The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL LEWIS BULLOCK, DOCKET NUMBER
Appellant, SF-1221-23-0255-W-1
v.
DEPARTMENT OF VETERANS DATE: February 19, 2025
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael Lewis Bullock , Ontario, California, pro se.
Christian C. Pappas , Esquire, San Diego, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Henry J. Kerner, Vice Chairman*
Raymond A. Limon, Member
*Vice Chairman Kerner recused himself and
did not participate in the adjudication of this appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal 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
On March 15, 2023, the appellant filed the instant IRA appeal, asserting
that he was terminated from two positions while in a probationary period in
reprisal for making two protected disclosures. Initial Appeal File (IAF), Tab 16
at 10-13. Throughout the course of adjudication, the appellant stopped
responding to orders and participating in the adjudicatory process. IAF, Tab 26.
Following a show cause order, the administrative judge issued an initial decision
on June 8, 2023, finding that the appellant failed to exercise basic due diligence
in prosecuting his appeal. IAF, Tab 27, Initial Decision (ID) at 3-4.
Accordingly, he dismissed the appeal for failure to prosecute. ID at 4. He also
explained that the initial decision would become final on July 13, 2023, unless a
petition for review was filed by that date. Id.
On October 19, 2023, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1. Therein, he again asserts that he
was terminated twice for “being a [w]histleblower.” Id. at 3. He also explains
that he suffered from back pain for 18 months, takes opiates for pain
management, had back surgery on September 19, 2023, and “missed a lot of dates
to follow up” because he was “seeking pain management.” Id. He also states that
he suffers from dementia, and that because of his physical and mental
impairments, he could “not respond to the dates related to this appeal.” Id. He
also states that he is homeless. Id. In a letter acknowledging the appellant’s
submission, the Clerk of the Board notified the appellant that his petition for
review was untimely filed. PFR File, Tab 2 at 2. The letter explained to the
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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. It also informed the appellant of what he must show in order
to establish that his delay in filing was the result of illness. Id. at 4 n.1. The
agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review is untimely filed without good cause shown.
The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on
June 8, 2023. ID at 1. Thus, as the administrative judge correctly informed the
appellant, he was required to file any petition for review no later than July 13,
2023. ID at 4. The appellant’s petition for review of the initial decision was
filed on October 19, 2023. PFR File, Tab 1, Tab 2 at 1. As such, we find that his
petition for review is untimely filed by 98 days.
The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.113(d), 1201.114(g). The party who submits an untimely
petition for review has the burden of establishing good cause by showing that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; 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
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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. Palermo, 120 M.S.P.R.
694, ¶ 4; 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).
Additionally, as explained above, the appellant asserts on review that his
physical and mental health prevented him from complying with the Board’s filing
deadlines. PFR File, Tab 1 at 3. To establish good cause for an untimely petition
for review based on physical or mental illness, an appellant must (1) identify the
time period during which he suffered from the illness; (2) submit corroborating
evidence showing that he suffered from the alleged illness during that time
period; and (3) explain how the illness prevented him from timely filing his
appeal or request for an extension of time. Stribling v. Department of Education,
107 M.S.P.R. 166, ¶ 8 (2007); Lacy v. Department of the Navy, 78 M.S.P.R. 434,
437 (1998).
We find that the appellant has not established good cause to waive the
filing deadline. Although the appellant is proceeding pro se, his 98 -day delay in
filing is not minimal. See Gulley v. Department of the Treasury, 101 M.S.P.R.
48, ¶ 9 (2006) (concluding that an almost 4 month delay is “hardly minimal”); see
also Gaines v. U.S. Postal Service, 96 M.S.P.R. 504, ¶ 7 (2004) (concluding that
a 37-day delay is not minimal). Further, as noted above, in the Clerk of the
Board’s acknowledgment order informing the appellant that his petition for
review was untimely filed, it provided him with what he must show in order to
establish good cause for an untimely petition for review if he alleges that his
health affected his ability to meet the filing deadline, consistent with Board
precedent in Lacy. PFR File, Tab 1 at 4 n.1. The appellant filed no subsequent
motion to waive or set aside the time limit providing such information.
5
Although his petition for review identifies his alleged physical and mental
health issues, he has not identified the time period during which he was
physically or mentally incapacitated and unable to meet the filing deadlines.
Regarding his physical health, we acknowledge that, with his petition for review,
he submits evidence from a September 19, 2023 medical procedure. PFR File,
Tab 3 at 5-6. However, this evidence includes only a description of the procedure
itself and does not state that the appellant was physically incapacitated leading up
to or following his procedure such that he was prevented from timely filing a
petition for review or requesting an extension. Moreover, the appellant’s petition
for review was due on July 13, 2023, and his medical procedure did not occur
until September 19, 2023. ID at 4; PFR File, Tab 1 at 3. He has not explained
how any physical limitations inhibited his ability to file his petition for review
2 months before that procedure. Similarly, although the appellant also claims to
suffer from dementia, and we acknowledge that dementia is a condition generally
regarded as one affecting a person’s memory, he has submitted no evidence to
support this assertion, nor has he asserted any facts detailing this alleged
condition, such as the severity of his condition, how specifically it manifests, or
whether it is in early or advanced stages. Ultimately, the appellant has not
provided an explanation of how this alleged condition prevented him from filing a
timely petition for review.
Where, as here, an appellant fails to provide the information called for in
Lacy, particularly an explanation of how any physical or mental illness caused the
delay in filing, the Board has consistently declined to find good cause for an
untimely filing. See Cameron v. Department of the Navy, 112 M.S.P.R. 350, ¶ 13
(2009) (finding no good cause shown when a petition for review does not offer
any evidence or explanation as to why an appellant’s health issues resulted in
delay in filing); Davis v. U.S. Postal Service, 101 M.S.P.R. 107, ¶ 6 (2006)
(finding that an appellant failed to establish good cause for an untimely petition
for review when he failed to explain how his mental condition caused his delay in
6
filing or to submit any documentation in support of his claim), aff’d, 192 Fed.
App’x 966 (Fed. Cir. 2006). Although we are sympathetic to the appellant’s
medical conditions, we find that he has not established good cause to waive the
filing deadline based on illness.
As noted, the appellant also asserts in his petition for review that he was
homeless. PFR File, Tab 1 at 3. However, he has not explained how that
situation prevented him from filing a timely petition for review. For instance, he
has not alleged that he was unaware of the filing deadline or that he was unable to
access a computer or facsimile machine, nor has he alleged that he was unable to
travel to a U.S. Postal Service location or any commercial delivery service to
submit a petition for review. Indeed, his untimely petition for review appears to
have been filed from a commercial business. Id. at 1. As such, we find that the
appellant failed to establish that he experienced circumstances beyond his control
that affected his ability to comply with the time limits. See Palermo,
120 M.S.P.R. 694, ¶ 4; Moorman, 68 M.S.P.R. at 62-63.
In sum, although the appellant is acting pro se and we are sympathetic to
his alleged medical and living conditions, we find that he failed to establish that
he exercised due diligence or ordinary prudence under the circumstances of his
case. Accordingly, we dismiss the appellant’s petition for review as untimely
filed without good cause shown. 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 his IRA appeal.
NOTICE OF APPEAL RIGHTS 2
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).
2
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
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:
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.
8
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
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
9
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
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. 3 The court of appeals must receive your petition for
3
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
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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.
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.
11
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.