NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

LEELAND O. WHITE,

Petitioner,

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent.

______________________ 

2013-3146

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA3330120297-I-1.

______________________ 

Decided: January 14, 2014

______________________ 

LEELAND O. WHITE, of El Paso, Texas, pro se. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief was BRYAN G.

POLISUK, General Counsel.

______________________ 

Before PROST, WALLACH, and CHEN, Circuit Judges.
2 WHITE v. MSPB

PER CURIAM. 

Leeland O. White appeals from an order of the Merit 

Systems Protection Board (“Board”) denying his petition 

for review of a decision by the administrative judge dismissing his claims for lack of jurisdiction, on the basis 

that the petition for review was untimely filed without 

good cause for delay. Because the Board did not abuse its 

discretion and acted in accordance with the law, we 

affirm. We also dismiss Mr. White’s motion to remand his 

case to the Office of Personnel Management (“OPM”), as 

we lack jurisdiction over his untimely filed request for 

judicial review.

BACKGROUND

Mr. White was an applicant for employment as a Public Safety Officer with the International Boundary and 

Water Commission: United States and Mexico (“Agency”), 

a position advertised by the San Antonio Services Branch 

of OPM. The body of the vacancy announcement for the 

position included veterans’ preference language, as well 

as a list of key requirements that included passing a preemployment physical as a condition of employment. Mr. 

White was found to be qualified and OPM referred him for 

positions in Texas. He was also informed of the preemployment screening process scheduled on March 10, 

2012, which included a physical fitness assessment. Mr. 

White participated in the screening, but failed to complete 

a component of the fitness assessment. The Agency 

subsequently removed him from consideration for the 

position. 

Mr. White appealed the Agency’s decision, which notified him of his right to appeal to the Board under the 

Veterans Employment Opportunities Act (“VEOA”) on 

March 21, 2012, after having initially filed a complaint 

with the Department of Labor. On March 30, 2012, the 

Board advised Mr. White that it might not have jurisdiction over his appeal and gave him an opportunity to 
WHITE v. MSPB 3

submit argument and evidence to establish the Board’s 

jurisdiction. Mr. White responded on April 11, 2012, 

arguing that the Board had jurisdiction over his claim as 

an individual right of action (“IRA”) pursuant to 5 U.S.C 

§ 1221 and that VEOA did not apply to his case. On June 

27, 2012, the administrative judge issued an initial decision dismissing Mr. White’s VEOA appeal on the grounds 

that Mr. White had failed to raise a nonfrivolous argument that the Agency had violated a regulation or statute 

related to veterans’ preference and that Mr. White had 

failed to show that he had exhausted his IRA remedy 

before the Office of the Special Counsel. 

The administrative judge’s initial decision was sent to 

Mr. White, including a “Notice to Appellant” advising that 

the initial decision was to become final on August 1, 2012, 

unless a petition for review was filed by that date or the 

Board reopened the case on its own motion. The Notice 

further advised Mr. White that the date the final decision 

issues “is an important date because it is usually the last 

day on which you can file a petition for review with the 

Board,” and that the “date on which the initial decision 

becomes final also controls when you can file a petition for 

review with the Court of Appeals for the Federal Circuit.” 

The following paragraphs provided instructions for filing 

a petition for review. Under the heading entitled “Board 

Review,” Mr. White was informed that he could request 

Board review by filing a petition for review by the later of 

the date on which the initial decision became final or 

thirty days after receipt of the initial decision if it was 

received more than five days after the date of issuance. 

The instructions also provided the address of the Clerk of 

the Board as well as instructions for filing the petition 

electronically. The section describing the process for 

Board review was followed immediately by a section 

entitled “Judicial Review,” which stated that if Mr. White 

was “dissatisfied with the Board’s final decision,” he could 

file a petition with this court pursuant to 5 U.S.C. § 7703, 
4 WHITE v. MSPB

and provided this court’s address. This section of the 

instructions also indicated that to be timely, a petition 

“must be received by the court no later than 60 calendar 

days after this initial decision becomes final.” 

On August 21, 2012, Mr. White faxed the Board’s regional office a pleading entitled “Rule 59 Fed. Civ. P. 

Motion to Amend the Judgment” challenging the initial 

decision’s dismissal and seeking relief from the Board. 

The regional office forwarded the pleading to the Clerk of 

the Board, and it was docketed as a petition for review. 

On August 29, 2012, the Board notified Mr. White that 

the petition for review was untimely filed without an 

accompanying motion to accept the petition as timely or 

showing good cause for an untimely filing, including an 

affidavit or sworn statement of facts, pursuant to 5 C.F.R. 

§ 1201.114(f). The Board gave Mr. White notice that he 

could submit such a motion and statement of facts by 

September 13, 2012. On October 1, 2012, Mr. White filed 

a reply to the Agency’s response to his petition on the 

merits, but only addressed the untimely filing by attaching an unsworn “certificate of service.” 

On June 6, 2013, the Board issued a final order finding that Mr. White’s petition for review of the initial 

decision was untimely filed without good cause shown for 

the delay. On July 8, 2013, Mr. White filed a timely 

request for judicial review of that order (related to the 

timeliness of his petition for review). While Mr. White’s 

appeal was pending, he filed a motion for limited remand 

of his case to the OPM on November 21, 2013.

DISCUSSION

Our review of the Board’s decisions is limited by statute. Pursuant to 5 U.S.C. § 7703(c), we set aside any 

action, findings, or conclusions found to be: (1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with the law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 
WHITE v. MSPB 5

or (3) unsupported by substantial evidence. Mendoza v. 

Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)

(en banc). “[W]hether the regulatory time limit for an 

appeal should be waived based upon a showing of good 

cause is a matter committed to the Board’s discretion and 

this court will not substitute its own judgment for that of 

the Board.” Id. 

To seek the Board’s review of the administrative

judge’s initial decision on his case, Mr. White would have

needed to submit his petition for review by August 1, 

2012. The record shows that the Board’s regional office 

did not receive a petition for review until August 20, 2012. 

Because Mr. White’s petition was entitled a “motion to 

amend the judgment” and included a request for relief 

from the Board to compel the Agency to hire him, the 

Board did not abuse its discretion in interpreting Mr. 

White’s petition as an untimely filed petition for review. 1 

The only evidence that Mr. White submitted to establish good cause for the untimely filing of his petition for 

review was the unsworn “certificate of service” that he 

attached to his October 1 reply to the Agency’s arguments. This document indicated that he had sent a 

petition to the regional office to the wrong address on July 

24, 2012, which would have been timely. 

1 While it has no effect on the outcome of this case, 

we do observe that the Board’s instructions attached to its 

initial decision could be clearer in setting out the significance of the different deadlines for the alternative avenues for review. The instructions simply include the text 

describing the process for Board review immediately 

followed by the text describing judicial review. It may not 

be clear to a pro se petitioner that even once a final decision issues and the deadline for Board review passes there 

are still sixty days left to make a timely filing for judicial 

review. 

 
6 WHITE v. MSPB

As the Board discussed in its order, Mr. White’s error 

in addressing his filing may have sufficed as good cause 

for an untimely filing, especially given that he is a pro se 

petitioner. However, he did not provide any further 

information or explanation regarding his good faith effort 

to file his petition in a timely manner. It was Mr. White’s 

burden to respond to the order to show good cause for the 

delay “in a timely manner with a statement explaining 

precisely why he was unable to file his appeal on time.” 

Anderson v. Dep’t of Justice, 999 F.2d 532, 534 (Fed. Cir. 

1993) (emphasis added). The Board, therefore, did not 

abuse its discretion in finding that Mr. White did not 

show good cause for the untimely filing of his petition for 

review. Accordingly, we must affirm the Board’s dismissal of his appeal. 

Finally, given that Mr. White did not send this court 

any petition for review until July 8, 2013, we lack jurisdiction either to review his appeal of the Board’s initial 

decision or to remand his case to the OPM, as we do not 

have the authority to waive a statutory deadline. See 

Pinat v. Office of Pers. Mgmt., 931 F.2d 1544, 1546 (Fed. 

Cir. 1991). 

CONCLUSION

For the foregoing reasons, we affirm the Board’s dismissal of Mr. White’s appeal of the Board’s final decision 

as untimely and we dismiss his motion for limited remand.

AFFIRMED

COSTS

Each party shall bear its own costs.