UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBYN J. COHEN MCCARTHY,

Appellant,

v.

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Agency.

DOCKET NUMBER

AT-0752-18-0742-I-1

DATE: June 27, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Randy A. Fleischer, Esquire, Plantation, Florida, for the appellant.

Robert L. Thomas, Esquire, Atlanta, Georgia, for the agency.

Laura VanderLaan, Esquire, 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

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

dismissed her appeal for lack of jurisdiction. 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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). 

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant filed a petition for review with the Board on July 24, 2019,

but did not reference the docket number for her case. Petition for review (PFR)

File, Tab 1. That same day, the Clerk of the Board attempted to contact the

appellant by phone to clarify the intent of her submission and to determine

whether the appellant intended her filing as a petition for review of the

administrative judge’s November 16, 2018 initial decision in this appeal.

PFR File, Tab 2 at 1 n.1. The appellant contacted the Clerk’s office on

July 26, 2019, and confirmed that she intended her filing as a petition for review

of the initial decision in this appeal. Id. On July 30, 2019, the Clerk of the Board

issued an acknowledgment letter informing the appellant that her petition for

review was untimely and that she must submit a “Motion to Accept Filing as

Timely or to Waive Time Limit” either by an affidavit or a statement signed

under penalty of perjury. Id. at 2-3. A blank sample motion was attached to the

acknowledgment letter. Id. at 6-8. The acknowledgment letter further stated that

the appellant’s motion must be submitted on or before August 13, 2019. Id. at 2.

The acknowledgment letter informed the appellant that she must show good cause

for the Board to waive her untimeliness, and instructed her on how to do so. Id.

at 2, 7. The appellant has not filed a motion to accept her untimely petition for

review or to waive the time limit.

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

within 35 days after the date of issuance of the initial decision or, if the party

shows she received the initial decision more than 5 days after it was issued,

within 30 days of her receipt of the decision. 5 C.F.R. § 1201.114(e). The Board

will waive the filing deadline for a petition for review only upon a showing of

good cause for the untimely filing. Palermo v. Department of the Navy,

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120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who submits an

untimely petition for review has the burden of establishing good cause for the

untimely filing by showing that she exercised due diligence or ordinary prudence

under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4.

To determine whether a party has shown good cause, the Board will consider the

length of the delay, the reasonableness of her excuse and the party’s 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

that similarly shows a causal relationship to her inability to timely file her

petition. Id.

As noted in the petition for review acknowledgement letter, the finality

date of the initial decision was December 21, 2018, so the appellant’s petition for

review would have been due that day, at the latest. 5 C.F.R. § 1201.114(e);

see Initial Appeal File, Tab 50, Initial Decision at 6; PFR File, Tab 2 at 2.

Therefore, the appellant’s July 24, 2019 petition for review was filed 214 days

after the filing deadline. The Board has regularly held that such a delay is not

minimal. See Wright v. Department of the Treasury, 113 M.S.P.R. 124, ¶ 8

(2010) (concluding that an 11-day delay is not minimal); Scott v. Social Security

Administration, 110 M.S.P.R. 92, ¶¶ 8, 10 (2008) (finding no good cause for an

unexplained 11-day delay); Allen v. Office of Personnel Management,

97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se appellant’s 14-day,

unexplained delay in filing a petition for review); Crozier v. Department of

Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (noting that a 13-day delay in filing

is not minimal). Additionally, despite being afforded the opportunity to do so,

the appellant has not offered any explanation for her delay in filing.

Accordingly, we dismiss the petition for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

3
of the petition for review. The initial decision remains the final decision of the

Board regarding the appellant’s constructive suspension appeal. 2

NOTICE OF APPEAL RIGHTS3

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. 

(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.

2

 In her petition for review, the appellant references a purported whistleblower reprisal

claim and refers to an Office of Special Counsel (OSC) complaint file number.

PFR File, Tab 1 at 2, 5. The appellant’s reprisal for whistleblowing claim may fall

under the purview of OSC to investigate, and the appellant may have the right to file an

individual right of action (IRA) appeal with the Board after exhausting her

administrative remedies before OSC. In this Final Order, the Board makes no

determination regarding the jurisdiction or the merits concerning any potential IRA

appeal.

3

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter. 

4
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

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,

5
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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

6
(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. 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 

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. 

7
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.

8