UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BARBARA REYNOLDS,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

PH-1221-17-0057-W-1

DATE: April 16, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Cassandra Koonce, Charlotte Hall, Maryland, for the appellant.

Emily Markos, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her individual right of action (IRA) appeal as settled. 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND

The appellant is a GS-11 Claims Specialist who filed a complaint with the

Office of Special Counsel (OSC). Initial Appeal File (IAF), Tab 1 at 1, 5. In a

letter summarizing the appellant’s complaint, OSC indicated that she had alleged

that she was not selected for a promotion in reprisal for refusing to obey one of

her manager’s orders to inflate a veteran’s disability benefits in violation of

applicable laws, rules, and regulations. IAF, Tab 3 at 2-3. On September 29,

2016, OSC terminated its investigation of the appellant’s complaint. Id. at 6-8.

The appellant then filed this IRA appeal on November 1, 2016. IAF,

Tab 1. In May 2017, the appellant and the agency entered into a settlement

agreement. IAF, Tab 17. Under the terms of the agreement, the appellant agreed

to withdraw this appeal with prejudice and release all her claims against the

agency. Id. at 4-5. The agency agreed to provide the appellant with training and

an award. Id. at 6. 

On May 23, 2017, the administrative judge dismissed the appeal as settled

and entered the settlement agreement into the record for enforcement purposes.

IAF, Tab 18, Initial Decision (ID). The initial decision noted that it would

become final on June 27, 2017, unless a petition for review was filed by that date.

ID at 3. 

Approximately 11 months later, on June 6, 2018, the Office of the Clerk of

the Board received a petition for review filed by the appellant via mail,

postmarked May 19, 2018. Petition for Review (PFR) File, Tab 1 at 1, 17. The

appellant indicates that her manager and supervisor had retaliated against her and

that the initial decision failed to make her whole by providing her with a

promotion. PFR File, Tab 1 at 4-5. The appellant stated in a motion to accept her

late filed petition for review that good cause existed because she was “totally

incapacitated” between April 12, 2018, and May 2, 2018. Id. at 8. 

On June 6, 2018, the Clerk’s Office issued a notice acknowledging the

appellant’s petition and informing her that her petition was untimely filed.

2
PFR File, Tab 2. The Clerk’s Office set a deadline of June 21, 2018, for the

appellant to file a motion to either accept the filing as timely or waive the time

limit for good cause. Id. at 2. The appellant has not filed such a motion with the

Board.

DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision, or if the party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The

date of filing by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l). 

Here, the initial decision was issued on May 23, 2017, and the appellant did

not show that she received it more than 5 days after it was issued. Accordingly,

she was required to file her petition for review by June 27, 2017. Instead, her

petition for review was filed by mail, postmarked May 19, 2018. PFR File, Tab 1

at 17. It was therefore 326 days late.

The Board will excuse the untimely filing of a petition for review only

upon a showing of good cause for the delay. Via v. Office of Personnel

Management, 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). To

determine whether an appellant has shown good cause, the Board will consider

the length of the delay; the reasonableness of her excuse and her showing of due

diligence; whether she is proceeding pro se; 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

that similarly shows a causal relationship to her inability to timely file her

petition for review. 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).

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Here, the appellant is represented by a non-attorney union representative. 2

IAF, Tab 1 at 3, Tab 17 at 9; PFR File, Tab 1 at 6. Her approximately 10-month

filing delay is significant. See Batiste v. U.S. Postal Service, 98 M.S.P.R. 621,

¶ 8 (2005) (finding a pro se appellant’s approximately 10-month filing delay to be

significant), aff’d, 158 F. App’x 294 (Fed. Cir. 2005). She has done nothing more

than vaguely assert that her petition was untimely because she was “totally

incapacitated” between April 12, 2018, and May 2, 2018. PFR File, Tab 1 at 8.

Her assertion is not made under penalty of perjury. Id. But, even if true, her

assertion does not explain why she did not file her petition for review during the

over 9-month period between June 27, 2017, and April 12, 2018. See Alexander

v. Department of Veterans Affairs, 76 M.S.P.R. 285, 288-89 (1997) (dismissing

the appellant’s petition for review as untimely filed because, even if the Board

found good cause for waiving a portion of the filing delay, the appellant failed to

offer any evidence or argument to explain another portion of the filing delay),

aff’d, 152 F.3d 948 (Fed. Cir. 1998) (Table). 

It is also significant that the appellant did not respond to the letter from the

Clerk’s Office informing her that untimely petitions for review, such as hers, had

to be accompanied by a motion to either accept the petition as timely or waive the

time limit for good cause, and affording her the opportunity to make such a

motion. PFR File, Tab 2 at 1-2. Under these circumstances, we find that the

appellant has failed to establish good cause for her untimely filed petition for

review. See Batiste, 98 M.S.P.R. 621, ¶ 8; Alexander, 76 M.S.P.R. at 288-89.

In her petition for review, the appellant may be alleging that the agency has

not adhered to the terms of the May 2017 settlement agreement. PFR File, Tab 1

at 6. To the extent that the appellant seeks enforcement of the settlement

agreement, she must file a petition for enforcement with the regional office that

2

 The appellant’s petition for review is apparently signed by her representative, but it is

unclear to what extent her representative assisted her in drafting or filing the petition

for review. PFR File, Tab 1 at 6. Even if the appellant were proceeding pro se, our

decision would remain the same.

4
issued the initial decision. See Reid v. U.S. Postal Service, 61 M.S.P.R. 84, 90

(1994); 5 C.F.R. § 1201.182(a).

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 appellant’s IRA appeal.

NOTICE OF APPEAL RIGHTS3

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. 

(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

3

 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.

5
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

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

6
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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

7
(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 .

4

 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

4

 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.

8
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

9