UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

BOBBY E. BIERLEY, SR.,

Appellant,

v.

DEPARTMENT OF ENERGY,

Agency.

DOCKET NUMBER

SF-0752-16-0773-I-1

DATE: March 24, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Bobby E. Bierley, Sr., Mead, Washington, pro se.

Sarah T. Hawkins, Portland, Oregon, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member2

FINAL ORDER

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

dismissed his appeal of a removal action as untimely filed without good cause 

shown. Generally, we grant petitions such as this one only in the following 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 Member Leavitt’s name is included in decisions on which the three-member Board 

completed the voting process prior to his March 1, 2023 departure.
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circumstances: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 In a memorandum dated April 29, 2016, the agency informed the appellant 

of its proposal to remove him from the position of Electrician with its Bonneville 

Power Administration, no less than 30 days from the date of his receipt of that 

proposal, based on the charges of drug use and failure to follow instructions. 

Initial Appeal File (IAF), Tab 5, Subtab 4i at 1-2. The appellant, through 

counsel, replied. IAF, Tab 4, Subtabs 4d-4g. In a memorandum dated August 11,

2016, the agency set forth its decision to remove him effective August 12, 2016,

and provided notice of his right to file a Board appeal within 30 calendar days 

after the receipt of the removal decision. IAF, Tab 1 at 7-8. 

¶3 On September 14, 2016, the appellant electronically filed an appeal with the 

Board’s Western Regional Office. IAF, Tab 1 at 1, Tab 6 at 2. He set forth

August 15, 2016, as the date of his receipt of the agency’s decision. IAF, Tab 1

at 3. He also requested a hearing. Id. at 2. Upon the regional office’s 

September 14, 2016 email request that the appellant provide copies of 
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attachments that were not submitted online regarding his appeal, the appellant 

provided a copy of the August 11, 2016 removal decision by facsimile on 

September 16, 2016. Id. at 6-14. 

¶4 The agency responded to the appeal, asserting that the appellant had 

received the removal decision by email on August 12, 2016, and that the appeal 

was untimely because it should have been filed no later than September 12, 2016.

IAF, Tab 4 at 10, Subtab 4b at 4. The agency provided a copy of an email dated 

August 12, 2016, from the appellant acknowledging receipt of the decision and 

forwarding it to his attorney of record. Id., Subtab 4b at 4.

¶5 In an order on timeliness, the administrative judge noted that the appellant’s 

appeal appeared to have been filed 2 days late. IAF, Tab 6 at 2. He further 

informed the appellant of his burden on timeliness and directed him to submit 

evidence and/or argument demonstrating that he timely filed his appeal or that 

there was good cause for the filing delay. Id. at 2-3. The appellant filed a 

document, which did not explain why his appeal was filed late. IAF, Tab 7. He 

provided instead a narrative regarding the removal, his work history, an Office of 

Workers’ Compensation Programs (OWCP) claim, and the penalty determination. 

Id. He submitted various medical records and statements bearing dates within the

range of either years or months prior to his removal. Id.

¶6 Without holding the requested hearing, the administrative judge issued an 

initial decision, finding that the appeal was untimely and that good cause for the 

filing delay had not been shown. IAF, Tab 9, Initial Decision (ID) at 1, 5. The 

administrative judge found that, notwithstanding the appellant’s allegation that he 

received the decision on August 15, 2016, the record reflects that he was in 

receipt of the decision notice on August 12, 2016, the date that he responded to 

the agency regarding the email. ID at 4. She noted that the decision informed 

him of the filing time limit but that the appellant provided no explanation for his 

untimely filing. ID at 4-5. Thus, she found that he had not identified any 

circumstances beyond his control that affected his ability to timely file his appeal,
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nor had he shown he exercised due diligence or ordinary prudence under the 

particular circumstances of the case. ID at 5.

¶7 The appellant has filed a timely petition for review, and the agency has filed 

an opposition to the petition. Petition for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 Generally, an appellant must file an appeal with the Board no later than 

30 calendar days after the effective date of the contested action or 30 calendar 

days after the date of the appellant’s receipt of the agency’s decision, whichever 

is later. 5 C.F.R. § 1201.22(b)(1). An appeal that is not filed within the 

applicable time limit will be dismissed as untimely unless the appellant shows 

good cause for the 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. 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 considers 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 h is

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

casualty or misfortune that similarly shows a causal relationship to his inability to 

timely file his appeal. 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 appellant has the 

burden of proof on the issue of timeliness, which he must establish by 

preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B).

¶9 On review, the appellant appears to challenge the administrative judge’s 

finding that the filing date for his appeal was September 12, 2016, based on his 

receipt of the notice of decision on August 12, 2016. PFR File, Tab 1 at 1; ID

at 4. For the first time on review, the appellant asserts the following: “The Email 

dated Aug. 11 2016, I didn’t receive until 4 to 5 weeks later due to 2 factors.” 
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PFR File, Tab 1 at 1. Without specifically identifying the two factors, which 

allegedly precluded his receipt of the decision notice, he states that he was 

attacked and injured in his home by someone whom he thought was his friend. 

Id. He alleges that he sustained a life-threatening injury. Id. He submits, 

however, an incident report by the Spokane Police/Spokane County Sheriff, dated 

August 11, 2016, regarding a simple assault and an emergency room report signed 

on August 14, 2016. PFR File, Tab 1 at 4-5. Both documents predate the 

October 24, 2016 close of record on timeliness. IAF, Tab 6 at 4. He asserts that 

he lost access to both his home and his computer until October 25, 2016, when his 

lawyer went to his home and got his laptop. PFR File, Tab 1 at 1. The Board 

generally will not consider an argument raised for the first time on review absent 

a showing that it is based on new and material evidence not previously available 

despite the party’s due diligence. Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980). The appellant has not explained why he could not 

have raised these arguments in response to the administrative judge’s timeliness 

order, and we will not consider them for the first time on review. Furthermore, 

the argument of a delayed receipt of the decision notice is undercut by the 

appellant’s filing a copy of the August 11, 2016 decision notice with the regional 

office on September 16, 2016, IAF, Tab 1 at 7, and his acknowledgment on his 

appeal form of his receipt of the August 11, 2016 decision in August 2016, id.

at 3. The appellant has not refuted the email submitted by the agency showing 

that he received an electronic copy of the decision letter and forwarded it to his 

counsel. IAF, Tab 4, Subtab 4b at 4.

¶10 The appellant also asserts that he did not receive the Standard Form 50

documenting his removal until November 2016 and submits narratives regarding 

personal matters, a grievance, and an OWCP claim. PFR File, Tab 1 at 1-43. He 

offers no explanation, argument, or evidence as to how any of these matters 

relates to the issue of timeliness of his appeal. Id. Thus, he has provided no 

basis for disturbing the initial decision.
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¶11 Based on the foregoing analysis, we affirm the initial decision dismissing 

the appeal.

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. 

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). 

 

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. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
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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. ____ , 137 S. Ct. 1975 (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 
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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 

(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 
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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.4The 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 

 

4

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. 
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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:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board