UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SPECIAL COUNSEL,

Petitioner,

v.

ANNIE HERBERT,

Respondent.

DOCKET NUMBER

CB-1215-14-0011-T-1

DATE: April 19, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Clarissa Pinheiro, Esquire, Mariama Liverpool, Esquire, and Rachel A. 

Venier, Esquire, Washington, D.C., for the petitioner. 

Annie Herbert, Indianapolis, Indiana, pro se. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The respondent has filed a petition for review of the initial decision, which 

dismissed as settled the complaint that the petitioner brought against her. For the 

reasons set forth below, the respondent’s petition for review is DISMISSED as 

untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 On June 18, 2014, consistent with 5 C.F.R. § 1201.36(b), an administrative 

law judge designated by the Board sua sponte consolidated complaints brought by 

the petitioner against three individually-named respondents, including the 

respondent in this matter.

2

 The administrative law judge did so under MSPB

Docket No. CB-1215-14-0019-T-1, Consolidation Appeal File, Tab 1. 

Notwithstanding, for the purpose of allowing greater flexibility in removing 

respondents from the consolidation, the administrative law judge also issued 

separate docket numbers for each of the three respondents, which he considered 

as their individual docket numbers. Id. The cases proceeded as consolidated 

under MSPB Docket No. CB-1215-14-0019-T-1 until September 26, 2014, when, 

in the case of this respondent, the administrative law judge removed her from the 

consolidation3 because the respondent reached a settlement with the petitioner 

resolving the complaint against her. Office of Special Counsel v. Herbert, MSPB 

Docket No. CB-1215-14-0011-T-1, Initial Appeal File (IAF), Tab 8, Tab 9, Initial 

Decision (ID). On that basis, the administrative law judge issued an initial 

decision dismissing the complaint as settled. ID. The decision’s finality date was 

October 31, 2014. 

 2 The complaints involved the respondents’ alleged improper manipulation of four 

competitive examinations, and discrimination on the basis of political affiliation in 

violation of 5 U.S.C. § 2302(b)(1)(E) and (b)(6). 

3 Earlier, on September 3, 2014, the administrative law judge removed Respondent 

John Kappel’s case from the consolidation based upon the parties having reached a 

settlement agreement, and he dismissed the case as settled. Office of Special Counsel v. 

Kappel, MSPB Docket No. CB-1215-14-0010-T-1, Initial Decision (Sept. 3, 2014). 

Respondent Kappel has not filed a petition for review of that decision. Respondent 

Coffman’s complaint continued through hearing and to adjudication wherein the 

administrative law judge found the complaint against her not proven. Office of Special 

Counsel v. Coffman, MSPB Docket No. CB-1215-14-0012-T-1, Initial Decision (Oct. 6, 

2015). The Office of Special Counsel has challenged that decision and it is currently 

pending before the Board on petition for review. It will be addressed in a 

separate decision. 
3

¶3 On November 4, 2015, the respondent, appearing pro se,

4 filed a petition for 

review of that decision. Petition for Review (PFR) File, Tab 1. She asked that 

the settlement agreement be rescinded based on the decision of the administrative 

law judge “exonerating” Respondent Coffman. Id. at 1. Specifically, the 

respondent argued that “[n]one of the executive level decision makers/key players 

have been held accountable for the action of their respective offices; yet, I have 

experienced financial hardship, embarrassment, persecution, and been made the 

scape goat for actions that were beyond my control and not initiated by me.” Id. 

The Clerk of the Board informed the respondent that her petition for review was 

untimely filed and instructed her to file a motion for waiver of the time limit, 

including an affidavit or a statement signed under the penalty of perjury showing 

good cause for the delay. PFR File, Tab 2. The respondent filed a motion signed 

under the penalty of perjury wherein she repeated her claim that, having reviewed 

Respondent Coffman’s decision as issued by the administrative law judge, she 

knows that none of the senior executive leaders involved in the case had been 

held accountable for their role/actions, and that she was not a willing participant 

in the actions that led to a violation of the merit systems principles. PFR File, 

Tab 4 at 2. The petitioner has responded, urging that the petition for review be 

dismissed as untimely filed with no showing of good cause. PFR File, Tab 5. 

ANALYSIS

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

issuance of the initial decision, or, if the respondent shows that the initial 

decision was received more than 5 days after it was issued, within 30 days after 

the date the respondent received the initial decision. 5 C.F.R. §§ 1201.113,

 4 The respondent was represented by counsel from the outset of this matter up to and 

including the signing of the settlement agreement. IAF, Tabs 5, 8. In a November 27, 

2015 letter, the respondent’s representative below stated that he was unaware that the 

respondent had filed a petition for review and he no longer represented her. Petition for 

Review File, Tab 3. 
4

114(d). Although the respondent acknowledges that she received the initial 

decision in a timely fashion, PFR File, Tab 4 at 2, she nonetheless filed her 

petition for review on November 4, 2015, more than a year after the deadline for 

filing a petition for review. 

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

for the filing delay. 5 C.F.R. § 1201.114(f). 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. Alonzo v. Department of 

the Air Force, 4 M.S.P.R. 180, 184 (1980). More specifically, to determine 

whether a respondent 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 Here, the initial decision expressly advised the respondent, in plain 

language, of the time limit and procedures regarding obtaining Board review. ID 

at 4. The respondent’s failure to file her petition for review with the Board in 

accordance with those unambiguous instructions constitutes a failure to exercise 

due diligence or ordinary prudence. See Fredrick v. Department of Justice, 

76 M.S.P.R. 477, 480 (1997). 

¶7 However, the respondent’s argument on review is more akin to a claim of 

new evidence. Where an initial decision dismisses the case as settled, newly

discovered evidence may constitute good cause for the untimely filing of a 

petition for review, if the newly discovered evidence established that the 

settlement agreement was invalid. Dickson v. General Services Administration, 

85 M.S.P.R. 7, ¶ 6 (1999), aff’d, 243 F.3d 566 (Fed. Cir. 2000) (Table). 
5

¶8 While the decision in Respondent Coffman’s case is arguably new evidence 

in that it was not issued until October 6, 2015, the respondent has not shown that 

it establishes that the settlement agreement was invalid. Rather, she has 

essentially expressed buyer’s remorse or after-the-fact dissatisfaction with the 

terms of the settlement agreement. It is well settled that claimed dissatisfaction 

with the terms of a settlement agreement does not constitute good cause for a 

filing delay. Cooper v. U.S. Postal Service, 104 M.S.P.R. 674, ¶ 7 (2007). In this 

case, although the respondent is now unhappy with the agreement, suggesting 

perhaps that she might have fared better had she litigated her case, she has not 

shown how the circumstances surrounding the settlement agreement interfered 

with her ability to file a timely petition for review. Id. 

¶9 Accordingly, we dismiss the petition for review as untimely filed without 

good cause shown. 

ORDER

¶10 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 as settled of the Office of Special 

Counsel’s complaint against the respondent. 

NOTICE TO THE RESPONDENT 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. 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, 
6

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 U.S. 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 U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. 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 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.

______________________________

William D. Spencer

Clerk of the Board