UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 39

Docket No. SF-0752-12-0788-I-1

Darla Gaetos,

Appellant,

v.

Department of Veterans Affairs,

Agency.

June 2, 2014

Michael J. Sanchez, Daly City, California, for the appellant.

Mark Win, Esquire, San Francisco, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

affirmed the agency’s removal action. 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).

BACKGROUND

¶2 The appellant filed a petition for appeal of the agency’s decision to remove 

her effective August 17, 2012, from the position of Medical Support Assistant. 

Initial Appeal File (IAF), Tab 1, Tab 4, Subtab 4a. On June 7, 2013, the 
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administrative judge issued an initial decision affirming the agency’s removal 

action. IAF, Tab 47, Initial Decision (ID). The initial decision had a finality date 

of July 12, 2013. ID at 60.

¶3 The appellant electronically filed a petition for review on July 13, 2013. 

Petition for Review (PFR) File, Tab 1. The Clerk of the Board issued a show 

cause order notifying the appellant that her petition for review appeared to be 

untimely filed and providing her with her burden of proof on timeliness. PFR 

File, Tab 4. The Clerk of the Board advised the appellant that, if she wished to 

file a submission in response to the order, it needed to be postmarked if mailed or 

sent by facsimile within 10 calendar days of the date of the order. PFR File, Tab 

4 at 3. The appellant has not responded to the show cause order.

ANALYSIS

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

of the initial decision’s issuance or, if the decision was received more than 5 days 

after the date of issuance, within 30 days after receipt. 5 C.F.R. § 1201.114 (d). 

Here, the appellant has not alleged that the initial decision was received more 

than 5 days after the date of issuance. Accordingly, the appellant had until July 

12, 2013, the 35th day following the issuance of the June 7, 2013 initial decision, 

to file a petition for review. The appellant’s July 13, 2013 petition for review 

was time-stamped 06:38:51 Eastern Standard Time. PFR File, Tab 1. Because 

the appellant’s petition for review was submitted from California, it was untimely 

filed by approximately 31⁄2 hours. See 5 C.F.R. § 1201.14(m)(1) (all pleadings 

filed via the Board’s e-Appeal Online system are stamped with Eastern Standard 

Time, but the timeliness of a pleading is assessed based on the time zone from 

which the pleading is being filed). 

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

for the delay in filing. 5 C.F.R. §§ 1201.12, 1201.114(f). To establish good 

cause for an untimely filing, a party must show that she exercised due diligence 
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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). 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 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 sub nom. 

Moorman v. Merit Systems Protection Board, 79 F.3d 1167 (Fed. Cir. 1996) 

(Table). 

¶6 We find that the appellant has failed to show good cause for a waiver of the 

filing deadline. Despite the Clerk of the Board’s show cause order providing the 

appellant with her burden of proof on timeliness and an opportunity to explain 

her filing delay, neither the appellant nor her representative has submitted a 

response to the order. PFR File, Tab 4. The appellant has not otherwise 

submitted any evidence or argument regarding the timeliness of the petition for 

review except to request in her petition for review that the “few hours of 

untimeliness be waived by the Board.” PFR File, Tab 1 at 3. Although the delay 

in filing in this case was only 31⁄2 hours, the Board has consistently denied a 

waiver of its filing deadline in cases where the delay is minimal and a good 

reason for the delay is not shown. See Noble v. U.S. Postal Service, 73 M.S.P.R. 

59, 62-63 (1997) (minimal 2-day delay in filing petition for review and the fact 

that the appellant was not represented by an attorney were outweighed by 

appellant’s failure to exercise due diligence and ordinary prudence under the 

circumstances); Dade v. Office of Personnel Management, 45 M.S.P.R. 12, 14-15

(1-day delay was not waived where appellant provided no credible basis for 

finding that petition for review was actually deposited in the mail 2 days earlier 

than postmark indicated), aff'd, 923 F.2d 870 (Fed. Cir. 1990) (Table); Dotson v. 
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U.S. Postal Service, 41 M.S.P.R. 412, 414 (1989) (1-day filing delay not waived 

where contention that the appeal was timely filed on October 11, 1988, was 

insufficient to overcome stamped postmark showing date of October 12, 1988), 

aff'd, 895 F.2d 1420 (Fed. Cir. 1990) (Table). Moreover, this is especially true 

here because the appellant in this case was not acting pro se, and she is 

responsible for the errors of her chosen representative. Sofio v. Internal Revenue 

Service, 7 M.S.P.R. 667, 670 (1981). Under the circumstances in this case, we 

therefore find that the minimal filing delay does not outweigh the appellant’s 

failure to show that she acted with due diligence in filing her petition for review. 

ORDER

¶7 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 removal appeal. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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:
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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 

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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a .

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.