UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EMMANUEL S. SAXIONES,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DA-0831-11-0627-I-2

DATE: February 20, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

Christopher H. Ziebarth, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his appeal of an Office of Personnel Management (OPM) 

reconsideration decision as untimely filed without good cause shown for the 

delay. Generally, we grant petitions such as this one only when: the initial 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

decision contains erroneous findings of material fact; the initial decision is based 

on an erroneous interpretation of statute or regulation or the erroneous application 

of the law to the facts of the case; the judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or 

involved an abuse of discretion, and the resulting error affected the outcome of 

the case; or new and material evidence or legal argument is available that, despite 

the petitioner’s due diligence, was not available when the record closed. See

Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, and based on the 

following points and authorities, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review. Except as expressly MODIFIED by 

our analysis of the appellant’s submission of medical documentation on review, 

we AFFIRM the initial decision. 

BACKGROUND

¶2 On August 15, 2011, the appellant filed an appeal of an OPM 

reconsideration decision that found it had correctly computed his disability 

retirement annuity. Saxiones v. Office of Personnel Management, MSPB Docket 

No. DA-0831-11-0627-I-1, Initial Decision (I-1 ID) at 1 (Oct. 13, 2011). 

Pursuant to the appellant’s request, on October 13, 2011, the administrative judge 

dismissed the appeal without prejudice to allow him to obtain additional evidence 

in support of his appeal. I-1 ID at 2. The administrative judge informed the 

parties of the appellant’s right to refile the appeal on or before January 11, 2012. 

I-1 ID at 2. 

¶3 On March 3, 2014, the appellant refiled his appeal. MSPB Docket No. DA0831-11-0627-I-2, Initial Appeal File (IAF), Tab 1. The administrative judge 

consequently issued an order on timeliness, noting that it appeared the appellant 

had refiled his appeal 752 days late and ordering him to file evidence and 
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argument to show that his appeal was timely refiled or that good cause existed for 

the delay. IAF, Tab 10. He also informed the appellant how to establish good 

cause in the event an illness prevented his timely refiling. Id. at 3 n.2. The 

appellant replied, claiming that he suffered from numerous medical problems that 

prevented the timely refiling of his appeal. IAF, Tab 13. He also claimed that he 

was submitting 160 pages of medical records to support his assertions, but he 

failed to attach the documents to his submission. Id. As a result, in an initial 

decision based on the written record, the administrative judge dismissed the 

appeal as untimely refiled without good cause shown for the delay. IAF, Tab 16, 

Initial Decision (I-2 ID). 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response in opposition, PFR File, Tab 4, to 

which the appellant has replied, PFR File, Tab 5. On review, the appellant claims 

that he emailed the medical records he referenced in his response to the timeliness 

order to the Board after a failed attempt to e-file them with his submission. Id.

at 4-5. As a result, the Office of the Clerk of the Board issued a show cause order 

to the appellant, instructing him to file the 160-page submission that he claimed 

he emailed to the Board and to explain why he did not e-file the submission with 

his response to the timeliness order. PFR File, Tab 6. The appellant replied, 

attaching 160 pages of medical documentation and explaining that the e-file 

system would not allow him to e-file the submission. PFR File, Tab 8. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant does not dispute that he refiled his appeal 752 days 

late; rather, he contends that good cause exists for the delay. PFR File, Tabs 1, 5. 

The Board has identified specific standards for determining whether good cause 

exists for excusing an untimely refiled appeal of a matter previously dismissed 

without prejudice. See Nelson v. U.S. Postal Service, 113 M.S.P.R. 644, ¶ 8 

(2010), aff’d, 414 F. App’x 292 (Fed. Cir. 2011). These include the following: 
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the appellant’s pro se status; the timeliness of the initial appeal; the appellant’s 

demonstrated intent throughout the proceedings to refile the appeal; the length of 

the delay in refiling; confusion surrounding and arbitrariness of the refiling 

deadline; the number of prior dismissals without prejudice; the agency’s failure to 

object to the dismissal without prejudice; and the lack of prejudice to the agency 

in allowing the refiled appeal. Id. 

¶6 In the initial decision, the administrative judge recognized that the appellant 

was pro se when his appeal was dismissed without prejudice and he discerned

little prejudice to the agency in allowing the refiled appeal beyond the 

expenditure of resources to defend it. I-2 ID at 3-4. He found, nevertheless, that 

the other factors weighed in favor of a finding that the appellant failed to show 

good cause to excuse the more than 2-year delay. I-2 ID at 3-4. In relevant part, 

he determined that the appellant, through his representative, did not provide 

medical documents or sufficient detail to conclude that his alleged medical 

conditions impacted his ability to refile. I-2 ID at 3. On review, the appellant 

challenges this finding, claiming that the 160-page submission he emailed to the 

Board evidenced good cause for his delay in refiling. PFR File, Tab 1 at 4-5. 

However, as described below, even upon consideration of the appellant’s 

160-page submission, we find that the appellant still fails to meet his burden.

¶7 Where a party claims that a filing delay was due to 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. Lacy v. Department of the 

Navy, 78 M.S.P.R. 434, 437 (1998). The proffered medical evidence must 

address the entire period of the delay. Jerusalem v. Department of the Air 

Force, 107 M.S.P.R. 660, ¶ 5, aff’d, 280 F. App’x 973 (Fed. Cir. 2008).

¶8 Here, the 160-page submission included numerous documents from the 

appellant’s health insurance company that showed he had received medical 
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“service[s],” such as diagnostic pathology, medical supplies, x-rays, diagnostic 

lab tests, prescription drugs, and unspecified surgeries, from October 18, 2011, 

through September 25, 2013. PFR File, Tab 8 at 10-169. Although the 

documents from his health insurance company show that the appellant received 

several medical services, including surgeries, from October 2011, through 

September 2013, he does not attempt to describe in any detail how either the 

medical services or his illnesses prevented him from timely refiling his appeal or 

requesting an extension of time to do so. Id. Moreover, even if the appellant 

could make the required showing, he has provided no medical documentation or 

descriptions of how his illnesses prevented the timely refiling of his appeal from 

September 25, 2013 (the date of the last medical document), until March 3, 2014 

(the date he refiled his appeal). Under these circumstances, the appellant has 

failed to demonstrate good cause for his untimely refiled appeal. See 

Jerusalem, 107 M.S.P.R. 660, ¶ 8 (the appellant failed to prove that he was 

impaired from filing his petition for review for the entire period of the more than 

19-year delay).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to 

request the United States Court of Appeals for the Federal Circuit to review this 

final decision. You must submit your request to the court at the following 

address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 
6

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board