UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CARLA JEAN NELSON,

Appellant,

v.

NATIONAL COUNCIL ON 

DISABILITY,

Agency.

DOCKET NUMBER

DC-0752-13-6569-I-1

DATE: August 15, 2014

THIS ORDER IS NONPRECEDENTIAL1

Carla Jean Nelson, Oxon Hill, Maryland, pro se.

Brenda F. Ward, Esquire, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed her appeal as untimely filed without good cause. For the reasons 

discussed below, we GRANT the appellant’s petition for review and REMAND 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 case to the regional office for further adjudication in accordance with this 

Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency employed the appellant as an Administrative Specialist. Initial 

Appeal File (IAF), Tab 8 at 34. On May 7, 2013, the agency proposed her 

removal based on the charge of “conviction of embezzlement.” Id. at 14-17. The 

appellant orally responded to the charge. See id. at 11. Nevertheless, the agency 

removed the appellant, effective July 1, 2013. Id. at 10-13.

¶3 The appellant filed an appeal of her removal with the Board on 

September 15, 2013. IAF, Tab 1. She alleged that the agency violated her rights 

by committing harmful procedural error and engaging in a prohibited personnel 

practice due to whistleblowing activity. Id. at 4. The appellant indicated that she 

had filed a complaint with the Office of Special Counsel (OSC), also on 

September 15, 2013, the day of her Board appeal. Id. at 5; see also IAF, Tab 2 

at 10-17 (completed OSC questionnaire).

¶4 The agency responded to the appeal with a motion to dismiss the case as 

untimely filed. IAF, Tab 8 at 4-7. The administrative judge issued a timeliness 

order. IAF, Tab 11. According to this order, the appeal appeared untimely 

because it had not been filed within 30 days of the appellant’s removal. Id. at 2. 

The judge directed the appellant to submit argument or evidence that her appeal 

was timely, or that good cause existed for its untimeliness. Id. at 3-4.

¶5 The appellant responded to the timeliness order, again alleging that she had 

engaged in whistleblowing activity. IAF, Tab 12 at 1-3. She also argued that 

good cause existed for her filing more than 30 days after her removal. Id. at 2-3. 

According to the appellant, she had been misled by a confidant at the agency 

regarding her chances before the Board, and she had suffered from depression 

after her removal. Id. 
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¶6 The administrative judge dismissed the appeal, finding that it was untimely 

and that the appellant had failed to establish good cause for this untimeliness. 

IAF, Tab 14, Initial Decision (ID). The appellant has filed a petition for review, 

Petition for Review (PFR) File, Tab 1, and the agency has filed a response, PFR 

File, Tab 4.

To the extent that the appellant sought to bring her case as an adverse action 

appeal, she failed to present good cause for her untimely filing, and the 

administrative judge’s dismissal was proper.

¶7 An appeal must generally be filed no later than 30 days after the effective 

date of the action being appealed, or 30 days after the appellant’s receipt of the 

agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). An appellant 

bears the burden of proof regarding the timeliness of her appeal. 5 C.F.R. 

§ 1201.56(a)(2)(ii). If the appeal is untimely, it will be dismissed unless the 

appellant shows good cause for the delay. 5 C.F.R. § 1201.22(c). 

¶8 To establish good cause for the untimely filing of an appeal, a party must 

show that she 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). In determining whether an appellant has shown good cause, the 

Board will consider whether she is proceeding pro se, the length of the delay, the 

reasonableness of her excuse and her showing of due diligence, 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, 79 F.3d 1167 (Fed. Cir. 1996) (Table). 

¶9 In her petition, the appellant alleges that she did establish good cause for 

her untimeliness, and that the administrative judge erred in finding otherwise. 

PFR File, Tab 1 at 1-3. She asserts that the administrative judge failed to 

adequately consider all the applicable reasons for her untimely filing, including 
4

her lack of legal representation, her depression, her inability to obtain medical 

treatment for that depression due to financial constraints, and her allegation that 

an agency attorney misled her with fraudulent statements relating to her appeal. 

Id. at 2-3. The appellant also presented new evidence, 2 consisting of three sworn 

declarations. Id. at 17-20. However, under 5 C.F.R. § 1201.115, the Board will 

not consider evidence submitted for the first time with the petition for review 

absent a showing that it was unavailable before the record was closed despite the 

party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 

(1980). Because the appellant has made no such showing, we decline to consider 

her newly submitted evidence.

¶10 The appellant is proceeding pro se. Nonetheless, the appellant has not 

disputed that she filed her removal appeal approximately 46 days late. Compare

IAF, Tab 2 at 3 (removal notice effective July 1, 2013), with IAF, Tab 1 at 2 

(Board appeal dated September 15, 2013). The administrative judge found this 

delay significant and we agree. See ID at 5; see also Winfrey v. National 

Archives and Records Administration, 88 M.S.P.R. 403, ¶ 6 (2001) (a 48-day 

delay in filing an appeal was not minimal and did not provide a basis for waiving 

the filing deadline).

¶11 We also agree that the appellant failed to show that she exercised due 

diligence or ordinary prudence under the particular circumstances of her case. 

 2 The appellant also submitted telephone records and an email with her petition. PFR 

File, Tab 1 at 7-13. This evidence is not new, as she previously submitted it with her 

response to the timeliness order. IAF, Tab 12 at 6-12. The appellant argues that the 

phone records contradict a sworn statement provided by the agency. PFR File, Tab 1 

at 3. However, the administrative judge found that, even if the appellant’s allegations 

about the alleged phone calls were true, it did not excuse the appellant’s untimeliness. 

ID at 5. We agree. The appellant also argues that the email, addressed to her and from 

the deciding official, was inappropriate contact during the Board’s proceedings. PFR 

File, Tab 1 at 2. Yet, she failed to provide any argument as to how this email, in which 

the deciding official offered to meet with the appellant if she wished, had any bearing 

on her untimeliness or otherwise prejudiced her appeal. Accordingly, we find the 

evidence the appellant resubmitted with her petition for review inconsequential.
5

The appellant alleged that her untimeliness can be attributed to her reliance on 

misleading information from a confidant who was also an attorney for the agency. 

IAF, Tab 12 at 2-3. According to the appellant, this confidant advised her that a 

Board appeal would be costly and complicated, with little chance for a positive 

result. Id. at 2. Nevertheless, the administrative judge determined that, even if 

true, this information would not have persuaded a reasonable person not to file a 

Board appeal. ID at 5. Although the appellant expressed disagreement in her 

petition for review, PFR, Tab 1 at 4, she provided no basis to reverse the 

administrative judge’s conclusion. 

¶12 The appellant also alleged that her untimeliness can be attributed to 

depression. IAF, Tab 12 at 2-3. To establish that an untimely filing was the 

result of an illness, an appellant must: (1) identify the time period during which 

she suffered from the illness; (2) submit medical evidence showing that she 

suffered from the alleged illness during that time period; and (3) explain how the 

illness prevented her from timely filing her appeal or a request for an extension of 

time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). Although 

medical evidence is preferable, otherwise supportive and corroborating evidence 

may suffice if medical evidence is unavailable. Id. at n.*. The administrative 

judge’s timeliness order included these requirements, directing the appellant to 

respond accordingly. IAF, Tab 11 at 4. However, the appellant’s response 

contained only bare unsworn assertions that she suffered from depression after 

her removal, IAF, Tab 12 at 2-3, along with similarly bare and unsworn assertions 

of depression-like symptoms in declarations from an acquaintance and a niece, id. 

at 13-14. 

¶13 Even if she had established that she suffered from depression, the appellant 

failed to meet her burden of proving that her untimely filing was the result of 

illness because she did not identify the relevant period during which she suffered 

from depression and she provided no substantive explanation of how depression

prevented her from timely filing her appeal or a request for an extension. See 
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Jimenez v. Social Security Administration, 100 M.S.P.R. 287, ¶ 6 (2005) (finding 

no good cause for untimely filing where appellant failed to identify the time

period of her alleged illnesses or how those illnesses prevented her from timely 

filing). On review, the appellant reiterates her claim that depression caused her

to have difficulty focusing and impaired her judgment. PFR File, Tab 1 at 2-3. 

However, we agree with the administrative judge’s conclusion that these

allegations failed to meet the appellant’s burden. See ID at 3-4.

¶14 Finally, the appellant’s petition argues that the administrative judge erred in 

failing to consider whether the agency was harmed by her untimeliness. PFR 

File, Tab 1 at 2. The Board, though, only determines whether the agency would 

be harmed if good cause has been demonstrated. Womack v. Merit Systems 

Protection Board, 798 F.2d 453, 456 (Fed. Cir. 1986). Where an appellant fails 

to establish good cause for her untimely filing, an argument that the agency 

would not be prejudiced is irrelevant. Id. 

¶15 Based on the above and to the extent that the appellant sought to bring her 

case as an adverse action appeal, we affirm the dismissal of her appeal as 

untimely and without good cause. 

The administrative judge erred in failing to determine if the appeal was a timely 

individual right of action (IRA) appeal, not subject to the timeliness requirements 

of 5 C.F.R. § 1201.22(b).

¶16 An employee who has been subjected to an action appealable to the Board 

and who alleges that she has been affected by a prohibited personnel practice 

other than a claim of discrimination under 5 U.S.C. § 2302(b)(1) may elect to 

pursue a remedy through one, and only one, of the following remedial processes:

(1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed pursuant 

to the provisions of the negotiated grievance procedure; or (3) a complaint 

following the procedures for seeking corrective action from the OSC 

under 5 U.S.C. §§ 1211–1222. Edwards v. Department of Air Force, 120 

M.S.P.R. 307, ¶ 12 (2013) (citing 5 U.S.C. § 7121(g)). Generally, whichever 
7

remedy is sought first by an aggrieved employee under section 7121(g) is deemed 

an election of that procedure and precludes pursuing the matter in either of the 

other two forums. Agoranos v. Department of Justice, 119 M.S.P.R. 498, ¶ 14 

(2013). An employee’s election, however, will not be binding if it is not knowing 

and informed. Id. Accordingly, when an agency takes an action without 

informing the appellant of her procedural options under section 7121(g) and of 

the preclusive effect of electing one of those options, any subsequent election by 

the appellant is not binding. Id., ¶ 17. 

¶17 Here, the appellant is not covered by a bargaining unit or negotiated 

grievance procedure. IAF, Tab 8 at 8. Thus, she was left with the options of 

proving that the Board has jurisdiction over her appeal as (1) a chapter 75 adverse 

action appeal, or (2) an IRA appeal. See Edwards, 120 M.S.P.R. 307, ¶ 13 

(discussing these two options for adjudicating a whistleblower claim arising out 

of an adverse action). The appellant’s appeal indicates that she filed a 

whistleblower complaint with OSC on the same day as her Board appeal, but at a 

later time of day. IAF, Tab 1 at 5, Tab 2 at 10-17. It thus appears that the 

appellant elected to file her Board appeal first. Nevertheless, we find that the 

election was not knowing and informed because the agency’s decision letter did 

not inform the appellant of the preclusive effect of first filing a Board appeal 

before filing an OSC complaint. IAF, Tab 2 at 4-5. Therefore, the administrative 

judge should determine on remand whether the Board has jurisdiction over the 

appellant’s whistleblower claims as an IRA appeal.

3

 

 3

The Board has jurisdiction over an IRA appeal if an appellant has exhausted her 

administrative remedies before OSC and makes nonfrivolous allegations that: (1) she 

engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. 

§ 2302(b)(8), (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure was a contributing 

factor in the agency’s decision to take or fail to take a personnel action as defined by 

5 U.S.C. § 2302(a). 5 U.S.C. § 1214(a)(3); Yunus v. Department of Veterans Affairs, 

242 F.3d 1367, 1371 (Fed. Cir. 2001). 
8

¶18 We further find that the appellant’s appeal was timely filed as an IRA 

appeal. Under 5 U.S.C. § 1214(a)(3), an appellant may file an IRA appeal with 

the Board once OSC closes its investigation into her complaint and no more than 

60 days have elapsed since notification of the closure was provided to her or 

120 days has elapsed since the appellant sought corrective action from OSC and 

she has not been notified by OSC that it shall seek corrective action on her 

behalf. Wells v. Department of Homeland Security, 102 M.S.P.R. 36, ¶ 6 (2006). 

The record shows that the appellant’s appeal was premature at the time of filing, 

if it is deemed an IRA appeal. See generally Jundt v. Department of Veterans 

Affairs, 113 M.S.P.R. 688, ¶ 6 (2010) (affirming the dismissal of an IRA appeal 

as premature where the appellant filed her complaint with OSC after her initial 

appeal with the Board, but before the administrative judge issued an initial 

decision to dismiss). Nevertheless, the Board’s practice is to adjudicate an appeal 

that was premature when it was filed but becomes ripe while pending with the 

Board. Id., ¶ 7. Because it appears that the appellant filed her whistleblower 

complaint with OSC on September 15, 2013, IAF, Tab 2 at 10-17, which is more 

than 120 days ago, her whistleblower retaliation claim is now ripe.

¶19 Based on the above, and to the extent that the appellant sought to bring her 

case as a whistleblower retaliation appeal, we grant the petition for review and 

remand to the regional office for further adjudication as an IRA appeal. On 

remand the administrative judge should determine whether the appellant has 

established the jurisdictional elements of her IRA appeal. If the appellant 

satisfies the jurisdictional requirements, then she a the right to a hearing on the 

merits of her whistleblower reprisal claim.
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ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board