UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT NEWTON,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-15-0300-B-1

DATE: May 16, 2022

THIS ORDER IS NONPRECEDENTIAL1

Debra D’Agostino, Esquire, Washington, D.C., for the appellant.

Eva M. Clements and Joseph Moore, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the regional

office for further adjudication in accordance with this Remand Order. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

¶2 The appellant was formerly employed by the agency as an Auditor until he 

resigned on August 6, 2012.2 Newton v. Department of the Navy, MSPB Docket 

No. DC-0752-15-0300-I-1, Initial Appeal File (IAF), Tab 1 at 6. On October 1, 

2012, he filed a formal equal employment opportunity (EEO) complaint of 

discrimination alleging that the agency had subjected him to a hostile work 

environment that led to his involuntary resignation by, among other things, 

implanting radio frequency identification devices (RFIDs) on his body without 

his consent to track, follow, and harass him. IAF, Tab 4 at 33, 38. On 

September 25, 2014, the agency issued a final agency decision (FAD) finding no 

merit to the appellant’s discrimination claims. Id. at 33-47. On December 30, 

2014, the appellant filed a Board appeal alleging that his resignation was 

involuntary. IAF, Tab 1. The appellant appeared to indicate that he was also 

alleging whistleblower reprisal, violation of veterans’ preference rights under the 

Veterans Employment Opportunity Act of 1998 (VEOA), and a denial of a 

within-grade increase (WIGI). Id. at 3-4, 12-35. 

¶3 The administrative judge found that the appellant’s claims concerning the 

agency’s alleged nonconsensual implanting of the RFIDs previously had been 

raised in a prior appeal and issued an initial decision dismissing the appeal as 

barred by collateral estoppel. IAF, Tab 13, Initial Decision. The appellant filed a 

petition for review, which the Board granted. Newton v. Department of the Navy, 

MSPB Docket No. DC-0752-15-0300-I-1, Remand Order (Nov. 10, 2015). The 

Board remanded the appeal to provide the appellant with proper notice of his 

burdens of proof regarding his whistleblower reprisal, VEOA, and WIGI denial 

claims. Id., ¶¶ 8-11, 14-15. The Board noted that the appellant’s alleged 

involuntary resignation and WIGI denial claims did not appear to be barred by 

 

2

The appellant’s Standard Form 50 indicates that he resigned; however, in his 

pleadings, he refers to both his involuntary resignation and involuntary retirement. 

Newton v. Department of the Navy, MSPB Docket No. DC-0752-15-0300-B-1, Remand 

File, Tab 8 at 4.
3

collateral estoppel. Id., ¶ 17. The Board instructed the administrative judge to, 

among other things, revisit the issue of preclusion and address whether the 

appellant’s involuntary resignation appeal of the FAD was timely filed. Id., 

¶¶ 17, 20. 

¶4 On remand, the administrative judge issued an initial decision, dismissing 

the appellant’s alleged involuntary resignation appeal for lack of jurisdiction. 3 

Newton v. Department of the Navy, MSPB Docket No. DC-0752-15-0300-B-1, 

Remand File (RF), Tab 53, Remand Initial Decision (RID). 4 The administrative 

judge found that the agency had dismissed the appellant’s EEO complaint, 

including his involuntary resignation claim, as untimely filed and that the Board 

lacks jurisdiction to review an agency’s dismissal of an EEO complaint as 

untimely. RID at 2-3. 

¶5 On review, the appellant contends that the administrative judge improperly 

found that the agency dismissed his involuntary resignation claim as untimely. 

MSPB Docket No. DC-0752-15-0300-B-1, Remand Petition for Review File, 

Tab 4. We agree. Although the FAD indicates that the agency dismissed certain 

claims as untimely, such claims did not include the appellant’s involuntary 

resignation claim. IAF, Tab 4 at 33. Rather, the agency investigated this claim 

and issued a FAD finding that the appellant failed to establish that he was forced 

to resign due to intolerable working conditions. 5 Id. at 45. 

 

3

It is somewhat unclear whether the appeal was dismissed as untimely or for lack of 

jurisdiction. RID at 1, 3.

4

The administrative judge separately docketed the appellant’s whistleblower reprisal, 

VEOA, and WIGI denial appeals. Newton v. Department of the Navy, MSPB Docket 

Nos. DC-1221-16-0700-W-1, DC-0330-16-0702-I-1, and DC-531D-16-0701-I-1.

5

The agency initially dismissed the appellant’s involuntary resignation claim for failure 

to state a claim; however, the U.S. Equal Employment Opportunity Commission 

(EEOC) reversed the agency’s decision and remanded the claim to the agency for 

investigation. IAF, Tab 4 at 17-21. The EEOC subsequently denied the agency’s 

request for reconsideration of this decision. Id. at 23-26.
4

¶6 Because the administrative judge found that the agency dismissed the 

appellant’s involuntary resignation claim as untimely, he did not reach the issue 

of whether the appellant’s Board appeal of the FAD was timely filed. RID at 3 

n.2. An employee who files a timely formal complaint of discrimination with his

employing agency regarding a matter that is within the Board’s jurisdiction may 

also file an appeal with the Board. For such an appeal to be considered timely, it 

must be filed within 30 days after the employee receives the FAD. 5 C.F.R. 

§ 1201.154(b)(1). The record reflects that the FAD, which contained notice of 

the appellant’s Board appeal rights, was delivered to the appellant’s post office 

box on September 29, 2014. IAF, Tab 4 at 33-47, Tab 11 at 10-11. Although the 

appellant contends that he was traveling and someone else may have signed for 

the FAD, IAF, Tab 47 at 4, we find that he constructively received the FAD on 

September 29, 2014, the date it was delivered to his post office box, see Little v. 

U.S. Postal Service, 124 M.S.P.R. 183, ¶ 9 (2017); 5 C.F.R. § 1201.22(b)(3). 

Thus, we find that his December 30, 2014 appeal was over 2 months untimely. 

¶7 If an appellant fails to timely file his appeal, it will be dismissed as 

untimely filed absent a showing of good cause for the filing delay. 5 C.F.R. 

§ 1201.22(c). To establish good cause, a party must show that he exercised due 

diligence or ordinary prudence under the particular circumstances of the case. 

Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014). An appellant 

bears the burden of proof, by a preponderance of evidence, regarding the 

timeliness of his appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). 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 which 

similarly shows a causal relationship to his inability to timely file his appeal. 

Marcantel, 121 M.S.P.R. 330, ¶ 10. To establish that an untimely filing was the 

result of an illness, the party must (1) identify the time period during which he 
5

suffered from the illness, (2) submit medical evidence showing that he suffered 

from the illness during that time period, and (3) explain how the illness prevented 

him from timely filing his appeal or a request for an extension of time. Lacy v. 

Department of the Navy, 78 M.S.P.R. 434, 437 (1998). 

¶8 The administrative judge issued a timeliness order informing the appellant 

of his burden of establishing good cause. RF, Tab 46. In response, the appellant 

submitted a declaration in which he asserted that good cause existed for his 

untimely filing because from September 30 to October 6, 2014, he was traveling 

to California for toxicological support and surgery consultation due to his 

symptoms related to the RFID implants, which he contends included burns to his 

head, neck, and body, unnatural scarring, ear pain and discharge, stiffness, body 

aches, high fever, coughing, sore throat, runny and stuffy nose, headaches, chills, 

muscle pains, feeling extremely tired, and weakness that was becoming 

debilitating. RF, Tab 47 at 16. He further asserted that, while returning from 

traveling on October 6, 2014, he caught the flu, which exasperated his underlying 

symptoms and incapacitated him through December 29, 2014, and prevented him 

from timely filing his Board appeal. Id. 

¶9 The appellant submitted a declaration from his physician, confirming that 

he treated the appellant for the flu during the relevant time, diagnosed him with 

failure to thrive, dehydration, influenza, and bronchitis, wrote him a script for an 

at home caregiver, and instructed him “to rest and not to do anything as the 

results could be fatal if [the appellant] was to be active.” Id. at 30. The record 

also includes an October 23, 2013 letter from this same physician verifying that 

the appellant “has RFID implants in the pharynx and larynx area” and stating that 

testing by another doctor revealed a “foreign body” in the appellant’s neck and 

that the appellant had been referred to a surgeon at Georgetown University 
6

Hospital in Washington, D.C. to have the implants removed. 6 RF, Tab 7 at 50. 

The appellant also submitted a declaration from an industrial toxicologist who 

confirmed that from October 6 to December 29, 2014, she provided toxicological 

support to the appellant’s physician and surgery consultation to the appellant due 

to his concerns about the symptoms he was suffering due to possible implantation 

of “biosensors” by the agency. RF, Tab 47 at 18-19. Along with her declaration, 

she submitted a letter explaining the basis for her belief that the biosensors were 

implanted in the appellant’s body by the agency at various times from February 1, 

2010, to August 6, 2012. Id. at 21-23.

¶10 We find that the appellant’s submissions establish a factual dispute as to 

whether he established good cause for his untimely filing due to his medical 

condition. However, we cannot determine from the medical evidence submitted 

whether the appellant’s medical condition impaired his ability to timely file his 

appeal. Although the appellant’s physician and industrial toxicologist declare 

that they instructed the appellant to rest and not do anything while he had the flu, 

they also indicate that this was because the results could be fatal if he were to be 

active. RF, Tab 47 at 18, 30. They do not, however, offer an opinion regarding 

the effect of the appellant’s medical condition on his ability to timely file his 

Board appeal. The appellant also requested a hearing. IAF, Tab 1 at 2. 

Accordingly, we remand this appeal to the regional office to afford the appellant 

an opportunity to furnish additional evidence and a hearing, if one is required, on 

the timeliness issue. See, e.g., Braxton v. Department of the Treasury, 

119 M.S.P.R. 157, ¶ 11 (2013) (stating that, if an appellant can establish a factual 

dispute as to whether there is good cause for her untimely filing and she 

requested a hearing, she is entitled to a timeliness hearing); see also Sims v. 

 

6

This letter is addressed to both the Board and the EEOC and requests an extension of 

the deadline due to the appellant’s health condition. It is unclear what deadline this 

letter is referring to because the letter is dated almost 1 year prior to the appellant’s 

receipt of the agency’s FAD on September 29, 2014.
7

Smithsonian Institution, 101 M.S.P.R. 311, ¶ 10 (2006) (finding that the 

appellant’s claim that he was undergoing treatment for hepatitis C that caused 

flu-like symptoms, which was supported by medical opinion, was sufficient to 

establish a factual dispute as to whether he had good cause for his filing delay, 

and remanding for a timeliness hearing). If the administrative judge finds that the 

appellant has established good cause for his untimely filing, he shall determine 

whether the appellant has raised nonfrivolous allegations that his resignation was 

involuntary due to intolerable working conditions and, if so, hold the appellant’s 

requested hearing on that issue.

ORDER

¶11 For the reasons discussed above, we remand this case to the regional office 

for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board