UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GLORIA A. BUNCH,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0752-13-0455-I-1

DATE: July 16, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Gloria A. Bunch, Little Rock, Arkansas, pro se.

Zane Perry Schmeeckle, Kansas City, Missouri, 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

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

dismissed her appeal of her removal as barred by the doctrine of res judicata. For

the reasons set forth below, the appellant’s petition for review is DISMISSED as

untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). 

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 On July 31, 2007, the appellant appealed the agency’s decision removing

her from her position as a Social Worker at the VA Medical Center in Kansas

City, Missouri, and the administrative judge in that case issued an initial decision

on November 13, 2007, sustaining the agency’s removal action. Bunch v.

Department of Veterans Affairs, MSPB Docket No. CH-0752-07-0587-I-1, Appeal

File, Tabs 1, 32. The appellant filed a petition for review of that decision and on

February 29, 2008, the Board issued a Final Order denying the appellant’s

petition for review.2 Bunch v. Department of Veterans Affairs, MSPB Docket

No. CH-0752-07-0587-I-1, Petition for Review File, Tabs 1, 6.

¶3 On April 18, 2013, the appellant filed the instant appeal, again challenging

her removal. Initial Appeal File (IAF), Tab 1. The administrative judge issued

an acknowledgment order noting that it appeared the appellant was attempting to

raise a claim that had already been fully adjudicated and instructed her to file

evidence and argument to show good cause why her appeal should not be

dismissed on res judicata grounds. IAF, Tab 2; see IAF, Tabs 7, 9. After

considering the appellant’s jurisdictional response, the administrative judge

issued an initial decision on August 1, 2013, dismissing the appeal as barred by

the doctrine of res judicata, without holding the appellant’s requested hearing.

IAF, Tab 13, Initial Decision (ID); see IAF, Tabs 10-12. The administrative

judge informed the appellant that any petition for review of the initial decision

must be filed no later than September 5, 2013, and provided instructions on how

to do so. ID at 3-6.

2

 The appellant also filed a petition for review of the Board’s decision with the Equal

Employment Opportunity Commission (EEOC) regarding her claim that the agency

discriminated against her on the basis of reprisal for her prior protected equal

employment opportunity activity when it removed her. See Bunch v. Department of

Veterans Affairs, MSPB Docket No. CH-0752-07-0587-I-1, Petition for Review (0587

PFR) File, Tab 8. In a final decision dated April 22, 2008, the EEOC’s Office of

Federal Operations concurred with the Board’s decision finding no discrimination.

0587 PFR File, Tab 10.

2
¶4 The appellant filed a petition for review, more than 7 years later, on January

12, 2021. Petition for Review (PFR) File, Tab 1. The Acting Clerk of the Board

issued an acknowledgment order noting that the appellant’s petition for review

appeared untimely, and the appellant submitted a motion to waive the time limit

for filing a petition for review. PFR File, Tabs 2-3. The agency filed a response

requesting that the Board dismiss the petition for review as untimely filed without

good cause shown for the delay, or alternatively, affirm the initial decision

because the administrative judge correctly dismissed the appeal as barred by the

doctrine of res judicata. PFR File, Tab 4. The appellant filed a reply. PFR File,

Tab 11.3

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant’s petition for review is untimely filed without good cause shown.

¶5 The Board’s regulations provide that a petition for review must be filed

within 35 days after the date of 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the

Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on

August 1, 2013, and the administrative judge correctly informed the appellant that

she was required to file any petition for review no later than September 5, 2013.

ID at 1, 4. The appellant’s petition for review of the initial decision was filed on

January 12, 2021. PFR File, Tab 1 at 209; Tab 2 at 1. We therefore find that the

petition for review is untimely filed by over 7 years and 4 months.

3

 The appellant also filed a pleading entitled “Notice of Motion and Motion to Quash

Certificate of Service,” requesting that the Board reject the agency’s response to the

petition for review because it failed to properly serve the pleading on the appellant by

the response filing deadline. PFR File, Tab 6. In light of our disposition dismissing

this appeal as untimely filed without good cause shown for the delay, the appellant’s

motion is moot.

3
¶6 The Board may waive its timeliness regulations only upon a showing of

good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.

§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review

has the burden of establishing good cause by showing that she exercised due

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

Palermo, 120 M.S.P.R. 594, ¶ 4; 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 her

excuse and her showing of due diligence, whether she is proceeding pro se, and

whether she has presented evidence of the existence of circumstances beyond her

control that affected her ability to comply with the time limits or of unavoidable

casualty or misfortune which similarly shows a causal relationship to her inability

to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4; 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). The Board may decline to excuse a pro se appellant’s

minimal delay when she fails to establish that she acted with due diligence. See,

e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7-8

(2002).

¶7 Although the appellant is pro se, the remaining factors disfavor finding that

good cause exists for her delay in filing. Her filing delay of over 7 years and

4 months is significant. Youngblood v. U.S. Postal Service, 112 M.S.P.R. 136,

¶¶ 7-8 (2009) (finding a delay of over 2 years in the filing a petition for review

was “significant,” and declining to excuse the untimeliness of the petition, even

considering the appellant’s pro se status). We have also considered the

appellant’s assertion that the filing deadline should be waived because of her

various health conditions. The Board will find good cause for an untimely filing

when a party demonstrates that she suffered from an illness or medical condition

that affected her ability to file on time. See Pirkkala v. Department of Justice,

123 M.S.P.R. 288, ¶ 19 (2016). To establish that an untimely filing was the result

4
of an illness, the party must (1) identify the time period during which she suffered

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

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

her from timely filing her petition or a request for an extension of time. Nesby v.

Office of Personnel Management, 81 M.S.P.R. 118, ¶ 7 (1999); Lacy v.

Department of the Navy, 78 M.S.P.R. 434, 437 (1998). The party need not prove

incapacitation, only that her ability to file was affected or impaired by the

medical condition. Id.

¶8 In her motion to waive the time limit for filing a petition for review, the

appellant identifies that she has had numerous hospitalizations and surgeries, and

states that her health conditions have left her incapacitated and unable to advocate

for herself. PFR File, Tab 3 at 2-3. With her motion, she provides an undated

letter noting that she was admitted to a hospital from August 8, 2015, through

August 22, 2015, for certain health conditions, and a letter dated October 27,

2010, noting that she had been treated for fibromyalgia and had a knee

replacement on October 19, 2010. Id. at 4-5. Additionally, with her petition for

review filing, the appellant provided numerous medical documents dating from

May 1996 through December 9, 2020, documenting her various conditions. PFR

File, Tab 1 at 28-208. The bulk of these records cover the period from April 2005

through April 2014, and relate to the appellant’s treatment for various health

conditions. See id. at 30-141. The records also reflect that the appellant was

hospitalized several times during the period from April 2005 through November

2006. Id. at 30-33, 37-38, 52-53, 56, 80. In her reply to the agency’s response to

the petition for review, the appellant includes additional records covering the

period from January 2013 through January 2014, relating mostly to her hip,

shoulder, lower back, osteoarthritis, and associated pain conditions. PFR File,

Tab 11 at 8-76.

¶9 Although the appellant generally states that her various conditions

prevented her from “being of sound mind and physical health to prosecute” her

5
appeal in a timely manner, she has not specifically explained how her conditions

prevented her from filing a petition for review or motion for an extension of time.

PFR File, Tab 4 at 6. Although some of the medical records state that the

appellant is disabled and unable to work due to her various conditions and include

requests that she be provided additional time to submit filings, none of the

records explain how her illnesses prevented her from timely filing a petition for

review for the duration of the relevant time period, between the issuance of the

initial decision on August 1, 2013, and the filing of her petition for review on

January 12, 2021. See e.g., PFR File, Tab 1 at 48, 93, 137, 147-48. Specifically,

none of the medical records cover a significant portion of the 7-year period

between when the administrative judge issued the initial decision and when the

appellant filed her petition for review, including the period from April 22, 2014,

through August 7, 2015, and from August 23, 2015, through September 12, 2019.

See Pirkkala, 123 M.S.P.R. 288, ¶ 20 (finding that the appellant failed to explain

how her shoulder problems affected her ability to file a timely removal appeal);

Gonzalez v. Department of Veterans Affairs, 111 M.S.P.R. 697, ¶¶ 9-10 (2009)

(finding that a physician’s office’s notes excusing an appellant from work for

stress, insomnia, and severe headaches failed to establish that his conditions

impaired his ability to file a timely petition for review or request an extension of

time to file); Stribling v. Department of Education, 107 M.S.P.R. 166, ¶¶ 10-11

(2007) (finding that an appellant failed to establish good cause for an untimely

filing despite her assertion that she suffered from anxiety and depression because

she did not present any evidence that specifically addressed her condition during

the relevant time period even though other evidence showed that she suffered

from symptoms prior to the filing period, and because she failed to explain how

her medical conditions prevented her from making a timely filing or requesting an

extension).

¶10 Additionally, in December 2019, the appellant filed an appeal with the

Office of Personnel Management (OPM) pertaining to her Federal Employees’

6
Group Life Insurance coverage election, and subsequently filed a May 2020

Board appeal challenging OPM’s final decision and an October 2020 petition for

review of that initial decision, all during the relevant period. Bunch v. Office of

Personnel Management, MSPB Docket No. DA-0841-20-0350-I-1, Appeal File

(0350 AF), Tab 1, 15; Bunch v. Office of Personnel Management, MSPB Docket

No. DA-0841-20-0350-I-1, Petition for Review File, Tab 1; see 0350 AF, Tab 10

at 5-7. The appellant’s demonstrated ability to actively participate in other

proceedings during the relevant period weighs against a finding that her medical

conditions prevented her from timely filing her petition for review or a request

for an extension of time. See Stribling, 107 M.S.P.R. 166, ¶ 14 (finding that the

appellant failed to establish that her medical condition prevented her from timely

filing her petition for review or a request for an extension of time because she

was actively participating in other proceedings during the relevant time period).

We therefore find that the appellant has failed to establish good cause for a

waiver of the time limit.4

4

 Following the close of the record on review, the appellant submitted a motion for

leave to file an additional pleading. PFR File, Tab 18. In the motion, she requests to

submit medical records demonstrating that she was “‘incapacitated’ throughout this

process,” emphasizing that she had multiple hospitalizations during the period from

May 2, 2021, through May 7, 2021, had surgeries, and was unable to advocate for

herself. Id. at 3. She also asserts that her previous attorney failed to include all of her

medical records below and that she did not understand a prior Board order rejecting her

request to submit an additional pleading. Id.; PFR File, Tab 15. The appellant has not

provided any indication of what new medical record evidence she would like to submit,

if any, and further, she still has not alleged that the additional medical records would

explain her untimeliness during the period relevant in this appeal, from August 1, 2013,

through January 12, 2021. Regarding her assertion that her prior attorney improperly

failed to include relevant medical record evidence below, the Board has repeatedly held

that, absent evidence of deception, negligence, or malfeasance, the appellant is

generally responsible for the errors of her chosen representative. See e.g., Hamilton v.

Department of Homeland Security, 117 M.S.P.R. 384, ¶ 13 (2012) (finding that the

appellant’s claim of receiving misguided advice from his attorney was unpersuasive

because he is responsible for the errors of his chosen representative); Fox v. U.S. Postal

Service, 81 M.S.P.R. 522, ¶¶ 4-5 (1999) (rejecting an appellant’s attempt to introduce

evidence on petition for review which was not introduced below, noting that appellant

was responsible for the strategic errors of his representative); Sofio v. Internal Revenue

Service, 7 M.S.P.R. 667, 670 (1981); cf. Pacilli v. Department of Veterans Affairs,

7
¶11 For the forgoing reasons, we dismiss the appellant’s petition for review as

untimely filed without good cause shown. 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 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

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. 

113 M.S.P.R. 526, ¶ 13 (explaining that, although an appellant generally is responsible

for the errors of her chosen representative, an exception may lie when the appellant

establishes that her diligent efforts to prosecute an appeal were thwarted without her

knowledge by her attorney’s deceptions, negligence, or malfeasance), aff’d,

404 F. App’x 466 (Fed. Cir. 2010). Accordingly, the motion is denied. See 5 C.F.R.

§§ 1201.114(k), 1201.115(d).

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.

8
(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

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

9
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: 

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: 

10
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

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 

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.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 

11
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.

12