UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JIM A. DRYSDALE, 1 DOCKET NUMBER
Appellant, SF-0752-13-4334-I-1
v.
DEPARTMENT OF THE ARMY, DATE: May 8, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Jim A. Drysdale, Sacramento, California, pro se.
Jason DeRosa, Esquire, Portland, Oregon, for the agency.
Annette B. Kuz, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
Engineers/South Pacific Division v. Department of the Army, MSPB Docket No.
SF-0752-14-0285-I-1.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal with prejudice for failure to prosecute. 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 On June 4, 2013, the agency issued a Notice of Proposed Furlough
informing the appellant, a Geologist, that he would be furloughed for no more
than 11 workdays due to “the extraordinary and serious budgetary challenges
facing the Department of Defense (DoD) for the remainder of Fiscal Year (FY)
2013, the most serious of which is the sequester that began on March 1, 2013.”
Initial Appeal File (IAF), Tab 1 at 10-11. It does not appear that the appellant
responded to the proposal notice. By written notice dated June 24, 2013, the
agency’s deciding official informed the appellant that he would be furloughed as
outlined in the proposal notice. Id. at 13-15. The record includes a Standard
Form 50 reflecting the appellant’s furlough, effective July 8, 2013, on
discontinuous days between July 8, 2013, and September 30, 2013, and not to
exceed a maximum of 88 hours during the furlough period. Id. at 7-9.
¶3 The appellant filed a Board appeal challenging the agency’s action but
indicated that he did not want a hearing. Id. at 1-6. In a furlough procedures
order, the administrative judge informed the appellant that his appeal had been
consolidated with the appeals of similarly situated employees. Corps of
Engineers/South Pacific Division v. Department of the Army, MSPB Docket
No. SF-0752-14-0285-I-1, Consolidated Appeal File, Tab 2. On July 21, 2014,
the administrative judge issued an initial decision dismissing the appellant’s
appeal with prejudice for failure to prosecute. IAF, Tab 6, Initial Decision (ID)
at 1, 3. In particular, the administrative judge found that the appellant failed to
exercise basic due diligence in prosecuting his appeal because he failed to appear
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for the scheduled status conference call, to submit a close of record submission or
a response to the agency’s close of record submission, or to respond to the show
cause order on the failure to prosecute issue. ID at 2. The administrative judge
also informed the parties that the initial decision would become final if neither
party filed a petition for review by August 25, 2014. ID at 3.
¶4 The appellant filed a petition for review on January 20, 2015. Petition for
Review (PFR) File, Tab 1. The agency has not filed a response.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not established good cause for untimely filing his petition for
review.
¶5 Generally, a petition for review must be filed within 35 days after the
issuance of the initial decision, or, if the petitioner shows that he received the
initial decision more than 5 days after the date of the issuance, within 30 days
after the date he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the
administrative judge issued the initial decision on July 21, 2014, and the
certificate of service reflects that the appellant received the initial decision
through email on July 21, 2014. ID at 1; IAF, Tab 5. In the initial decision, the
administrative judge informed the parties that the initial decision would become
the Board’s final decision if neither party filed a petition for review by
August 25, 2014. ID at 3; see 5 C.F.R. § 1201.113.
¶6 The appellant filed a petition for review on January 20, 2015, almost
5 months past the initial decision’s finality date. PFR File, Tab 1. In his petition
for review, he argues that the Board should find good cause for his untimely
filing because he “lost track of the message where [the] deadline was apparent”
and made an “honest oversight.” Id. at 3. In an acknowledgment letter, the
Office of the Clerk of the Board informed the appellant that his petition for
review was untimely filed and that he could file a motion with the Board to
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accept his filing as timely or to waive the time limit for good cause. PFR File,
Tab 2. The appellant did not respond to the letter.
¶7 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause, the appellant 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). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control that affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition for review. See
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 We find that the appellant has not demonstrated good cause for his untimely
petition for review. Although an appellant’s pro se status is a factor weighing in
his favor, it is insufficient to excuse his untimeliness. Allen v. Office of
Personnel Management, 97 M.S.P.R. 665, ¶ 8 (2004). His nearly 5-month delay
in filing his petition for review is significant. See, e.g., Dow v. Department of
Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding a more than 1-month
delay in filing a petition for review was significant). Although the appellant
mistakenly missed the filing deadline, his inexperience with legal matters and
unfamiliarity with Board procedures do not warrant waiving the filing deadline.
See Wallace v. Department of Veterans Affairs, 81 M.S.P.R. 88, ¶ 5, aff’d,
217 F.3d 856 (Fed. Cir. 1999) (Table). The appellant received clear notice of the
filing deadline in the initial decision. See ID at 3. Thus, we find that the
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appellant has failed to show that he exercised due diligence or ordinary prudence
in this case that would justify waiving the filing deadline.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States 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, 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 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 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 United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.