UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LINDA ANN MENDENHALL,

Appellant,

v. 

DEPARTMENT OF THE ARMY,

Agency. 

DOCKET NUMBER

AT-3443-15-0502-I-3

DATE: September 30, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL*

Linda Ann Mendenhall, Esquire, Redstone Arsenal, Alabama, pro se. 

Kyle C. Barrentine, Esquire, and Toby V. Davis, Esquire, Redstone 

Arsenal, Alabama, 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dismissed her appeal as withdrawn. 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* A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 On April 24, 2015, the appellant, a GS-14 Attorney Advisor, filed an appeal 

of the agency’s “withdrawal of approval for attorney qualifications.” 

Mendenhall v. U.S. Department of the Army, MSPB Docket No. AT-3443-15-

0502-I-1, Initial Appeal File (IAF), Tab 1. While the appeal was pending, the 

appellant requested to stay the case for 60 days because of an upcoming surgery. 

IAF, Tab 4. The administrative judge dismissed the appeal without prejudice to 

refiling, instructing the appellant that she must refile the appeal no later than 

August 3, 2015. IAF, Tab 5. On July 24, 2015, the appellant refiled her appeal 

and requested that the appeal be dismissed without prejudice to refiling for a 

minimum of 8 additional weeks. Mendenhall v. U.S. Department of the Army, 

MSPB Docket No. AT-3443-15-0502-I-2, Appeal File (I-2 AF), Tab 1. The 

administrative judge granted the appellant’s request and dismissed the appeal 

without prejudice to refiling by October 30, 2015. I-2 AF, Tab 7. On January 26,

2016, the appellant refiled the appeal, asserting that she had attempted to refile 

the appeal through the Board’s electronic filing system in October 2015 and later 

submitted copies of appeal forms showing that she had filed appeals on 

October 28, 2015. Mendenhall v. U.S. Department of the Army, MSPB Docket 

No. AT-3443-15-0502-I-3, Appeal File (I‐3 AF), Tab 1 at 3, Tab 3 at 4‐9. The 

agency moved to dismiss the appeal as untimely refiled by 3 months, explaining 

that, although the appellant had refiled appeals in her other Board cases on 

October 28, 2015, those filings did not identify the present case and the appellant 

failed to serve any document concerning the present case on the agency until 

January 26, 2016. I‐3 AF, Tab 2. 

¶3 On March 23, 2016, the parties jointly filed a negotiated settlement 

agreement resolving the appellant’s outstanding cases. I-3 AF, Tab 4. In an 

initial decision dated April 26, 2016, the administrative judge indicated that the 

parties had requested that the appeal be dismissed in accordance with the terms of 
3

the settlement agreement and that they understood that the agreement would not 

be entered into the Board’s record in this case because of the unresolved issue of 

the Board’s jurisdiction. I-3 AF, Tab 5, Initial Decision (ID). Pursuant to the 

parties’ request, the administrative judge dismissed the appeal as withdrawn in 

accordance with the terms of the settlement agreement. ID at 2. The initial 

decision informed the parties that the decision would become final on May 31,

2016, unless a petition for review was filed before that date. Id. 

¶4 On June 27, 2016, the Board received the appellant’s petition for review. 

Petition for Review (PFR) File, Tab 1. On June 29, 2016, the Clerk of the Board

informed the appellant that her petition for review was untimely filed because it 

was not filed on or before May 31, 2016, and notified her of her opportunity to 

file a motion, signed under penalty of perjury, or an affidavit showing either that 

the petition was timely filed or that good cause existed to waive the filing 

deadline. PFR File, Tab 2 at 1. On July 12, 2016, the appellant filed a motion 

asking the Board to accept her petition for review as timely filed or to waive the 

filing deadline for good cause shown. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 A petition for review must be filed within 35 days after the date of issuance 

of the initial decision or, if the petitioner shows that the initial decision was 

received more than 5 days after the date of issuance, within 30 days after the date 

the petitioner received the initial decision. 5 C.F.R. § 1201.114(e). Here, the 

appellant concedes that she received the April 26, 2016 initial decision on 

April 30, 2016. PFR File, Tab 3 at 18. Because she received the initial decision 

within 5 days of issuance, the petition for review needed to be filed within 

35 days of issuance. 5 C.F.R. § 1201.114(e). Thus, her petition for review must 

have been filed no later than May 31, 2016, the 35th day following the issuance 

of the initial decision. 5 C.F.R. § 1201.114(e). However, she filed it on June 27,

2016—nearly 1 month past the filing deadline. PFR File, Tab 1. 
4

¶6 In response to the Clerk’s order on timeliness, the appellant asserts, among 

other things, that she filed a timely petition for review with the regional office on 

May 23, 2016. PFR File, Tab 3 at 4. Although the Board will accept an 

otherwise timely appeal filed with the wrong Board office as timely filed,

Branch v. Department of the Army, 110 M.S.P.R. 663, ¶ 6 (2009), the appellant 

here has provided no evidence in support of her claim that she misdirected a 

timely petition for review to a regional office. PFR File, Tabs 1, 3. Absent any 

evidence showing that the appellant submitted a timely petition for review to a 

Board office, or any evidence showing that a Board office received such a filing, 

we must dismiss her petition for review as untimely filed unless she can show 

good cause for her untimely filing. 

¶7 The Board will waive the time limit for filing a petition for review only on 

a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To 

establish good cause for an untimely filing, a party must show that she exercised 

due diligence or ordinary prudence under the particular circumstances of the case. 

Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5 (2014); 

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 

that similarly shows a causal relationship to her inability to timely file her 

petition for review. Gaetos, 121 M.S.P.R. 201, ¶ 5; 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). 

¶8 As noted above, the appellant’s petition for review is untimely filed by 

approximately 1 month. Such a delay is significant. See Terrell v. U.S. Postal 
5

Service, 114 M.S.P.R. 38, ¶ 9 (2010) (finding that a 42‐day delay is significant); 

Summers v. U.S. Postal Service, 87 M.S.P.R. 403, ¶¶ 6, 12 (2000) (finding that a 

delay of nearly 1 month and a delay of 15 days are significant), aff’d, 25 F. App’x 

827 (Fed. Cir. 2001). Further, although the appellant is pro se, she is an attorney 

who should have recognized the importance of filing deadlines. Thus, these 

factors weigh against a finding of good cause. 

¶9 The appellant argues, however, that good cause exists to waive the time 

limit for filing her petition for review because: she recently learned that her 

union representative is not a licensed attorney in the state of Alabama; she 

would not have relied on her union representative’s advice if she had known that 

she was not an attorney; the union representative breached her ethical 

responsibility to the appellant by failing to advise her that she was not an 

attorney; and her union representative gave her “improper advice” regarding 

jurisdiction, mishandled the appeals, was unprepared for mediation, and failed to 

communicate case details to her. PFR File, Tab 3 at 4-6, 8, 10. Although the 

appellant is dissatisfied with the actions of her former union representative, her 

complaints do not establish good cause for her untimely filing because an 

appellant is responsible for the errors of her chosen representative. Sofio v. 

Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). Thus, even if the filing

delay is somehow attributable to the union representative’s errors or omissions, 

this does not establish good cause for the untimely filing. Furthermore, we fail to 

see, and the appellant has not explained, how the union representative’s status as 

a nonattorney representative, or an attorney licensed in a state other than 

Alabama, affected the appellant’s ability to file a timely petition for review. 

¶10 The appellant also asserts that she was unable to timely file the petition for 

review because of health issues. PFR File, Tab 3 at 11‐12. The Board will find 

good cause for an untimely filing when a party demonstrates that she was unable 

to timely file her petition due to illness, or mental or physical incapacity. Holley 
6

v. U.S. Postal Service, 97 M.S.P.R. 20, ¶ 8 (2004). To establish that the untimely 

filing was the result of a medical condition, an appellant must identify the time 

period during which she was incapacitated, submit medical evidence showing that 

she suffered from the alleged medical condition during the time period, and 

explain how the medical condition prevented her from timely filing her petition or 

a request for extension of time. Id. Here, although the appellant was notified of 

the requirements for showing that her untimely filing was the result of a medical 

condition, PFR File, Tab 2 at 7 n.1, the only evidence she has provided is a

June 6, 2016 notice from the insurance company stating that a medical procedure 

has been approved for coverage, PFR File, Tab 3 at 37-38. This notice is entirely 

insufficient to show that the appellant suffered from a medical condition during 

the relevant time period and that such medical condition prevented her from 

timely filing her petition or a request for an extension. As such, the appellant’s 

alleged medical impairment does not establish good cause for her untimely filed 

petition for review. 

¶11 The appellant also appears to contend on review that she was confused as to

the status of her case. Id. at 4. Specifically, she states that she did not request an 

extension to file the petition for review because she “believed the case was still 

before [the administrative judge] as [she] properly filed an independent right of 

appeal to her ... which was never dismissed” and because “the Respondent never 

opposed [the administrative judge] having jurisdiction.” Id. An appellant’s 

confusion and lack of sophistication, which contribute to a late filing, may be 

taken into account when determining whether good cause for a late filing exists. 

Forst v. Office of Personnel Management, 97 M.S.P.R. 142, ¶ 7 (2004). An 

appellant must show, however, that such confusion is related to a specific 

ambiguity in either the instructions he received or in a Board procedure. Id. 

Here, the appellant has not identified a specific ambiguity in the initial decision 

or in any other instructions she received warranting her mistaken beliefs. PFR 
7

File, Tabs 1, 3. The initial decision clearly stated that the appeal was being 

dismissed as withdrawn and provided the exact date by which a petition for 

review must be filed. ID at 1-2. Thus, the appellant’s alleged confusion does not 

contribute to a finding of good cause for her untimely petition for review. 

¶12 The appellant’s remaining allegations regarding alleged conflicts of

interest, the unresponsiveness of various Government officials to whom she has 

reported conflicts of interest and other issues, outstanding Freedom of 

Information Act requests, and her challenges to the settlement agreement and the 

underlying agency actions also do not establish good cause for her filing delay. 

PFR File, Tab 3 at 3-11. None of these allegations, even if true, show the 

existence of circumstances beyond the appellant’s control that affected her ability 

to comply with the filing deadline or that she exercised due diligence under the 

circumstances. See Gaetos, 121 M.S.P.R. 201, ¶ 5. 

¶13 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 appeal as withdrawn. 

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). 
8

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 

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 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 a list of attorneys who have expressed 
9

interest in providing 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