UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT QUESADA,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DA-1221-14-0497-W-2

DATE: July 18, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert Quesada, El Paso, Texas, pro se.

Michelle Morton, El Paso, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his individual right of action (IRA) appeal as untimely refiled. 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). 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 On June 20, 2014, the appellant filed an IRA appeal with the Board. 

Quesada v. Department of Homeland Security, MSPB Docket No. DA-1221-14-

0497-W-1, Initial Appeal File (IAF), Tab 1. On March 28, 2016, the 

administrative judge issued an initial decision dismissing the appeal without 

prejudice at the appellant’s request. IAF, Tab 26, Initial Decision (ID). The 

refiling deadline was set for May 27, 2016. ID at 3. The refiling deadline passed 

without further communication from the appellant.

¶3 On August 11, 2017, the Board’s regional office received a letter from the 

appellant postmarked August 9, 2017, which it interpreted as a request to refile

the appeal. Quesada v. Department of Homeland Security, MSPB Docket 

No. DA-1221-14-0497-W-2, Refiled Appeal File (RAF), Tabs 1-2. The appeal 

was reassigned to another administrative judge, who notified the appellant that 

his refiling appeared to be untimely, apprised him of his burden on the timeliness 

issue, and ordered him to respond. 2 RAF, Tab 3. The appellant failed to respond 

to the order, and on September 6, 2017, the administrative judge issued an initial 

decision dismissing the refiled appeal as untimely without good cause shown for 

the delay. RAF, Tab 6, Refiled Initial Decision (RID).

¶4 On December 21, 2017, the Office of the Clerk of the Board received a 

letter from the appellant postmarked December 18, 2017. Quesada v. Department 

of Homeland Security, MSPB Docket No. DA-1221-14-0497-W-2, Petition for 

Review (PFR) File, Tab 1. The Office of the Clerk of the Board contacted the 

appellant and determined that the appellant intended the letter to be a petition for 

review of the initial decision. PFR File, Tab 2 at 1. The Office of the Clerk of 

the Board notified the appellant that his petition for review appeared to be 

untimely, warned him that his petition might be dismissed on that basis, and 

advised him of the legal standards and his burden of proof on the timeliness issue. 
3

Id. at 2. The appellant filed a motion to waive the filing deadline, arguing that 

his petition was untimely because he was overseas, had trouble accessing his 

email, and was medically incapacitated. PFR File, Tab 3. The agency has filed a 

response.

3

 PFR File, Tab 4.

ANALYSIS

¶5 A petition for review must be filed within 35 days after the initial decision 

is issued, or, if the appellant shows that he received the initial decision more than 

5 days after it was issued, within 30 days after the date of receipt. Williams v. 

Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. 

§ 1201.114(e). The Board will waive the filing deadline for a petition for review 

only upon a showing of good cause for the filing delay. Lawson v. Department of 

Homeland Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R. §§ 1201.12, 

1201.114(g). To establish good cause for an untimely filing, a party must show 

that he exercised due diligence or ordinary prudence under the particular 

circumstances of his 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 

 

2

The administrative judge originally assigned to this appeal had since retired.

3 After the close of the record on review, the appellant filed a series of motions making 

various allegations of misconduct and asking the Board to take action against several 

Government employees. PFR File Tab 5. Not only are these motions not permitted 

under the Board’s regulations, see 5 C.F.R. § 1201.114(a), they are irrelevant to the 

timeliness issue and are therefore immaterial to the outcome of the appeal. The 

appellant’s motions are DENIED.
4

file his 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).

¶6 In this case, it appears to be undisputed that the petition for review was 

untimely filed. The appellant is a registered e-filer, and the initial decision was 

served on him electronically on September 6, 2017—the date it was issued. RID; 

RAF, Tab 7; see 5 C.F.R. § 1201.4(i)-(n). Therefore, the deadline for filing the 

petition for review was October 11, 2017. See 5 C.F.R. § 1201.114(e) (35-day 

deadline for filing a petition for review). The December 18, 2017 petition for 

review was untimely by 73 days—a very significant delay. See Summerset v. 

Department of the Navy, 100 M.S.P.R. 292, ¶ 7 (2005) (explaining that a filing 

delay of 33 days is significant.).

¶7 The appellant gives several explanations for the filing delay, including that 

that he had no email access because he was overseas and his email account had 

been hacked. PFR File, Tab 3 at 1. We find that this explanation does not 

establish good cause. First of all, the appellant does not give the dates of his 

overseas travel. We therefore lack sufficient information to determine whether 

his travels might have accounted for some, any, or all of his filing delay. Cf.

Miller v. Department of Homeland Security, 110 M.S.P.R. 258, ¶ 18 (2008)

(finding that appellant failed to show good cause for his untimely filing when, 

among other things, he did not give the dates of his alleged hospitalization).

Second, the appellant does not explain where he traveled to that he was unable to 

access his email. Internet and email services are generally available overseas, 

and we find insufficient information to conclude that the appellant’s travels left 

him unexpectedly incommunicado for more than 73 days. As for the appellant’s 

allegation that his email account was hacked, although such an event might 

disrupt his email access for a time, there is no evidence to show that he informed 

the Board of this issue in a timely matter. Cf. Walker v. Department of the Air 

Force, 109 M.S.P.R. 261, ¶ 7 (2008) (indicating that the appellant’s failure to 

notify the administrative judge of a change in her email address did not constitute 
5

excusable neglect related to her untimely petition for review). The appellant

asserts that the administrative judge originally assigned to this appeal was aware 

that his email had been hacked and that he was overseas. 4PFR File, Tab 3 at 1. 

However, there is no documentary evidence in the record to support the 

appellant’s assertion, and in any event, that administrative judge retired in 

January 2017. Nonetheless, accepting as true this assertion, the appellant had

more than enough time to straighten out the issues with his email before the 

petition for review filing deadline 8 months later. The appellant has not 

explained how his alleged email access problems prior to the refiling of his 

appeal affected his ability to timely file his petition for review.

¶8 The appellant also argues that he suffers from migraine headaches that 

impair his ability to participate in normal activities such as work and jury duty. 

Id. at 1, 3-4. However, as the Office of the Clerk of the Board informed the 

appellant, to establish that an untimely filing was the result of an illness, he 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 

petition or a request for an extension of time. PFR File, Tab 2 at 8 n.1; see Lacy 

v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). The appellant’s 

assertion that he suffers from migraine headaches, without any medical evidence 

to show that he suffered from this condition during the relevant time period, is 

insufficient to show that his headaches could account for the entirety of the 

73-day filing delay at issue. See Gonzalez v. Department of Veterans Affairs, 

111 M.S.P.R. 697 (2009); see also Perrot v. Department of the Navy, 84 M.S.P.R. 

 

4

The appellant asserts that he was never informed that his appeal had been reassigned 

to a different administrative judge. PFR File, Tab 3 at 1. We disagree. The appellant 

was informed of the reassignment in the August 15, 2017 acknowledgment order for his 

refiled appeal. RAF, Tab 2.
6

468, ¶ 6 (1999) (stating that medical evidence proffered to show that an untimely 

filing was the result of illness must address the entire period of the delay).

¶9 Considering all of the evidence on the timeliness issue, we find that 

although he is proceeding pro se, the length of the delay is significant, and the 

appellant has not established good cause for it. 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 timeliness of 

the appellant’s refiled appeal. RID.

NOTICE OF APPEAL RIGHTS5

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. 

 

5

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

(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. 

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 
8

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 

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: 
9

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.6The 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). (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 you wish to challenge the Board’s rulings on your 

whistleblower claims only, excluding all other issues, then you may file a petition 

for judicial review either with the U.S. Court of Appeals for the Federal Circuit 

 

6

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

or any court of appeals of competent jurisdiction. 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. 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board