UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GARY SMITH,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

AT-0432-13-0183-I-1

DATE: August 12, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL∗

Gary L. Printy, Esquire, Tallahassee, Florida, for the appellant.

Major Daniel J. Watson, Eglin Air Force Base, Florida, 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 with prejudice pursuant to the appellant’s request. For the 

reasons set 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).

 ∗ A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

¶2 The appellant filed an initial appeal challenging his performance-based 

removal. Initial Appeal File (IAF), Tab 1. Other than a designation of 

representative form, IAF, Tab 7, the appellant filed nothing else before requesting 

that the appeal be dismissed without prejudice, IAF, Tab 13. The agency 

objected, asserting that such a dismissal would unduly prejudice its ability to 

defend itself against the appellant’s claims, citing the appellant’s failure to 

respond to its discovery requests, the potential unavailability of witnesses, and its 

potential back pay liability. IAF, Tab 14. The agency subsequently filed a timely 

motion to compel discovery. IAF, Tab 15; see 5 C.F.R. § 1201.72(d)(3). The 

administrative judge then issued an order in which he noted the appellant’s failure 

to file a prehearing submission, participate in the scheduled prehearing 

conference, and respond to the agency’s discovery. IAF, Tab 17. The 

administrative judge ordered the appellant to correct his deficiencies and to show 

cause why he should not be sanctioned for his failure to comply with the Board’s 

orders. Id. Also, citing both the agency’s objection and the appellant’s failure to 

state the basis for his request, the administrative judge denied the appellant’s 

motion to dismiss the appeal without prejudice. Id. The appellant did not 

respond and instead filed a pleading titled notice of voluntary dismissal with 

prejudice. IAF, Tab 18. Once again, the appellant did not state the basis for his 

request. Id. Nevertheless, the administrative judge granted the appellant’s 

request and dismissed the appeal with prejudice. IAF, Tab 19, Initial Decision 

(ID). 

¶3 The Board’s regulations require that a petition for review must be filed 

within 35 days after the date of the issuance of the initial decision, or, if a party 

shows that he received the initial decision more than 5 days after it was issued, 

within 30 days after the receipt of the initial decision. 5 C.F.R. § 1201.114(e); 

Via v. Office of Personnel Management, 114 M.S.P.R. 632, ¶ 4 (2010). The 

record shows that the appellant and his representative both registered as e-filers. 

IAF, Tabs 1, 7. Registration as an e-filer constitutes consent to accept electronic 
3

service of documents issued by the Board and the Board’s regulations further 

provide that Board documents served on registered e-filers are deemed received 

on the date of electronic submission. 5 C.F.R. § 1201.14(e), (m)(2). The record 

reflects that the initial decision in this matter was transmitted to the appellant and 

his representative by electronic mail on February 28, 2013. ID at 7. The initial 

decision became the Board’s final decision on April 4, 2013. ID at 2; 5 C.F.R. 

§ 1201.113. 

¶4 The appellant filed his petition for review on April 18, 2014. Petition for 

Review (PFR) File, Tab 1. Therefore, the appellant’s petition for review was 

over 1 year late. 5 C.F.R. § 1201.114(e). The Board’s regulations require that a 

late-filed petition for review be accompanied by a motion that shows good cause 

for the untimely filing along with a sworn affidavit which includes, among other 

things, a specific and detailed description of the circumstances causing the late 

filing. 5 C.F.R. § 1201.114(g). Because the appellant e-filed his petition for 

review, the online interview informed him that the finality date for his decision 

had passed and explained his burden to demonstrate good cause for his untimely 

filing. PFR File, Tab 1 at 3. The appellant therein discussed the procedural 

history of his removal and subsequent appeal, and he also described in detail why 

he wanted the Board to reopen his appeal and dismiss it without prejudice, but he 

failed to address the lateness of his petition for review, much less provide good 

cause for its untimely filing. Id. at 3-10. 

¶5 Generally, the withdrawal of an appeal is an act of finality that has the 

effect of removing the appeal from the Board’s jurisdiction, and, absent unusual 

circumstances such as misinformation or new and material evidence, neither of 

which the appellant raises herein, the Board will not reopen or reinstate an appeal 

once it has been withdrawn. Pradier v. U.S. Postal Service, 113 M.S.P.R. 495, 

¶ 7 (2010). Where an appellant withdrew his appeal and then filed a timely 

petition for review of the initial decision dismissing the appeal as withdrawn, the 

Board will examine whether the withdrawal is voluntary. Id., ¶ 9 n.1 (citing 
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Lincoln v. U.S. Postal Service, 113 M.S.P.R. 486, ¶ 7 (2010)). In this 

circumstance, however, the Board treats the appellant’s untimely petition for 

review as a request to reopen his appeal. See Lincoln, 113 M.S.P.R. 486, ¶¶ 10, 

13. The Board may reopen a case in the interests of justice but will only do so if 

the appellant has exercised due diligence in seeking reopening. Page v. 

Department of Transportation, 110 M.S.P.R. 492, ¶ 7 (2009). To establish good 

cause for an untimely filing, 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). Importantly, the 

Board’s authority to reopen a case is limited by the requirement that such 

authority be exercised within a reasonably short period of time, which is usually 

measured in weeks, not months or years. Arenal v. Office of Personnel 

Management, 106 M.S.P.R. 272, ¶ 10 (2007), aff’d, 264 F. App’x 891 (Fed. Cir. 

2008). As noted above, the appellant’s request to reopen his case is over 1 year 

old and his failure to address that delay, much less establish good cause for it, 

does not exhibit the requisite diligence and effectively precludes the relief he 

seeks. 

¶6 Lastly, we note that the initial decision did not inform the appellant of his 

mixed case appeal rights even though the appellant was affected by an action that 

is appealable to the Board and he alleged prohibited discrimination. See

Cunningham v. Department of the Army, 119 M.S.P.R. 147, ¶ 14 (2013). We 

have therefore included proper notice of the appellant’s further review rights 

here. See Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 24 

(2010). 

¶7 Accordingly, we DISMISS the petition for review as untimely filed without 

good cause shown. This is the final decision of the Board regarding the 

timeliness of the petition for review. The initial decision remains the final 

decision of the Board regarding the appellant’s appeal. 
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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. § 2000e-5(f) and 

29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board