UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

THOMAS F. DAY,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBERS

DC-1221-12-0528-W-2

DC-1221-15-0211-W-1

DATE: March 28, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thomas F. Day, Sterling, Virginia, pro se.

Lorna J. Jerome and Edith Moore McGee, Washington, D.C., for the 

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
2

FINAL ORDER

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

denied his requests for corrective action in these joined individual right of action 

(IRA) appeals. For the reasons set forth below, the appellant’s petition for review 

is DISMISSED as untimely filed by 27 days without good cause shown for the 

delay. 5 C.F.R. § 1201.114(e), (g). 

¶2 The appellant, a Contract Specialist, filed two IRA appeals with the Board, 

alleging that the agency engaged in a number of personnel actions in retaliation 

for his whistleblower activity. Day v. Department of Homeland Security, MSPB 

Docket No. DC-1221-15-0211-W-1, Initial Appeal File (0211 IAF), Tab 1; Day v. 

Department of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1, 

Initial Appeal File (0528 IAF), Tab 1. Prior to issuing an initial decision, the 

administrative judge joined the appeals for adjudication. Day v. Department of 

Homeland Security, MSPB Docket No. DC-1221-12-0528-W-2, Appeal File

(0528-W-2 AF), Tab 401 at 2. He issued an initial decision denying corrective 

action on September 13, 2016. 0528-W-2 AF, Tab 414, Initial Decision (ID). In 

his decision, the administrative judge informed the parties that the decision would 

become final on October 18, 2016, unless a petition for review was filed by that 

date. ID at 42. The appellant did not file a petition for review by that date and 

instead submitted a pleading postmarked November 14, 2016. Id.; Day v. 

Department of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-2, 

Petition for Review (PFR) File, Tab 1.

¶3 The Office of the Clerk of the Board informed the appellant that it appeared 

that his petition was untimely filed and afforded him the opportunity to submit a 

motion to either accept the filing as timely and/or waive the time limit for good 

cause. PFR File, Tab 2 at 1-2. The appellant responded by submitting an 

affidavit in which he states that he did not receive the initial decision until he 

accessed the e-Appeal Online repository on November 7, 2016, and that he 
3

assumed that he would have received an email stating that the initial decision had 

been issued. PFR File, Tab 3 at 5. He also asserts that he attempted to contact 

the administrative judge on the date that he discovered that the initial decision 

had been issued and left a voicemail for him. Id. at 6. The appellant challenges 

the validity of the certificate of service from the initial decision in MSPB Docket 

No. DC-1221-12-0528-W-2 because it did not list his email address. Id. at 6-7. 

Further, he appears to argue that there was no certificate of service included in 

the case file for MSPB Docket No. DC-1221-15-0211-W-1. Id. at 7. He

characterizes the aforementioned issues as significant errors in the e -Appeal 

Online system that support a finding of good cause for his filing delay. Id. The 

appellant also has filed a pleading that he wishes the Board to consider as his 

substantive petition for review. PFR File, Tab 4.

¶4 A petition for review must be filed within 35 days after the 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. 5 C.F.R. § 1201.114(e). The Board will 

waive the time limit only upon a showing of good cause for the delay. 5 C.F.R. 

§ 1201.114(f). The appellant bears the burden of proof regarding timeliness. 

Smith v. Department of the Army, 105 M.S.P.R. 433, ¶ 4 (2007).

¶5 Here, the appellant was a registered e-filer. 0528 IAF, Tab 10; see 

0528-W-2 AF, Tab 412. Registration as an e-filer constitutes consent to accept 

electronic service of pleadings filed by other registered e-filers and documents 

issued by the Board. 5 C.F.R. § 1201.14(e). Consequently, the appellant was 

deemed to have received the initial decision when it was issued on September 13, 

2016. Martinez v. Broadcasting Board of Governors, 115 M.S.P.R. 46, ¶ 6 

(2010); 5 C.F.R. § 1201.14(m)(2). Accordingly, his petition for review was due 

35 days after the issuance of the initial decision, or by October 18, 2016. 
4

¶6 The appellant mailed his pleading. The date of filing by mail is the 

postmark date. 5 C.F.R. § 1201.4(l). His pleading was not postmarked until 

November 14, 2016. PFR File, Tab 1. Thus, his petition for review was 27 days 

late.

¶7 The Board may grant a waiver of a time limit for filing a petition for 

review, in the interest of justice, after considering all of the facts and 

circumstances of a particular case. Terrell v. U.S. Postal Service, 114 M.S.P.R. 

38, ¶ 6 (2010). To establish good cause for the untimely filing, a party 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). To determine whether an appellant has shown good cause, the 

Board will consider the length of the delay, the reasonableness of his excuse and 

his showing of due diligence, whether he is proceeding pro se, and whether he has 

presented evidence of the existence of circumstances beyond his control that 

affected his ability to comply with the time limits or of unavoidable casualty or 

misfortune that similarly shows a causal relationship to his inability to timely file 

his petition. 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).

¶8 We find that the appellant’s primary excuse that he did not receive the 

initial decision is not reasonable as it is contradicted by the Board’s records 

indicating that the initial decision was emailed to his email address of record. 

See Terrell, 114 M.S.P.R. 38, ¶ 8. Additionally, we find that he did not act 

diligently because, although he admits that he discovered on November 7, 2016,

that the administrative judge had issued the initial decision, he did not file a 

petition for review or request an extension of time to do so until November 14, 
5

2016.

3

 PFR File, Tab 3 at 5. We also are not persuaded by the appellant’s 

general dissatisfaction with the Board’s e-Appeal Online system.4

¶9 We recognize that the appellant is pro se. However, we also find that the

27-day delay in this case is not minimal. See Gerdts v. Department of Labor, 

111 M.S.P.R. 412, ¶ 17 (2009) (stating that a 21-day filing delay of a petition for 

review is not minimal). 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 requests for corrective 

action.

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 

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 

 

3

The appellant has submitted what appears to be a 48-second outgoing call record on 

November 7, 2016, from his cellular phone to the administrative judge. PFR File, Tab 3 

at 10. We find that, regardless of the appellant’s attempt to contact the administrative 

judge, he was still required to exercise due diligence in filing his petition for review. 

4

The appellant’s assertions that the Board did not include proper certificates of service 

in his appeals are not supported by the record. 0211 IAF, Tab 449; 0528-W-2 AF,

Tab 415.

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.
6

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 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 
7

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 befor e 

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 
8

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.6 The court of appeals must receive your petition for 

 

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. 
9

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. 
10

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