The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANTHONY J. MARLOW, DOCKET NUMBER
Appellant, AT-844E-24-0212-I-1
v.
OFFICE OF PERSONNEL DATE: May 26, 2026
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Anthony J. Marlow , Columbus, Georgia, pro se.
Eva Ukkola , Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of the reconsideration decision of the Office of Personnel
Management (OPM) as untimely filed without good cause. For the reasons
discussed below, we GRANT the appellant’s petition for review, REVERSE the
administrative judge’s conclusion that the appellant failed to show good cause for
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the untimeliness of his appeal, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
As relevant here, on December 20, 2023, the appellant filed an appeal
challenging OPM’s June 9, 2023 reconsideration decision denying his application
for disability retirement benefits and requesting a hearing. Initial Appeal File
(IAF), Tab 1 at 2-7, 9-15. The administrative judge dismissed the appeal as
untimely filed without good cause shown for the delay. IAF, Tab 4, Initial
Decision (ID) at 1, 4. The administrative judge concluded, based on the
appellant’s appeal form, that he received the agency’s decision letter on June 9,
2023, and, therefore, that his appeal was untimely by 157 days. ID at 7. He also
found no basis to excuse the delay because the appellant did not respond to his
timeliness order. ID at 8; IAF, Tab 3.
The appellant filed a timely petition for review alleging that the use of an
incorrect address prevented him from receiving the documents issued by the
Board. Petition For Review (PFR) File, Tab 1 at 2. The agency did not respond
to the petition for review. Since there was no evidence that the appellant received
proper notice of the timeliness issue or standard for waiving late filings—
particularly regarding his medical concerns—the Board issued a show cause order
providing such notice and giving him another opportunity to establish good cause
for his untimely filed appeal. IAF, Tab 11. In response, the appellant does not
challenge the administrative judge’s conclusion that his Board appeal was
untimely filed; however, he argues that good cause exists for his filing delay
based on his health concerns. PFR File, Tab 12 at 8. For the following reasons,
we reverse the administrative judge’s conclusion that the appellant failed to show
good cause for his untimeliness.
The Board may waive the time limit for filing an appeal if the appellant has
shown good cause for the delay. Smith v. Office of Personnel Management,
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117 M.S.P.R. 527, ¶ 6 (2012); 5 C.F.R. § 1201.22(c). To establish good cause for
the untimely filing of an appeal, a party 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
appeal. 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).
The Board will find good cause for a filing delay when an appellant has
demonstrated that he suffered from an illness that affected his ability to file on
time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). To
establish that an untimely filing was the result of an illness, the party must:
(1) identify the time period during which he suffered from the illness; (2) submit
medical 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 a request for an extension of time. Id. There is no general requirement
that the appellant be incapacitated, only that the appellant must show that his
ability to file with the Board was “affected” or “impaired” by illness.
Washington v. Department of the Navy, 101 M.S.P.R. 258, ¶ 13 (2006); Lacy,
78 M.S.P.R. at 437 & n.*.
Here, the pro se appellant asserts that his health issues from April to
December 2023 directly caused his delay in filing. PFR File, Tab 12 at 8.
Specifically, he contends that he lives alone and his chronic medical conditions
and flareups rendered him unable to do anything beyond taking care of his basic
needs during that timeframe. Id. He also provides an undated letter from his
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traumatic brain injury (TBI) provider and letters from his primary care doctor
dated December 7, 2022, and August 30, 2023, in support of his assertion. Id.
at 9-16. His TBI provider asserts that the appellant suffers from headaches,
dizziness and loss of balance, tinnitus, vision changes, sleep disorder, fatigue,
post-traumatic stress syndrome, and anxiety. Id. at 9. His doctor identified
various conditions, including irritable bowel syndrome (IBS), hypothyroidism,
chronic headache disorder with history of TBI, and chronic depression with
anxiety, and explained that his conditions are worsening and impacting his daily
life. Id. at 10-16. His doctor also explained that his IBS is an “ongoing, long
term problem” with recurrent, unpredictable flare-ups despite treatment, and he
expects that it will continue to prove challenging to manage and will remain
disruptive to the appellant’s life. Id. at 14-16. Although some of the appellant’s
supporting documents predate the relevant period, we nonetheless find that it
corroborates his assertion that his conditions impaired his ability to file his Board
appeal or request an extension for filing. Id. at 9-13.
Under the particular circumstances of this case, we find the pro se appellant
has provided sufficient cause, supported by corroborating medical evidence,
explaining how his illness prevented him from timely filing his appeal. See
Washington, 101 M.S.P.R. 258, ¶ 13; Lacy, 78 M.S.P.R. at 437-38. Moreover,
the agency has presented no evidence or argument suggesting that it would be
prejudiced by a waiver of the filing time limit. See Moorman, 68 M.S.P.R. at 63
(explaining that, once good cause has been demonstrated, the Board must
determine whether the agency has shown that it would be prejudiced by a waiver
of the time limit). Thus, we find that he has established good cause for the
untimely filing of his appeal.
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
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On remand, the administrative judge should further develop the record as to the
merits of the appeal and hold the appellant’s requested hearing.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.