UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FREDERICK FAIR,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-1221-16-0139-W-1

DATE: October 26, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Frederick Fair, Alexandria, Virginia, pro se.

Michael J. Buxton and William R. Kraus, Alexandria, Virginia, for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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 for lack of jurisdiction. For 

the reasons set forth below, we DISMISS the petition for review as untimely filed 

without good cause shown for the delay. 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 The administrative judge dismissed the appellant’s IRA appeal for lack of 

jurisdiction by initial decision dated October 18, 2016. Initial Appeal File, 

Tab 24, Initial Decision (ID) at 1, 7. The administrative judge informed the 

parties that her decision would become a final decision of the Board on

November 22, 2016, unless either party filed a petition for review by that date.

ID at 7.

¶3 On December 2, 2016, the Board received the appellant’s petition for 

review, sent by facsimile, challenging the initial decision.2 Petition for Review 

(PFR) File, Tab 1. The Clerk of the Board issued a notice stating that the petition 

was untimely because it was not postmarked or received by the Board on or 

before November 22, 2016, and affording the appellant the opportunity to file a 

motion, supported by a statement signed under penalty of perjury or an affidavit, 

showing that the petition was timely or that the time limit should be waived for 

good cause. PFR File, Tab 2. The appellant filed a Motion for Extension of Time 

to File a Petition for Review, “sworn to under penalty of perjury.” PFR File, 

Tab 3. The agency filed a response to the petition for review, arguing, inter alia, 

that it should be dismissed as untimely filed. PFR File, Tab 4.

ANALYSIS

¶4 The Board’s regulation governing the time for filing a petition for review 

states as follows:

Any petition for review must be filed within 35 days after the date of 

issuance of the initial decision or, if the petitioner shows that the 

initial decision was received more than 5 days after the date of 

issuance, within 30 days after the date the petitioner received the 

initial decision . . . If the petitioner is represented, the 30-day time 

 

2

The petition for review was filed by the appellant’s representative, who represented 

him below. Six months later, after the close of the record on review, the representative 

withdrew his appearance. Petition for Review (PFR) File, Tab 5.
3

period begins to run upon receipt of the initial decision by either the 

representative or the petitioner, whichever comes first.

5 C.F.R. § 1201.114(e). The appellant does not allege that he received the initial 

decision more than 5 days after its issuance date. As he did not file his 

submission until December 2, 2016, it was filed 10 days late.

¶5 The Board will waive its time limit only upon a showing of good cause for 

the delay in filing. Washington v. Department of the Navy, 101 M.S.P.R. 258, 

¶ 12 (2006). To establish good cause for an untimely filing, the appellant must 

show that he 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). The Board will consider the length of the delay, the 

reasonableness of the appellant’s excuse and his showing of due diligence, 

whether he is proceeding pro se, and whether he has presented evidence of 

circumstances beyond his control that affected his ability to comply with the time 

limit or of unavoidable casualty or misfortune that prevented him from timely 

filing his petition for review. Wyeroski v. Department of Transportation, 

106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed. Cir. 2007). 

¶6 Absent other factors showing good cause, the Board has declined to excuse 

even delays that are not particularly lengthy. See, e.g., Melendez v. Department 

of Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009) (declining to waive the filing 

deadline for a 3-day delay). The appellant was not proceeding pro se and has 

presented no evidence of circumstances beyond his control that affected his 

ability to comply with the time limits or of unavoidable casualty or misfortune 

that prevented him from timely filing his petition for review. In his motion for an 

extension, the appellant’s then-representative states that he became sick on 

November 23, 2016, the date he states the petition for review was due. PFR File, 

Tab 3. In fact, as noted, the petition for review was actually due by 

November 22, 2016. ID at 7. Therefore, to the extent the then-representative was 

ill after the due date, any such illness was of no consequence because the filing 
4

date already had passed. The representative also claims that, because of his 

continued discomfort, he had difficulty locating the Board’s facsimile number, 

and so he “waited” until November 27, 2016, also after the filing deadline, to 

email the petition and that, after being advised that the Board does not accept 

such pleadings,3he faxed the petition for review on December 3, 2016.4 PFR 

File, Tab 3. The appellant’s then-representative has not explained when, during 

the 30-day filing period, he completed work on the petition for review. In any 

event, he did not exercise due diligence in waiting to file the petition until after

the filing deadline had passed.

¶7 In sum, we find that the appellant has failed to show that he exhibited due 

diligence or ordinary prudence in filing his petition for review. Accordingly, we 

find no good cause for waiving the filing deadline and dismiss the petition for 

review as untimely filed.

¶8 This is the final order of the Merit Systems Protection Board concerning the 

timeliness of the appellant’s petition for review. The initial decision will remain 

the final decision of the Board regarding the dismissal of the appellant’s IRA 

appeal for lack of jurisdiction.

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 

 

3

The Board’s regulations clearly provide that filings must be filed by commercial or 

personal delivery, by facsimile, by mail, or by electronic filing. 5 C.F.R. 

§ 1201.114(d).

4 As noted, the Board received the faxed petition on December 2, 2016.

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.
5

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 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 
6

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. ____ , 137 S. Ct. 1975 (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, 
7

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 

(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 

 

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. 
8

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. 

 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

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