. Department of the Army, MSPB Docket No. CH-0752-13-

0056-I-1, Initial Appeal File (IAF), Tab 1, and an IRA appeal alleging that the 

agency took several personnel actions against him in retaliation for his 

whistleblowing, Schnell v. Department of the Army, MSPB Docket No. CH-1221-

12-0770-W-1 (W-1 AF), Tab 1. 

¶4 The administrative judge issued initial decisions for each appeal finding 

that the Board’s final decision in the compliance referral matter could 

substantially and dramatically alter the basis for adjudicating his removal and 

IRA appeals. IAF, Tab 6, Initial Decision (I-1 ID) at 2; W-1 AF, Tab 7, Initial 

Decision (W-1 ID) at 3. For that reason, the administrative judge dismissed the 

appellant’s removal and IRA appeals without prejudice to refiling within 30 days 

after the appellant received the Board’s Final Order in the compliance referral 

matter. I-1 ID at 2; W-1 ID at 3. 

¶5 The Board issued a Final Order finding the agency in compliance in the 

compliance referral matter. See Schnell v. Department of the Army, 

MSPB Docket No. CH-1221-07-0700-X-2, Final Order (Aug. 21, 2014). On 

September 18, 2014, the appellant timely refiled his removal and IRA appeals, 

stating his intention also to appeal the Board’s August 21, 2014 Final Order on 

his compliance appeal to the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit). Schnell v. Department of the Army, MSPB Docket 

No. CH-0752-13-0056-I-2, Appeal File (I-2 AF), Tab 1; Schnell v. Department of 

the Army, MSPB Docket No. CH-1221-12-0770-W-2, Appeal File (W-2 AF), 

Tab 1. The administrative judge found, as before, that the Federal Circuit’s

decision in the appellant’s compliance action could substantially and dramatically 
4

alter the basis for adjudicating his removal and IRA appeals, and that the interests 

of justice and administrative efficiency would be served best by holding in 

abeyance his removal and IRA appeals to await a decision from the Federal 

Circuit concerning it. I-2 AF, Tab 3, I-2 ID at 3; W-2 AF, Tab 3, W-2 ID at 3-4. 

For that reason, the administrative judge issued initial decisions dismissing, for 

the second time, both appeals without prejudice to the appellant’s right to refile 

within 30 days after he received the Federal Circuit’s decision adjudicating his

appeal of the compliance action. I‐2 AF, Tab 3, I-2 ID at 3; W-2 AF, Tab 3, W-2 

ID at 4. 

¶6 On March 25, 2015, the Federal Circuit issued its decision affirming the 

Board’s compliance findings. Schnell v. Department of the Army, 605 F. App’x 

974, 975 (Fed. Cir. 2015). On June 10, 2015, the appellant refiled his removal 

and IRA appeals. Schnell v. Department of the Army, MSPB Docket 

No. CH-0752-13-0056-I-3, Appeal File (I-3 AF), Tab 1; Schnell v. Department of 

the Army, MSPB Docket No. CH-1221-12-0770-W-3, Appeal File (W-3 AF), 

Tab 1. Because the appeals appeared untimely refiled by 47 days, the 

administrative judge issued show cause orders on timeliness. I-3 AF, Tab 3

at 2-3; W-3 AF, Tab 3 at 2-3. In response, the appellant acknowledged that the 

Federal Circuit’s decision in the compliance action was dated March 25, 2015. 

However, he asked the administrative judge to waive the filing deadline for his 

refiled Board appeals in part because he forgot about the deadline while he was 

“weighing his options” and considering whether to appeal the Federal Circuit’s

decision to the U.S. Supreme Court. I-3 AF, Tab 7 at 1; W-3 AF, Tab 7 at 1. In 

addition, the appellant asked the administrative judge to dismiss the appeals 

without prejudice “until the [Office of Special Counsel] rules on the ‘new 

evidence’ that [he planned] to submit.” I-3 AF, Tab 7 at 2; W-3 AF, Tab 7 at 2. 

The appellant’s purportedly new evidence referred to “the evidence that [he] 

submitted to the Chicago Regional Office and to the Washington Office after 
5

23 July 2007.” I-3 AF, Tab 7 at 2; W-3 AF, Tab 7 at 2. The appellant also raised 

additional arguments unrelated to the timeliness of these refiled appeals. 

¶7 Based on the written record, the administrative judge dismissed the refiled 

appeals as untimely with no good cause shown for the delay. I‐3 AF, Tab 8, 

I-3 ID; W-3 AF, Tab 8, W-3 ID. The administrative judge found that the 

appellant did not show good cause for the refiling delay because the deadline was 

clear and unambiguous. He also found that the appellant stated that he forgot 

about the filing deadline, not that he was unaware of it, and that, in his mind, he 

had 90 days to refile his appeals. The administrative judge further found that the 

appellant offered no other reason to explain why he failed to refile his appeals 

before the deadline. I-3 ID at 6; W-3 ID at 6. 

¶8 The appellant filed substantially similar petitions for review for the refiled

removal and IRA appeals, and the agency opposes both. I-3 Petition for Review 

(PFR) File, Tabs 1, 3; W‐3 PFR File, Tabs 1, 3. We join these cases because 

doing so will expedite the processing of these cases on review and will not 

adversely affect either party. See 5 U.S.C. § 7701(f)(2). 

ANALYSIS

¶9 It is undisputed that the refiled appeals are untimely. The Board has 

identified the following factors as supporting a finding of good cause for waiving 

a refiling deadline: (1) the appellant’s pro se status, his timely filing of the initial 

appeal, his intent throughout the proceedings to file an appeal, his minimal delay 

in refiling, and any justifiable confusion; (2) the small number of dismissals 

without prejudice; (3) an arbitrary refiling deadline; (4) the agency’s failure to 

object to the dismissal without prejudice; and (5) the lack of prejudice to the 

agency in allowing the refiled appeal. Gaddy v. Department of the 

Navy, 100 M.S.P.R. 485, ¶ 13 (2005); see I-3 AF, Tab 3 at 2-3; W-3 AF, Tab 3 
6

at 2-3. The appellant bears the burden of proof, by a preponderance of the 

evidence, regarding issues of timeliness. 2

 5 C.F.R. § 1201.56(b)(2)(i)(B). 

¶10 The appellant argues, for the first time on review, that the Board should 

find good cause for waiving the filing deadline based on the Gaddy factors. 3

 

I-3 PFR File, Tab 1 at 4; W‐3 PFR File, Tab 1 at 4. Applying the Gaddy factors 

in this case, we find no reason to disturb the initial decisions dismissing these 

appeals as untimely refiled. First, it is true that this pro se appellant timely filed 

his initial appeals and he stated his intent to refile his appeals. However, his 

undisputed 47‐day delay in refiling his appeals is not minimal and any alleged 

confusion about the refiling deadline is implausible considering that he is an 

experienced appellant familiar with the Board’s deadlines and procedures for 

refiled appeals. Second, his appeals were previously dismissed without prejudice 

twice, yet he responded to the show cause orders on timeliness by asking for 

another dismissal without prejudice. I-3 AF, Tab 7 at 2; W‐3 AF, Tab 7 at 2. 

Third, the refiling deadline was not arbitrary, but based on the appellant’s receipt 

of an anticipated Federal Circuit decision in a related compliance action that 

could have affected the joined appeals. Fourth, contrary to the appellant’s 

arguments on review that the agency did not object to his dismissals without 

prejudice to refiling and that the agency would not be prejudiced if he refiled his 

appeals, I‐3 PFR File, Tab 1 at 4; W‐3 PFR File, Tab 1 at 4, the agency opposes 

his petitions for review and asks the Board to uphold the initial decisions 

dismissing his appeals as untimely filed without good cause shown, I-3 PFR File, 

 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 

3 On review, the appellant does not explain his failure to address the Gaddy factors in 

his responses to the show cause orders on timeliness, although the administrative judge 

informed him that the Board considers these factors in determining whether an appellant 

has shown good cause to waive the refiling deadline. I-3 AF, Tab 3 at 2-3; W‐3 AF, 

Tab 3 at 2‐3. 
7

Tab 3 at 7‐8; W-3 PFR File, Tab 3 at 7-8. Fifth, despite the lack of any apparent 

prejudice to the agency in allowing the refiled appeals, we find that the record 

does not otherwise support finding that the appellant established good cause to 

excuse his untimely refiling. 

¶11 Specifically, the initial decisions dismissing the appeals without prejudice 

clearly identified that the appellant was required to refile his appeals within 

30 days after he received the Federal Circuit’s decision adjudicating his appeal of 

the compliance action. I-2 AF, Tab 3 at 3; W-2 AF, Tab 3 at 4. The appellant, 

however, offers no explanation for his failure to timely refile his appeals or to ask 

for an extension of time to refile his appeals within the relevant time period. 

See generally Nelson v. U.S. Postal Service, 113 M.S.P.R. 644, ¶¶ 9–10 (2010) 

(finding no good cause for a pro se appellant’s 11⁄2 month delay in refiling his 

appeal where the initial decision clearly identified the date for refiling and he 

failed to provide any evidence justifying any confusion over the deadline or his 

failure to request an extension), aff’d, 414 F. App’x 292 (Fed. Cir. 2011). 

¶12 We have considered the appellant’s remaining arguments, including his 

claim that the administrative judge misconstrued his factual arguments on appeal,

but we find no legal basis for disturbing the initial decisions dismissing the 

appeals as untimely refiled without showing good cause.

4 I-3 PFR File, Tab 1 

at 1; W-3 PFR File, Tab 1 at 1. We therefore deny his petitions for review. 

 4 For example, the appellant appears to assert that, below, the administrative judge erred 

in finding no good cause shown for his untimely refiling because he had a conversation 

with someone in the regional office on June 9, 2015, that left him uncertain about the 

filing deadline. I‐3 AF, Tab 7 at 1; W‐3 AF, Tab 7 at 1. As this conversation took 

place after the filing deadline, we do not see how it affected his ability to timely refile 

his appeals. The appellant also argues, among other things, that he was “preoccupied 

with the judgment and opinion of the Federal Circuit and the possibilities for appeal to 

either the Federal Circuit itself or to the Supreme Court.” I‐3 AF, Tab 7 at 4; W‐3 AF, 

Tab 7 at 4. We find that the appellant’s indecision about appealing the Federal 

Circuit’s decision in his compliance action does not constitute good cause for waiving 

the refiling deadline in these joined appeals. 
8

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S. 

Court of Appeals for the Federal Circuit. 

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 want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

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 about the U.S. Court of Appeals for the Federal Circuit is 
9

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. Additional 

information about other 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. 

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

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.

______________________________

Jennifer Everling

Acting Clerk of the Board