The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REGINALD L. WILKERSON, DOCKET NUMBER
Appellant, CH-844E-20-0199-I-1
v.
OFFICE OF PERSONNEL DATE: July 30, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Reginald L. Wilkerson , Fishers, Indiana, pro se.
Shaquita Stockes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM)
dismissing his application for a disability retirement annuity under the Federal
Employees’ Retirement System (FERS) as untimely filed. For the reasons set
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
The appellant filed an appeal of OPM’s reconsideration decision dismissing
his FERS disability retirement appeal as untimely filed, and the administrative
judge held a hearing. Initial Appeal File (IAF), Tabs 1, 13. The administrative
judge issued a May 19, 2020 initial decision affirming OPM’s decision. IAF,
Tab 14, Initial Decision (ID). The initial decision specifically stated that the
deadline to file a petition for review was June 23, 2020, and provided information
on how to file a petition for review. ID at 7-8. The appellant filed a petition for
review, with a postmark dated December 23, 2020, which is the filing date
acknowledged by the Board. Petition for Review (PFR) File, Tab 1 at 1; see PFR
File, Tab 2 at 1.
The Acting Clerk of the Board notified the appellant that, because he filed
his petition for review after June 23, 2020, i.e., over 35 days following the
issuance of the May 19, 2020 initial decision, it was untimely filed. PFR File,
Tab 2 at 2. The letter explained to the appellant that the Board’s regulations
require a petition for review that appears untimely to be accompanied by a motion
to accept the filing as timely and/or to waive the time limit for good cause, and
set a deadline for the appellant to file such a motion. Id. The appellant did not
file the required motion concerning the timeliness of his petition for review. The
agency did not file a response to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, 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 he received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date he received the initial decision. 5 C.F.R. § 1201.114(e). The Board may
waive the time limit for filing a petition for review upon a showing of good cause
3
for the untimely 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. Palermo v. Department of the Navy,
120 M.S.P.R. 694, ¶ 4 (2014). 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 limit or of unavoidable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his petition. Id.
Here, the administrative judge informed the appellant that the initial
decision would become final on June 23, 2020, unless a petition for review was
filed by that date. ID at 7. The appellant filed his petition for review on
December 23, 2020, six months late, and failed to respond to the Clerk’s order
instructing him to explain his untimeliness. See PFR File, Tab 1 at 1-2. An
appellant who files a petition for review late but does not file the required motion
concerning the timeliness of his petition for review has failed to show the due
diligence and ordinary prudence necessary for the Board to find good cause for
his delay in filing. Galleno v. Office of Personnel Management, 63 M.S.P.R. 440,
442 (1994) (finding that an appellant who filed her petition for review 4 months
late, and failed to file the required motion on timeliness, failed to show good
cause for waiver of the filing deadline), aff’d, 48 F.3d 1236 (Fed. Cir. 1995)
(Table); see Goldberg v. Department of Defense, 39 M.S.P.R. 515, 518 (1989)
(stating that in the absence of good cause shown, the Board will not waive its
timeliness requirements even if the delay is minimal); Mejia v. Office of
Personnel Management, 38 M.S.P.R. 472, 473 (1988) (finding that, where the
appellant failed to respond to the Clerk’s notice concerning the timeliness of his
petition for review and his untimely filing did not include a motion for waiver of
the time limit or an affidavit or statement to establish good cause, the appellant
4
has not demonstrated good cause for the untimely filing). Because the appellant
failed to file the required motion, as was explained in the Acting Clerk’s
January 13, 2021 letter acknowledging his petition for review, we find that he has
failed to establish good cause for the waiver of the time limit. PFR File, Tab 2
at 1-2; Galleno, 63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia,
38 M.S.P.R. at 473; 5 C.F.R. § 1201.114(e).
Although the appellant failed to respond to the Clerk of the Board’s notice
instructing him to demonstrate that his petition for review was timely filed or that
good cause existed for the late filing, see PFR File, Tab 2, in his petition for
review filing, he appears to suggest that he did not receive the initial decision
until December 11, 2020, PFR File, Tab 1 at 2. The appellant states that he
contacted the OPM representative regarding the status of his appeal in May 2020
and was informed that a decision had been issued, but that the OPM
representative refused to provide him a copy of the decision at that time. Id. He
states that he reached out to OPM several additional times over the following
months and was told that he would be sent something in the mail by one official
and that his case was still being considered by a different official, and indicates
that OPM finally sent him a copy of the decision on December 11, 2020. Id. The
appellant also provides a photograph of an envelope reflecting a return address
from OPM and an illegible postmark stamp, which he appears to indicate
contained the copy of the initial decision he received on December 11, 2020. Id.
at 4.
Even if we were to consider the appellant’s argument as a claim that good
cause exists for his untimeliness because he did not receive the initial decision
from the Board and instead first received it in the first instance on December 11,
2020, from an OPM official, we conclude that this explanation is not reasonable
as it is contradicted by the Board’s records indicating that the initial decision was
electronically served on the appellant. The certificate of service for the initial
decision indicates that on May 19, 2020, the regional office served the initial
5
decision on the appellant electronically, since he had registered as an e-filer.
IAF, Tab 15; see IAF, Tab 10 at 2; 5 C.F.R. § 1201.14(m)(2) (2020) (explaining
that Board documents served electronically on registered e-filers are deemed
received on the date of electronic submission). Registration as an e-filer
constitutes consent to accept electronic service of pleadings filed by other
registered e-filers and documents issued by the Board. 5 C.F.R. § 1201.14(e)
(2020). Additionally, as an e-filer, the appellant was responsible for ensuring
that filters did not block the Board’s emails and for monitoring case activity in
the Repository to ensure that he had received all case-related documents.
5 C.F.R. § 1201.14(j)(2)-(3) (2020). There is also no indication that the appellant
attempted to change his method of service to regular mail or to withdraw as an
e-filer at any point. See 5 C.F.R. § 1201.14(e)(4), (6) (2020) (permitting
withdrawal of registration as an e-filer and outlining the process for changing the
email address of record). Consequently, the record does not support the
appellant’s suggestion that he did not receive the initial decision from the Board,
and instead received it for the first time from an OPM official on
December 11, 2020. 2
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 appeal challenging OPM’s decision dismissing his
application for a FERS disability retirement appeal as untimely filed .
2
Additionally, even if we were to assume that the appellant first received a hard copy
of the initial decision from an OPM representative on December 11, 2020, we would
still conclude that he did not act diligently in filing his petition for review because he
acknowledges that he was told by the OPM official sometime in May 2020 that the
initial decision had already been issued, but nevertheless did not attempt to file a
petition for review or request an extension of time to do so until December 23, 2020.
See PFR File, Tab 1 at 2.
6
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. 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
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC 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 a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.