NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit ______________________ 

DONALD SPARKS,

Petitioner

v.

OFFICE OF PERSONNEL MANAGEMENT,

Respondent

______________________ 

2016-2340

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-0831-16-0264-I-1.

______________________ 

Decided: February 10, 2017

______________________ 

DONALD SPARKS, Temple, TX, pro se. 

KENNETH SAMUEL KESSLER, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

SCOTT D. AUSTIN.

______________________ 

Before LOURIE, HUGHES, and STOLL, Circuit Judges.
2 SPARKS v. OPM

PER CURIAM. 

Donald Sparks (“Sparks”) appeals from the decision of 

the Merit Systems Protection Board (“MSPB” or “the 

Board”) affirming the Office of Personnel Management’s 

(“OPM”) dismissal of his request for reconsideration of 

OPM’s denial of disability retirement benefits as untimely. Sparks v. Office of Pers. Mgmt., No. DA-0831-16-0264-

I-1, 2016 WL 3522930 (M.S.P.B. June 20, 2016) (“Decision”). Because the Board did not err in affirming OPM’s 

dismissal, we affirm. 

BACKGROUND

Sparks was employed by the Department of Veterans 

Affairs (“VA”) as a housekeeping aid from 2007–2013. On 

December 6, 2012, Sparks submitted an application for 

immediate retirement pursuant to the Federal Employees 

Retirement System, indicating that he had become disabled on October 24, 2012. On his statement of disability 

form, he indicated that he suffered from “veteran service 

connected disability mental disorder affecting [his ability 

to have] gainful employment” and that his symptoms 

included “insomnia, nightmares, . . . anxiety, sweating, 

depression[,] nausea[,] back ache,” and “ankle and leg 

pain” from an alleged job-related injury. Resp’t’s Informal 

Br. 9. Sparks described his disability as “Post-Traumatic 

Stress Disorder.” Id. 

On February 11, 2014, OPM issued an initial decision 

denying Sparks’s application for disability retirement. In 

its decision letter, OPM informed Sparks that his application was denied because, inter alia: he “did not prove that 

[he had] a medical condition/s which resulted in a service 

deficiency in performance, conduct, or attendance . . . for 

at least one year”; none of his doctors had actually recommended disability retirement; and he did not request 

any formal accommodations, but instead resigned, making it “inconclusive whether or not [the agency] could have 

accommodated [him].” Resp’t’s App. (“R.A.”) 31–34. OPM 
SPARKS v. OPM 3

also informed Sparks that he could submit a request for 

reconsideration of its decision by providing additional 

medical documentation, and that any such request must 

be “received by OPM within 30 days of the date of [the] 

letter.” R.A. 35 (emphasis in original). The letter emphasized that “[i]f your request for reconsideration is received 

by OPM after the 30-day time limit, we must dismiss your 

request as not timely filed.” Id. Thus, to be timely, 

Sparks’s request for reconsideration was due no later 

than March 13, 2014. 

On January 9, 2015, Sparks wrote OPM, stating, “I 

humbly request reconsideration of my disability retirement” and included two reports—from a doctor and an 

attorney—in support of his request. R.A. 39. On February 10, 2015 and February 15, 2015, Sparks supplemented his request for reconsideration with additional letters 

and documentation. R.A. 40–41.

On March 9, 2015, OPM informed Sparks that his 

January 9, 2015 request for reconsideration (received by 

OPM on January 15, 2015) was untimely because it was 

received well beyond the 30-day time limit specified in 

their February 11, 2014 letter. R.A. 42. OPM advised 

Sparks that he may, within 30 days of the March 9th

letter, request a waiver of untimeliness and informed him 

of the regulatory criteria for doing so—namely, that he

must show that he was either “not notified of the time 

limit and was not aware of it, or that [he] was prevented 

by circumstances beyond [his] control from making a 

timely request within the time limit.” Id. (citing 5 C.F.R. 

§ 831.109). 

On March 28, 2015, Sparks sent additional medical 

documentation and information to OPM, requesting

“reconsideration for [his] retirement,” including a statement from one of his treating physicians indicating that 

he had treated Sparks from May 28, 2014 through 2015 
4 SPARKS v. OPM

and opining that Sparks was “Permanent[ly] Disabled.” 

R.A. 44. 

On April 22, 2015, OPM treated Sparks’s March 28, 

2015 submission as a request for a waiver of untimeliness 

and denied the request. OPM explained that Sparks had 

failed to satisfy the regulatory waiver criteria. R.A. 45–

46. OPM stated:

We reviewed all the information submitted. However, the medical records and the additional paperwork provided did not prove that your 

reconsideration request could not have been filed 

timely. . . . Therefore, since you have not presented sufficient evidence to show that you were unable to file a request for reconsideration within the 

time limit provided by regulation, your reconsideration request is being dismissed as untimely 

filed.

Id. (citing 5 C.F.R. § 831.109). 

On April 26, 2015, Sparks sought to appeal OPM’s decision to the MSPB, but misdirected his materials to 

OPM. His materials included new evidence from a VA 

award notice indicating that Sparks was entitled to 

“individual unemployability” because he “is unable to 

secure or follow a substantially gainful occupation as a 

result of service connected disabilities.” R.A. 48–50.

On July 30, 2015, Sparks sent another letter to OPM 

entitled “Retirement Annuity appeal,” in which he again 

enclosed a copy of the July 16, 2015 VA award notice to 

show that he was “100% total and permanent[ly] disabled 

to work.” Id. He also stated: “I truly hope this record can 

be a part of my appeal for annuity retirement.” Id. 

On August 27, 2015, Sparks sent a letter to the MSPB 

entitled “Retirement Appeal Claimant work status,” to 

which he included a copy of the VA’s July 16, 2015 deci-
SPARKS v. OPM 5

sion letter and requested that the MSPB “please submit 

this record with my appeal for annuity retirement.” Id. 

On March 11, 2016 and April 6, 2016, an administrative judge (“AJ”) of the Board ordered Sparks to show 

cause why his MSPB appeal, which was filed more than 

90 days late, should not be dismissed as untimely. R.A.

68–62, 80–81. After a response from Sparks, the AJ 

issued an order on May 3, 2016, indicating that, although 

Sparks’s appeal was untimely, “good cause” existed for the 

untimeliness because “it appears that [Sparks] erroneously filed a second request for reconsideration with OPM, 

within the time period for filing a Board appeal.” R.A. 86. 

On June 20, 2016, the AJ issued an initial decision on 

the merits of Sparks’s appeal. See Decision, 2016 WL 

3522930. In that decision, the AJ affirmed OPM’s dismissal of Sparks’s request for reconsideration as untimely. 

Id. at *2. The AJ determined that Sparks failed to meet 

his burden of proving that “he was prevented by circumstances beyond his control from timely requesting reconsideration.” Id. Specifically, the AJ found that Sparks 

failed to present evidence specific to the relevant time 

period—between March 2014 (when the request was due)

and January 2015 (when Sparks filed the request)—to 

prove that his medical conditions and/or medications 

prevented him from timely filing his request. Id. at *6. 

The AJ concluded that “[t]he fact that he suffers from 

various medical issues, without more, is not sufficient to 

establish that he was prevented from timely requesting 

reconsideration.” Id. at *6–7. 

Sparks filed an appeal to this court before the AJ’s initial decision could become the final decision of the Board. 

This court has held that, “when a petitioner files a petition for review with this court before an AJ’s initial decision becomes final, the petitioner’s appeal ripens once 

that initial decision becomes the final decision of the 

MSPB.” Jones v. Dep’t of Health & Human Servs., 834 
6 SPARKS v. OPM

F.3d 1361, 1365 (Fed. Cir. 2016) (citations omitted). 

Because Sparks did not file a petition for review by the 

full Board, the AJ’s initial decision became the final 

decision of the Board on July 25, 2016. See Decision, 2016 

WL 3522930, slip op. at *7. Therefore, this case is now 

ripe for review and we have jurisdiction under 28 U.S.C. 

§ 1295(a)(9).

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We must affirm the Board’s decision 

unless it was: “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; 

(2) obtained without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs 

v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.

2003). “Substantial evidence” is “such relevant evidence 

as a reasonable mind might accept as adequate to support 

a conclusion.” Dickey v. Office of Pers. Mgmt., 419 F.3d 

1336, 1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. 

NLRB, 305 U.S. 197, 229 (1938)). 

On appeal, Sparks’s arguments are essentially directed toward the merits of OPM’s initial decision, without addressing the fact that he untimely filed his request 

for reconsideration of that decision. As he did during the 

OPM proceedings and the MSPB appeal, Sparks again 

points to the VA determination that he qualified for a 

“100% unemployability” status on January 13, 2013 and 

that he suffers from “severe post traumatic stress disorder.” Pet’r’s Informal Br. 1. Thus, Sparks’s argument 

appears to be that the medical condition(s) which prompted his initial application for disability retirement also 

prevented him from making a timely request for reconsideration of OPM’s decision denying that application. 

The government responds that: (1) the Board did not 

fail to take into account any facts; (2) the Board applied 
SPARKS v. OPM 7

the correct law—namely, that a waiver of OPM’s 30-day 

deadline could be granted only when an individual shows 

that “he or she was not notified of the time limit and was 

not otherwise aware of it, or that he or she was prevented 

by circumstances beyond his or her control from making 

the request within the time limit,” 5 C.F.R. 

§ 841.306(d)(2); (3) the Board correctly applied the law to 

the facts of this case when concluding that, because 

Sparks failed to submit evidence specific to the relevant 

time period—between March 13, 2014, on which the 30-

day deadline expired, and January 9, 2015, on which 

Sparks filed his untimely request for reconsideration—he 

did not meet his burden of proving by a preponderance of 

the evidence that he was prevented by circumstances 

beyond his control from making a timely request; and 

(4) Sparks has not presented any evidence undermining 

the Board’s findings. Resp’t’s Informal Br. 19–25. 

We agree with the government that the Board applied 

the correct law and that substantial evidence supports the 

Board’s determination that Sparks failed to establish by a 

preponderance of the evidence that he was prevented by

circumstances beyond his control from making a timely 

request for reconsideration of OPM’s decision. Decision, 

2016 WL 3522930, slip op. at *7. Specifically, the Board

correctly found that: (1) record evidence indicates that 

Sparks’s medical issues did not “in and of themselves 

prevent him from handling his affairs,” and (2) Sparks 

failed to present evidence specific to the relevant time 

period to prove that his medical problems “actually prevented him” from making a timely request. Id. 

For example, the Board noted that in 2010–2011, 

when Sparks claimed that his symptoms were the worst, 

he undertook activities indicating that he was “at 

times . . . able to manage his affairs, notwithstanding his 

medical issues.” Id. at *5. Specifically, the Board noted 

that in 2010, Sparks entered into a settlement agreement 

regarding an Equal Employment Opportunity (“EEO”) 
8 SPARKS v. OPM

complaint (May 2010), filed a claim of breach regarding 

that agreement (August 2010), and agreed to further 

mediation of the complaint (September 2010). Id. at *7. 

Even when Sparks was experiencing a worsening of his 

symptoms in September 2011, the Board observed, his 

physician determined that he was “nonetheless capable of 

managing his financial affairs” and did not “display gross 

impairment in thought processes or communication or 

intermittent inability to perform activities of daily living.” 

Id. at 5–6 (internal quotation marks omitted). 

The Board noted additional examples from 2012 indicating that he was at times capable of managing his 

affairs. In April 2012, he requested information regarding filing for disability retirement. Id. at *6. In June 

2012, he filed a Notice of Disagreement in response to a 

decision from the VA on a claim he had filed. Id. In 

September 2012, he filed another EEO complaint and 

participated in an investigation of that complaint. Id. In 

December 2012, he completed his application for disability retirement. Id. In August 2012, the VA certified that 

Sparks was “job ready” and “likely to succeed in performing the duties” of a position for which he had applied. Id. 

Based on the foregoing, the Board found that Sparks’s 

medical problems did not “in and of themselves prevent 

him from handling his affairs.” Id. at *7. That factual 

finding was supported by substantial evidence.

Second, the Board identified the relevant time period 

for the untimeliness issue as between March 2014 (when 

the 30-day deadline expired) and January 2015 (when 

Sparks filed his untimely request for consideration). Id. 

at *6. Because Sparks presented no evidence specific to 

that time period that would prove that his medical conditions and/or medications prevented him from making a 

timely request, the Board concluded that Sparks had not 

met his burden of proving by a preponderance of the 

evidence that circumstances beyond his control “actually 

prevented him from doing so.” Id. at *7. That conclusion 
SPARKS v. OPM 9

is in accordance with law and supported by substantial 

evidence. 

We also find no abuse of discretion or error of law in 

the Board’s decision. Sparks does not identify any evidence that the Board overlooked or that which would 

contradict the Board’s conclusions. Rather, the record in 

this case supports (1) the Board’s findings that Sparks 

was, at least at times, able to manage his affairs and that 

he failed to provide evidence specific to the relevant time 

period to show that he was unable to manage his affairs 

during that time, and (2) thus, its conclusion that Sparks

failed to meet his burden of proving the regulatory waiver 

criteria by a preponderance of the evidence. 5 C.F.R. 

§ 841.306(d)(2). 

CONCLUSION

We have considered Sparks’s remaining arguments, 

but find them unpersuasive. For the foregoing reasons, 

the decision of the Board is affirmed.

AFFIRMED

COSTS

No costs.