UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILSON H. ESTRADA,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

AT-0752-19-0239-I-1

DATE: July 3, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Wilson H. Estrada, Miami, Florida, pro se.

Jessica V. Johnson, Esquire, Atlanta, Georgia, for the agency.

 BEFORE

Cathy A. Harris, Chairman

 Raymond A. Limon, Vice Chairman

 Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

 FINAL ORDER

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

dismissed his removal appeal as withdrawn. For the reasons set forth below, the

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
appellant’s petition for review is DISMISSED as untimely filed without good

cause shown. 5 C.F.R. § 1201.114(e), (g). 

BACKGROUND

The appellant filed an appeal of his removal from the agency, and on

April 5, 2019, the administrative judge dismissed the appeal as withdrawn. Initial

Appeal File (IAF), Tab 11, Initial Decision. The initial decision was served on

the appellant the same day, by mail, at his address of record. IAF, Tab 12. The

appellant does not deny that he received the initial decision in due course of the

mails. See Robinson v. Department of Veterans Affairs, 72 M.S.P.R. 444, 451

(1996).

On June 7, 2020, the appellant filed a petition for review, suggesting that

he withdrew this mixed-case removal appeal because he mistakenly believed that

his removal was the subject of a pending equal employment opportunity

complaint. Petition for Review (PFR) File, Tab 1 at 4, 9-10. The Office of the

Clerk of the Board issued an order, informing the appellant that his petition for

review appeared to be untimely filed and directing him to show either that it was

timely or that there was good cause for the delay. PFR File, Tab 4. The appellant

did not respond.

DISCUSSION OF ARGUMENTS ON REVIEW

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

which the initial decision was issued, or if the initial decision was received more

than 5 days after the date of issuance, then within 30 days after the receipt of the

initial decision, whichever is later. 5 C.F.R. § 1201.114(e). The Board will

waive the time limit for filing a petition for review only upon a showing of good

cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause,

the appellant must show that he exercised due diligence or ordinary prudence in

the particular circumstances of the case. Quarles v. Department of Housing and

Urban Development, 47 M.S.P.R. 636, 638 (1991).

2
The Board will not excuse even a minimal filing delay without a showing

of good cause, Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 6 (2007),

and in this case, the appellant’s petition for review was untimely by more than

1 year without any explanation at all. In the absence of a motion to address the

timeliness issue, the Board may still determine on the basis of the existing record

whether there was good cause for an untimely filing. Brown v. Department of the

Army, 108 M.S.P.R. 90, ¶ 8 n.2 (2008); 5 C.F.R. § 1201.114(g). However, our

review of the record reveals nothing that might establish good cause for the

significant untimeliness of this petition for review.

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 removal appeal.

NOTICE OF APPEAL RIGHTS2

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.

2

 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.

3
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

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

4
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

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: 

5
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.3 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).

3

 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. 

6
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. 

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.

7