UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

REGINALD L. WILKERSON,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

CH-844E-20-0199-I-1

DATE: July 30, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Reginald L. Wilkerson, Fishers, Indiana, pro se.

Shaquita Stockes, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed the final decision of the Office of Personnel Management (OPM)

dismissing his application for a disability retirement annuity under the Federal

Employees’ Retirement System (FERS) as untimely filed. For the reasons set

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant filed an appeal of OPM’s reconsideration decision dismissing

his FERS disability retirement appeal as untimely filed, and the administrative

judge held a hearing. Initial Appeal File (IAF), Tabs 1, 13. The administrative

judge issued a May 19, 2020 initial decision affirming OPM’s decision. IAF,

Tab 14, Initial Decision (ID). The initial decision specifically stated that the

deadline to file a petition for review was June 23, 2020, and provided information

on how to file a petition for review. ID at 7-8. The appellant filed a petition for

review, with a postmark dated December 23, 2020, which is the filing date

acknowledged by the Board. Petition for Review (PFR) File, Tab 1 at 1; see PFR

File, Tab 2 at 1. 

The Acting Clerk of the Board notified the appellant that, because he filed

his petition for review after June 23, 2020, i.e., over 35 days following the

issuance of the May 19, 2020 initial decision, it was untimely filed. PFR File,

Tab 2 at 2. 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, and

set a deadline for the appellant to file such a motion. Id. 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

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

2
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.

Here, the administrative judge informed the appellant that the initial

decision would become final on June 23, 2020, unless a petition for review was

filed by that date. ID at 7. The appellant filed his petition for review on

December 23, 2020, six months late, and failed to respond to the Clerk’s order

instructing him to explain his untimeliness. See PFR File, Tab 1 at 1-2. 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); see 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

3
has not demonstrated good cause for the untimely filing). Because the appellant

failed to file the required motion, as was explained in the Acting Clerk’s

January 13, 2021 letter acknowledging his petition for review, we find that he has

failed to establish good cause for the waiver of the time limit. PFR File, Tab 2

at 1-2; 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).

Although the appellant failed to respond to 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, see PFR File, Tab 2, in his petition for

review filing, he appears to suggest that he did not receive the initial decision

until December 11, 2020, PFR File, Tab 1 at 2. The appellant states that he

contacted the OPM representative regarding the status of his appeal in May 2020

and was informed that a decision had been issued, but that the OPM

representative refused to provide him a copy of the decision at that time. Id. He

states that he reached out to OPM several additional times over the following

months and was told that he would be sent something in the mail by one official

and that his case was still being considered by a different official, and indicates

that OPM finally sent him a copy of the decision on December 11, 2020. Id. The

appellant also provides a photograph of an envelope reflecting a return address

from OPM and an illegible postmark stamp, which he appears to indicate

contained the copy of the initial decision he received on December 11, 2020. Id.

at 4.

Even if we were to consider the appellant’s argument as a claim that good

cause exists for his untimeliness because he did not receive the initial decision

from the Board and instead first received it in the first instance on December 11,

2020, from an OPM official, we conclude that this explanation is not reasonable

as it is contradicted by the Board’s records indicating that the initial decision was

electronically served on the appellant. The certificate of service for the initial

decision indicates that on May 19, 2020, the regional office served the initial

4
decision on the appellant electronically, since he had registered as an e-filer.

IAF, Tab 15; see IAF, Tab 10 at 2; 5 C.F.R. § 1201.14(m)(2) (2020) (explaining

that Board documents served electronically on registered e-filers are deemed

received on the date of electronic submission). Registration as an e-filer

constitutes consent to accept electronic service of pleadings filed by other

registered e-filers and documents issued by the Board. 5 C.F.R. § 1201.14(e)

(2020). Additionally, as an e-filer, the appellant was responsible for ensuring

that filters did not block the Board’s emails and for monitoring case activity in

the Repository to ensure that he had received all case-related documents.

5 C.F.R. § 1201.14(j)(2)-(3) (2020). There is also no indication that the appellant

attempted to change his method of service to regular mail or to withdraw as an

e-filer at any point. See 5 C.F.R. § 1201.14(e)(4), (6) (2020) (permitting

withdrawal of registration as an e-filer and outlining the process for changing the

email address of record). Consequently, the record does not support the

appellant’s suggestion that he did not receive the initial decision from the Board,

and instead received it for the first time from an OPM official on

December 11, 2020.2

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 initial decision remains the final decision of the

Board regarding the appeal challenging OPM’s decision dismissing his

application for a FERS disability retirement appeal as untimely filed.

2

 Additionally, even if we were to assume that the appellant first received a hard copy

of the initial decision from an OPM representative on December 11, 2020, we would

still conclude that he did not act diligently in filing his petition for review because he

acknowledges that he was told by the OPM official sometime in May 2020 that the

initial decision had already been issued, but nevertheless did not attempt to file a

petition for review or request an extension of time to do so until December 23, 2020.

See PFR File, Tab 1 at 2.

5
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). 

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: 

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
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,

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

7
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

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

8
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: 

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. 

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
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.

10