UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT A. STUYCK,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

DC-0432-14-0559-I-1

DATE: November 7, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert A. Stuyck, Wichita Falls, Texas, pro se.

Mark Claytor, Fort Lee, Virginia, 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 initial decision, which 

dismissed as settled his appeal of his removal for alleged unsatisfactory 

performance. For the reasons set forth below, the appellant’s petition for review 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

is DISMISSED as untimely filed without good cause shown. 5 C.F.R. 

§ 1201.114(e), (g).

¶2 While the underlying appeal was pending, the parties executed a settlement 

agreement that, inter alia, provided for the dismissal of the appeal with prejudice. 

Initial Appeal File (IAF), Tab 27. The administrative judge found that the appeal 

was within the Board’s jurisdiction, the agreement was lawful on its face, it was 

freely reached, and the parties understood its terms. Initial Decision (ID) at 1-2. 

He entered the agreement into the Board’s record for enforcement purposes and 

dismissed the appeal. Id. Additionally, the initial decision informed the parties 

that it would become the Board’s final decision on August 10, 2015, unless a 

petition for review were filed by that date. ID at 2-3.

¶3 On August 30, 2016, the appellant filed a petition for review more than 

1 year out of time. Petition for Review (PFR) File, Tab 1. The Office of the 

Clerk of the Board informed the appellant that his petition for review appeared to 

be untimely filed and instructed him to submit evidence and argument showing 

that the petition for review was timely filed or that good cause existed for the 

delay in filing. PFR File, Tab 2. In response, the appellant submitted a Motion 

to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the 

Time Limit in which he asserted that his appeal was pending below for more than 

1 year, during which time he suffered from an allegedly hostile work environment 

that exacerbated his preexisting clinical depression; by the time the administrative 

judge turned his attention to the appellant’s appeal, the appellant “had very little 

faith in the government to include the MSPB,” and so he decided to settle his 

appeal. PFR File, Tab 3 at 4. The appellant further alleged that he had a strong 

likelihood of prevailing on the merits of his appeal and, if he had not had to wait 

so long for his appeal to be adjudicated, he would not have settled. Id. The 

agency has not responded to the petition for review.
3

¶4 The Board will waive the time limit for filing a petition for review only 

upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To 

establish good cause for the untimely filing of a petition for review, a party must 

show that he exercised due diligence or ordinary prudence under the particular 

circumstances of the case. See Alonzo v. Department of the Air Force, 4 M.S.P.R. 

180, 184 (1980). To consider whether a party 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 limits or of unavoidable casualty or 

misfortune which similarly shows a causal relationship to his inability to timely 

file his petition. 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).

¶5 The appellant asserts that he was frustrated by the length of time it took for 

the administrative judge to address his appeal and that this caused him to get 

discouraged and settle his case. PFR File, Tab 3 at 4. This is an argument 

concerning the merits of the petition for review and does not relate to the reason 

the appellant could not have filed his petition for review in a timely manner.

¶6 The appellant states that he suffers from depression and he may be 

attempting to claim that his medical condition prevented him from meeting the 

Board’s filing deadline. Id. at 1. To establish that an untimely filing was the 

result of an illness, the party must: (1) identify the time period during which he

suffered from the illness; (2) submit medical evidence showing that he suffered 

from the alleged illness during that time period; and (3) explain how the illness 

prevented him from timely filing his appeal or a request for an extension of time. 

Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). To establish good 

cause for waiving of the Board’s filing deadline based on physical or mental 

illness, there is no general incapacitation requirement; rather, the appellant is 
4

required to explain only why his alleged illness impaired his ability to meet the 

Board’s filing deadline or seek an extension of time. Lacy, 78 M.S.P.R. at 437 

n.*. 

¶7 The appellant has offered scant medical documentation in support of his 

apparent claim that a medical condition prevented him from meeting the filing 

deadline. With his petition for review, he submits a reasonable accommodation 

form completed by his physician in 2012 that notes that the appellant has a low 

threshold for frustration and difficulty maintaining focus. PFR File, Tab 3 

at 7-10. The physician further states that the appellant’s prognosis was excellent 

and that he expected the appellant to make a full recovery. Id. at 7. This 

evidence sheds no light on the appellant’s medical condition between 

approximately August 2015 and August 2016 and does not explain why the 

appellant could not timely file his petition for review. 

¶8 The Board has found good cause when an appellant submitted medical 

evidence providing a detailed explanation of how his illness affected his ability to 

meet the filing deadline, including evidence that he was unable to understand, 

remember, and carry out very short, simple instructions; understand, remember, 

and carry out detailed instructions; perform activities within a schedule; be 

punctual within customary tolerances; and ask simple questions or request 

assistance. See Smith v. Office of Personnel Management, 117 M.S.P.R. 527, ¶ 8 

(2012). In contrast, when an appellant established that he had torn cartilage in his 

shoulder but did not explain how that condition prevented him from timely filing 

his appeal, the Board did not find good cause. Pirkkala v. Department of Justice, 

123 M.S.P.R. 288, ¶ 20 (2016). The appellant’s evidence more closely resembles 

that in Pirkkala in that it does not relate the appellant’s medical conditions to his 

ability to file his petition for review on time.

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

the final decision of the Merit Systems Protection Board regarding the timeliness 
5

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

Board regarding the dismissal of the appeal as settled. 

NOTICE OF APPEAL RIGHTS2

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). 

 

2

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

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
7

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 
8

(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. 3 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. 

 

3

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

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