NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SEAN MULLIGAN,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2023-2405

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. SF-0752-16-0093-I-2.

______________________ 

Decided: May 16, 2024

______________________ 

SEAN PATRICK MULLIGAN, Federal Way, WA, pro se.

 CALVIN M. MORROW, Office of General Counsel, United 

States Merit Systems Protection Board, Washington, DC, 

for respondent. Also represented by ALLISON JANE BOYLE,

KATHERINE MICHELLE SMITH. 

______________________ 

Before CHEN, LINN, and STARK, Circuit Judges.

PER CURIAM. 

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2 MULLIGAN v. MSPB

The Merit Systems Protection Board (Board) dismissed 

Mr. Sean Mulligan’s petition for review for being filed late

after Mr. Mulligan had not responded to the Board’s notice 

to show good cause for his untimely filing. Mulligan v. 

Dep’t of Homeland Sec., No. SF-0752-16-0093-I-2, 2023 WL 

4628844, at *1–2 (M.S.P.B. July 19, 2023) (Final Order). 

Because we cannot say that the Board abused its discretion 

in considering the petition to be untimely filed, we affirm. 

BACKGROUND

The Department of Homeland Security removed 

Mr. Mulligan from his position as a U.S. Customs and Border Protection Officer/Field Canine Trainer effective October 7, 2015. He appealed the removal to the Board on 

November 3, 2015, and in an initial decision, an administrative judge affirmed the removal. The initial decision indicated that it would become final on May 9, 2017, unless 

Mr. Mulligan filed a petition for review by that date. Before this deadline, Mr. Mulligan’s former legal representative requested a 60-day extension of the petition deadline 

to July 8, 2017, because Mr. Mulligan had experienced a 

death in his family and had to take on additional family 

caretaking duties. The Board issued an order finding sufficient cause for a limited extension of 30 days, extending 

the deadline to June 8, 2017. The order indicated that the 

initial decision would become final if Mr. Mulligan did not 

file a petition for review by the extended deadline.

Mr. Mulligan filed his petition for review pro se on 

June 9, 2017—one day after the extended deadline. Because his petition did not explain its untimeliness, the 

Board issued a notice of untimely filing that permitted 

Mr. Mulligan to file a motion to waive the deadline for good 

cause. He did not respond to this notice.

On July 19, 2023, the Board issued a final order dismissing the petition as untimely filed without good cause 

shown. Final Order, 2023 WL 4628844, at *1. In the 

Board’s view, Mr. Mulligan’s failure to acknowledge that 

Case: 23-2405 Document: 27 Page: 2 Filed: 05/16/2024
MULLIGAN v. MSPB 3

he did not timely file his petition, his failure to offer any 

excuse for this untimely filing, and his failure to respond to 

the Board’s notice all indicated that he did not act with due 

diligence, notwithstanding the relatively short one-day delay and Mr. Mulligan’s pro se status. Id. at *2.

Mr. Mulligan timely appealed to this court. Although 

his appeal to the Board asserted affirmative defenses based 

on retaliation against activities protected by the Equal Employment Opportunity (EEO) laws, Mr. Mulligan has since 

waived these defenses. ECF No. 22 at 2; ECF No. 24 at 3. 

We therefore have jurisdiction over this appeal. See 28 

U.S.C. § 1295(a)(9); Harris v. Sec. & Exch. Comm’n, 972 

F.3d 1307, 1318–19 (Fed. Cir. 2020).

DISCUSSION

We must affirm a Board decision unless we find it 

“(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been 

followed; or (3) unsupported by substantial evidence.” 

5 U.S.C. § 7703(c). As relevant here, the Board will consider an untimely filed petition if it finds good cause for the 

untimely filing. 5 C.F.R. § 1201.114(g). “[W]hether the 

regulatory time limit for an appeal should be waived based 

upon a showing of good cause is a matter committed to the 

Board’s discretion and this court will not substitute its own 

judgment for that of the Board.” Mendoza v. Merit Sys. 

Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).

Mr. Mulligan contends he did not receive the Board’s 

notice indicating that he had untimely filed his petition for 

review. Appellant’s Informal Br. 2. If he had received the 

notice of untimely filing, Mr. Mulligan asserts, he would 

have responded immediately. Id. According to Mr. Mulligan, he filed his petition one day late because he had experienced problems with his prior legal representation in his 

case and because he had experienced a death in his family 

and had taken on additional family caretaking duties. Id. 

Case: 23-2405 Document: 27 Page: 3 Filed: 05/16/2024
4 MULLIGAN v. MSPB

The Board previously considered these personal circumstances and Mr. Mulligan’s pro se status when it

granted an extension of time to file a petition. Moreover, 

the Board sent its notice of untimely filing to Mr. Mulligan’s email address of record on June 15, 2017, and had not 

received any responsive motion from Mr. Mulligan at the 

time of its final order on July 19, 2023. Final Order, 2023 

WL 4628844, at *1. Though we acknowledge that Mr. Mulligan’s one-day delay is relatively short, and perhaps we 

would not have exercised our discretion in the same manner as the Board, we cannot say that the Board abused its 

discretion in finding the one-day delay to be inexcusable.1

CONCLUSION

We have considered Mr. Mulligan’s remaining arguments and find them unpersuasive. For the reasons articulated above, we affirm the Board’s dismissal of 

Mr. Mulligan’s petition for review. 

AFFIRMED

COSTS

No costs.

1 See, e.g., Skaggs v. Merit Sys. Prot. Bd., 364 F. 

App’x 623, 627 (Fed. Cir. 2010) (affirming a Board decision 

finding inexcusable a one-day delay in filing a petition for 

review); Smith v. Dep’t of Army, 105 M.S.P.R. 433, 435–36

(M.S.P.B. 2007) (finding a one-day delay inexcusable because the appellant failed to respond to the Board’s notice 

of untimely filing and otherwise failed to allege any facts 

supporting good cause for untimeliness); King v. Mar. Admin., 18 M.S.P.R. 409, 410 n.2 (M.S.P.B. 1983) (denying

appellant an additional extension of time because the appellant had failed to show sufficient cause for the additional extension).

Case: 23-2405 Document: 27 Page: 4 Filed: 05/16/2024