UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOSEPH P. MARTINEZ,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DE-0752-14-0210-I-2

DATE: January 12, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Steven W. Zachary, Esquire, Mesa, Arizona, for the appellant.

Adam A. Odell, Callie LeRoy, Esquire, and Dean L. Lynch, Esquire,

Tucson, Arizona, 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 his appeal as untimely refiled without good cause shown for the delay. 

Generally, we grant petitions such as this one only when: the initial decision 

contains erroneous findings of material fact; the initial decision is based on an 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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. See 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 

and AFFIRM the initial decision, which is now the Board’s final 

decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant filed a Board appeal challenging his removal. Martinez v. 

Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-1, 

Initial Appeal File (I-1 IAF), Tab 1. During the proceedings below, the agency 

asserted that the appellant produced several sensitive law enforcement documents 

in the course of discovery and that the appellant’s unauthorized possession and 

production of these documents presented an apparent violation of law. I-1 IAF, 

Tab 15 at 4. The agency referred the matter for investigation and requested that 

the appeal be stayed pending its outcome. Id. The parties stipulated to a 

dismissal without prejudice. I-1 IAF, Tab 17, Initial Decision (I-1 ID) at 2. The 

administrative judge thus dismissed the appeal without prejudice on May 7, 2014, 

stating that the appeal must be refiled no later than either 30 days after the agency 

notified the appellant that it concluded its investigation or September 7, 2014,

whichever was earlier. Id. The administrative judge also warned the appellant 

that, if he did not refile his appeal within the aforementioned deadline, it might be 

dismissed as untimely filed. Id.
3

¶3 The agency concluded its investigation in December 2014, but it did not 

inform the appellant that the investigation was closed. See Martinez v. 

Department of Homeland Security, MSPB Docket No. DE-0752-14-0210-I-2,

Initial Appeal File (I-2 IAF), Tab 6 at 14. The appellant did not refile his appeal 

until May 2015. I-2 IAF, Tab 1. He asserted that good cause existed for his 

filing delay because, inter alia, the agency threatened criminal charges against 

him to get him to stop exercising his appeal rights, refiling would incite the 

agency to charge him with a crime, and the agency misled the administrative

judge into thinking it was conducting an investigation to stop him from exercising 

his rights. Id. at 4-7.

¶4 The administrative judge informed the appellant that his refiled appeal 

appeared to be untimely and ordered him to show that it was more likely than not 

that his appeal was refiled on time or that good cause existed for the delay. I-2

IAF, Tab 4. In response, the appellant asserted that good cause existed for his 

filing delay. I-2 IAF, Tab 5. Specifically, he asserted that: (1) he timely filed 

his initial appeal; (2) he consistently demonstrated his intent to appeal the 

agency’s decision; (3) the length of his filing delay was minimal, given that he 

was waiting for the resolution of the agency’s threat of criminal charges; (4) the 

refiling deadline appeared to be based on the understanding that the agency had a 

certain time period to investigate or bring criminal charges against him and thus 

was confusing or arbitrary; (5) there had been only one dismissal without 

prejudice; and (6) the good cause standard should be liberally construed. Id.

at 10-15. The agency responded that the appellant did not meet his burden of 

proving good cause for the delay because: (1) he intentionally missed the refiling 

deadline; (2) the delay was not minimal; (3) he was represented by counsel; (4) 

his assertions concerning agency threats were unsupported, untrue, and 

implausible; and (5) he did not explain why he did not request an extension or 
4

otherwise contact the administrative judge prior to the refiling deadline. 2 I-2

IAF, Tab 6 at 6-12. The agency also asserted that it would be prejudiced by 

allowing the appellant to refile his appeal. Id. at 12. 

¶5 The administrative judge dismissed the appeal as untimely refiled with no 

good cause shown for the delay. I-2 IAF, Tab 7, Initial Decision (I-2 ID). The 

appellant has filed a timely petition for review, Petition for Review (PFR) File, 

Tab 1, the agency has filed a response in opposition to the petition for review, 

PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4.

3

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 The administrative judge correctly found, and it is undisputed, that the 

appellant’s appeal is untimely refiled. The administrative judge dismissed the 

appeal without prejudice and stated that it must be refiled no later than 30 days 

after the agency notified the appellant that it concluded its investigation or 

September 7, 2014, whichever was earlier. I-1 ID at 2. Because the agency did 

not notify the appellant that it had concluded its investigation, I-2 IAF, Tab 6 at 

14, the deadline for refiling the appeal was September 7, 2014. The appellant did 

not refile his appeal until May 18, 2015. I-2 IAF, Tab 1. Thus, he refiled his 

appeal over 8 months past the deadline set forth in the initial decision dismissing 

his appeal without prejudice.

 2 The agency also submitted an unsworn declaration of a Special Agent in Charge

stating that the agency’s Office of Inspector General declined to investigate the 

appellant’s alleged unauthorized disclosure, the U.S. Attorney declined criminal 

prosecution, and the agency’s Office of Internal Affairs closed the investigation in 

December 2014. I-2 IAF, Tab 6 at 14. The declarant indicated that the appellant was 

not notified when the investigation was closed because it is not agency policy to notify 

former employees that an investigation is closed. Id.

3 The appellant has attached new evidence to his petition for review in the form of his

August 2015 affidavit detailing the timeline of, and his reasoning for, waiting to refile 

his appeal. PFR File, Tab 1 at 17-18. We do not consider this evidence because it is 

not based on information not readily available before the record closed below, despite 

the appellant’s due diligence. 5 C.F.R. §§ 1201.114(b), 1201.115(d); see Ellis v. 

Department of the Navy, 117 M.S.P.R. 511, ¶ 12 (2012). 
5

¶7 Because the appeal was untimely refiled, the appellant must establish good 

cause for waiving the refiling deadline. See Medina v. Department of the Air 

Force, 66 M.S.P.R. 194, 197 (1995). The appellant bears the burden of proof, by 

a preponderance of the evidence, regarding issues of timeliness. 4 5 C.F.R. 

§ 1201.56(b)(2)(i)(B). The Board has identified the following factors as 

supporting a finding of good cause for waiving the refiling deadline: (1) the 

appellant’s pro se status, timely filing of the initial appeal, intent throughout the 

proceedings to file an appeal, minimal delay in refiling, and any 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).

¶8 In his initial decision on the refiled appeal, the administrative judge found 

that the appellant did not show good cause for the refiling delay because: (1) he 

was represented by counsel; (2) the length of the delay was significant; (3) the 

appellant did not assert confusion concerning the filing deadline; (4) the deadline 

was not arbitrary; (5) the fact that there was only one dismissal without prejudice 

was unimportant, particularly given the extreme delay by the appellant in refiling 

his appeal; and (6) the appellant failed to explain why he could not refile his

appeal within the relevant time period. I-2 ID at 5. We agree. See 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 4-month delay in refiling his appeal where the initial decision 

clearly identified the date for refiling and warned him of the consequences of 

failure to refile by that date, and he failed to provide any evidence justifying any 

confusion over the deadline).

 4 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).
6

¶9 Further, we find that the appellant’s arguments on review do not provide a 

basis for disturbing the initial decision. PFR File, Tab 1. The appellant appears 

to assert that the administrative judge erred in finding no good cause shown for 

his untimely refiling because he should have found that the refiling would “incite 

the agency” to take action against him. Id. at 10-11. We find no error in this 

respect, however, because we agree with the administrative judge that the 

appellant has not submitted specific evidence or argument regarding how refiling 

his appeal or contacting the regional office prior to the expiration of the refiling 

deadline to communicate his intent to refile his appeal would have affected the 

agency’s investigation or caused the agency to take any action against him. 

I-2 ID at 5. The appellant also asserts that the agency’s decision whether or not 

to pursue criminal charges was a circumstance beyond his control. PFR File, Tab 

1 at 11-12. However, he does not explain how the agency’s pursuit of the 

investigation, even if outside of his control, affected his ability to refile his 

appeal or otherwise communicate to the regional office his intent to refile. We 

therefore find that this argument does not demonstrate good cause for the 

appellant’s untimely refiling. See Chavez v. Office of Personnel 

Management, 46 M.S.P.R. 390, 393 (1990) (finding no good cause for the delay 

in filing the appeal where, although the appellant presented circumstances outside 

of his control, he did not explain how the circumstances affected his ability to 

timely file his appeal). Finally, the appellant asserts that we should grant his 

petition for review in the interest of public policy because no agency should be 

permitted to mislead an appellant into believing that he may face criminal charges 

if he chooses to refile an appeal. PFR File, Tab 1 at 12-13. We find that the 

appellant has not presented evidence or argument regarding how the agency 

misled him into believing that he may face criminal charges if he chose to refile 
7

his appeal. Thus, we find that this argument does not provide a basis for 

disturbing the initial decision. 5

 

¶10 Finally, we have considered the appellant’s remaining arguments, including 

his reassertion of many of the arguments from below. PFR File, Tabs 1, 4. 

However, these arguments do not provide a basis for disturbing the initial 

decision. See Broughton v. Department of Health & Human 

Services, 33 M.S.P.R. 357, 359 (1987). Accordingly, we find that the appellant 

has not shown good cause for his untimely refiling. See Medina, 66 M.S.P.R. at 

197-98.

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. You must submit your request to the 

court at the following address: 

U.S. 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, 

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 

 5 There is no evidence that the agency threatened to file criminal charges because the 

appellant filed an appeal or intended to refile his appeal. Further, the agency states that 

the U.S. Attorney has the sole power of criminal prosecution. PFR File, Tab 3 at 10 

(citing 28 U.S.C. § 547).
8

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