UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ADAM C. POWELL,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

CH-0714-18-0579-C-1

DATE: September 30, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Adam C. Powell, Marion, Illinois, pro se.

Grant T. Swinger, Hines, Illinois, for the agency.

Michael M. McFatridge, Esquire, Danville, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the compliance initial 

decision, which denied his petition to enforce a settlement agreement he entered 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

into with the agency. 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). 

BACKGROUND

¶2 The parties entered into an agreement settling the appellant’s appeal of his 

removal on December 21, 2019. Powell v. Department of Veterans Affairs, 

MSPB Docket No. CH-0714-18-0579-I-1, Initial Appeal File (IAF), Tab 13 at 

5-7. The administrative judge entered the settlement agreement into the record 

and issued an initial decision dismissing the appeal as settled on January 28, 

2019. IAF, Tab 14, Initial Decision at 1-3. The appellant subsequently filed a 

petition for enforcement alleging that the agency breached a number of terms of 

the agreement, and on April 16, 2019, the administrative judge issued a

compliance initial decision denying the appellant’s petition for enforcement, 

concluding that the agency established that it was in compliance with the terms of 

the agreement and the appellant failed to present any evidence that his agreement 

to settle the appeal was the product of misinformation. Compliance File , Tab 9, 

Compliance Initial Decision (CID) at 1-5. The compliance initial decision 

informed the appellant that the decision would become final on May 21, 2019, 

unless he filed a petition for review by that date. CID at 5.

¶3 The appellant filed a petition for review over 2 years later, on February 14, 

2022.2 Petition for Review (PFR) File, Tab 1. In his petition for review, he 

challenges the merits of the underlying removal action, noting that “several cases 

that pertain [to 38 U.S.C. § 714] have been overturned.” Id. at 3, 5. On 

February 16, 2022, the Office of the Clerk of the Board notified the appellant 

 

2

The appellant is a registered e-filer. IAF, Tab 1 at 2. Registration as an e-filer 

constitutes consent to accept electronic service of documents issued by the Board. 

5 C.F.R. § 1201.14(e).
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that, because he filed his petition for review more than 35 days following the 

issuance of the April 16, 2019 compliance initial decision, it was untimely. PFR 

File, Tab 2 at 1. The letter explained to the appellant that the Board’s regulations 

require a petition for review that appears untimely to be accompanied by a motion 

to accept the filing as timely and/or to waive the time limit for good cause, set a 

deadline for the appellant to file such a motion, and provided a sample motion. 

Id. at 1-3, 6-8. The appellant did not file the required motion concerning the 

timeliness of his petition for review. The agency did not file a response to the 

appellant’s petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 Generally, a petition for review must be filed within 35 days after the date 

of issuance of the initial decision or, if the petitioner shows that he received the 

initial decision more than 5 days after the date of issuance, within 30 days after 

the date he received the initial decision. 5 C.F.R. § 1201.114(e). The Board may 

waive the time limit for filing a petition for review upon a showing of good cause 

for the untimely filing. 5 C.F.R. § 1201.114(g). To establish good cause, the 

appellant must show that he exercised due diligence or ordinary prudence under 

the particular circumstances of the case. Palermo v. Department of the Navy, 

120 M.S.P.R. 694, ¶ 4 (2014). To determine whether an appellant has shown 

good cause, 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 limit or of unavoidable 

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

to timely file his petition. Id.

¶5 Here, the administrative judge informed the appellant that the compliance

initial decision would become final on May 21, 2019, unless a petition for review 

was filed by that date. CID at 5. The appellant filed his petition for review on 
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February 14, 2022, more than 2 years and 8 months late, and failed to respond to 

the letter from the Office of the Clerk of the Board instructing him to explain his 

untimeliness. PFR File, Tab 1 at 1, Tab 2. An appellant who files a petition for 

review late but does not file the required motion concerning the timeliness of his 

petition for review has failed to show the due diligence and ordinary prudence 

necessary for the Board to find good cause for his delay in filing. Galleno v. 

Office of Personnel Management, 63 M.S.P.R. 440, 442 (1994) (finding that an 

appellant who filed her petition for review 4 months late, and failed to file the 

required motion on timeliness, failed to show good cause for waiver of the filing 

deadline), aff’d, 48 F.3d 1236 (Fed. Cir. 1995) (Table); Goldberg v. Department 

of Defense, 39 M.S.P.R. 515, 518 (1989) (stating that in the absence of good 

cause shown, the Board will not waive its timeliness requirements even if the 

delay is minimal); Mejia v. Office of Personnel Management, 38 M.S.P.R. 472, 

473 (1988) (finding that, where the appellant failed to respond to the Clerk ’s 

notice concerning the timeliness of his petition for review and his untimely filing 

did not include a motion for waiver of the time limit or an affidavit or statement 

to establish good cause, the appellant had not demonstrated good cause for the 

untimely filing). Because the appellant failed to file the required motion, as was 

explained in the February 16, 2022 letter acknowledging his petition for review, 

we find that he has failed to establish good cause for the waiver of the time limit. 

Galleno, 63 M.S.P.R. at 442; Goldberg, 39 M.S.P.R. at 518; Mejia, 38 M.S.P.R. 

at 473; 5 C.F.R. § 1201.114(e).

¶6 Although he failed to respond to the Office of the Clerk of the Board’s

notice instructing him to demonstrate that his petition for review was timely filed 

or that good cause existed for the late filing, PFR File, Tab 2, the appellant 

appears to suggest in his petition for review that recent changes to the law have 

called into question the validity of the removal action underlying his original 

Board appeal, PFR File, Tab 1 at 3, 5. To the extent that the appellant is 
5

attempting to challenge the validity of the agreement settling his Board appeal, he 

may file a separate petition for review of the initial decision issued in Powell v. 

Department of Veterans Affairs, MSPB Docket No. CH-0714-18-0579-I-1. We 

note, however, that such a petition for review would likely be untimely and 

require explanation for the delay in filing.

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

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

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

decision of the Board regarding the compliance 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 

 

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.
6

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). 

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 
7

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 

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 
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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 

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.4 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: 

 

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. 
9

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. 

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