NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

MARK ALEXANDER,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2014-3215

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-1221-14-0111-W-1.

______________________ 

Decided: April 20, 2015

______________________ 

MARK ALEXANDER, Mayfield Heights, OH, pro se.

SARA B. REARDEN, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, for respondent. Also represented by BRYAN G. POLISUK. 

______________________ 
2 ALEXANDER v. MSPB

Before O’MALLEY and WALLACH, Circuit Judges, and 

GILSTRAP, District Judge.∗

PER CURIAM. 

Petitioner Mark Alexander appeals the August 4, 

2014, decision of the Merit Systems Protection Board 

(“Board”) dismissing his petition for review of his Individual Right Action (“IRA”) as untimely filed. See Alexander 

v. Dep’t of Commerce, CH-12210-14-0111-W-1 (M.S.P.B 

Aug. 4, 2014) (“Final Order”). For the reasons set forth 

below, this court affirms.

BACKGROUND

Mr. Alexander was a former Field Representative 

with the Census Bureau in Cleveland, Ohio. After he was 

discharged in March 2012, he filed a complaint with the 

Office of Special Counsel (“OSC”) alleging he was the 

victim of personnel actions protected by the Whistleblower Protection Act (“WPA”). 5 U.S.C. §§ 2301–2306 (2012). 

The OSC notified Mr. Alexander in a letter dated April 

30, 2014, that he could “file a request for corrective action 

with the [Board] within [sixty-five] days after the date of 

the letter,” Resp’t’s App. 52, setting a July 5, 2013 deadline to file an IRA with the Board. The letter also stated 

if Mr. Alexander chose to file an appeal, he “should submit the enclosed letter to the Board as part of [the] appeal.” Id. 

Mr. Alexander alleges he filed a document with the 

Board on May 3, 2013, under a Board docket number used 

in a different Board decision involving Mr. Alexander. 

The document stated “[h]ere is a letter from the OSC[,]” 

but did not include an attachment. Id. at 4. 

∗

 Honorable Rodney Gilstrap, District Judge, United States District Court for the Eastern District of Texas, 

sitting by designation. 

 
ALEXANDER v. MSPB 3

Mr. Alexander filed his IRA on November 12, 2013, 

well beyond the sixty-five day deadline, claiming the 

agency “terminated his employment in retaliation for his 

whistleblowing disclosures, as well as because of his race 

and religion.” Id. at 2. 

On February 3, 2014, the Administrative Judge 

(“AJ”), in an Initial Decision, dismissed Mr. Alexander’s 

IRA appeal for lack of jurisdiction and untimeliness.1 Mr. 

Alexander filed a petition for review of the Initial Decision. In its August 4, 2014, Final Order, the Board denied 

Mr. Alexander’s petition for review and affirmed the 

Initial Decision’s finding of untimeliness. Mr. Alexander 

appeals the Board’s Final Order dismissing his IRA as 

untimely filed. This court has jurisdiction pursuant to 28 

U.S.C. § 1295(a)(9) (2012). 

DISCUSSION

I. Standard of Review and Timeliness

Because the Board “has broad discretion to control its 

own docket,” this court must “affirm the board’s decision 

to dismiss an untimely filed petition for review unless the 

decision is shown to have been ‘arbitrary, an abuse of 

discretion, or otherwise not in accordance with law.’” 

Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388 (Fed.

Cir. 1994) (citation omitted). This court is bound by the 

Board’s factual findings “unless those findings are not 

supported by substantial evidence.” Bolton v. Merit Sys. 

Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998). 

1 The Administrative Judge (“AJ”) dismissed the 

appeal as untimely and for lack of jurisdiction. Resp’t’s 

App. 15. In its Final Decision, the Board modified the 

Initial Decision so that it could only address the untimeliness issue thus making a jurisdictional determination 

unnecessary. Id. at 3 n.3. 

 
4 ALEXANDER v. MSPB

The WPA sets specific deadlines for filing and 5 

C.F.R. § 1209.5 elaborates on those deadlines. It states 

an action must be filed: 

(1) No later than 65 days after the date of issuance of the Special Counsel’s written notification 

to the appellant that it was terminating its investigation of the appellant's allegations or, if the appellant shows that the Special Counsel’s 

notification was received more than 5 days after 

the date of issuance, within 60 days after the date 

the appellant received the Special Counsel’s notification; or,

(2) At any time after the expiration of 120 days, if 

the Special Counsel has not notified the appellant 

that it will seek corrective action on the appellant’s behalf within 120 days of the date of filing 

of the request for corrective action. 

5 C.F.R. § 1209.5; see also 5 U.S.C. § 1214(a)(3). Although “the time limit for filing an IRA appeal cannot be 

waived for good cause,” Pacilli v. Merit Sys. Prot. Bd., 404 

F. App’x 466, 469 (Fed. Cir. 2010), the Board may inquire 

as to whether equitable tolling may excuse an untimely 

filed IRA appeal. Id; see also Resp’t’s Br. 2 (“The [AJ] 

ordered Mr. Alexander to file evidence and argument 

showing that he filed on time or that the circumstances 

met the test of tolling.”). Mr. Alexander bears the burden 

of demonstrating his IRA was timely filed by a preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(ii) 

(2014). 

II. The Board Did Not Err in Dismissing Mr. Alexander’s 

IRA as Untimely Filed

The Board found Mr. Alexander did not meet his burden to show his IRA was timely filed. This finding was 

supported by substantial evidence. Mr. Alexander failed 

to demonstrate he filed his IRA before the July 5, 2013, 
ALEXANDER v. MSPB 5

deadline. Though Mr. Alexander claims he filed his 

appeal on May 3, 2013, his filing on that date was under a 

different docket number and was not accompanied by a 

letter from the OSC. He provides no evidence showing 

the filing related to the IRA in the instant case. Without 

such information, the Board correctly found Mr. Alexander did not meet his burden to show he timely filed his 

appeal. 

Mr. Alexander filed his appeal several months after 

the statutory deadline and he provides no evidence that 

this IRA was timely. Furthermore, he does not address 

why his untimely filed IRA appeal should be subject to 

the doctrine of equitable tolling. Mr. Alexander has failed 

to show why the Board’s dismissal of his petition for 

review as untimely was arbitrary, an abuse of discretion, 

or otherwise not in accordance with the law.

CONCLUSION

For the reasons set forth above, and because we find 

Mr. Alexander’s remaining arguments are without merit,

the Board’s decision is 

AFFIRMED

COSTS

No costs.