UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GARRY GASTON,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DC-3330-18-0052-I-1

DATE: July 12, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Garry Gaston, Arlington, Virginia, pro se.

Jessica A. Neff, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed his Veterans Employment Opportunities Act of 1998 (VEOA) appeal 

for lack of jurisdiction. For the reasons set forth below, the appellant’s petition 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

§ 1201.114(e), (g). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant delivered his petition for review to a commercial delivery 

service on January 10, 2018, and it was received by the Board on January 11, 

2018. Petition for Review (PFR) File, Tab 1 at 1, 13; see 5 C.F.R. § 1201.4(l) 

(providing that the date of filing by commercial delivery is the date the document 

was delivered to the commercial delivery service). Included with his petition for 

review, the appellant attached a one-page printout of a partially completed 

request for an extension of time to file a petition for review. Id. at 2. In the 

extension request, the appellant stated that he was registered as an e-filer, but that 

an email notification announcing that the initial decision was issued was the only 

notification he received and that he did not receive notifications for any of the 

other orders issued below. Id. at 2-3. The appellant also stated that on 

December 24, 2017, he requested to extend the time to file his petition for review 

until January 10, 2018, and that a decision on the extension request “is still 

pending at MSPB.” Id. at 3. 

¶3 In a January 12, 2018 acknowledgement letter, the Office of the Clerk of the 

Board notified the appellant that his petition for review was untimely filed and 

instructed him to file a motion requesting that the Board accept his petition as 

timely, or as untimely filed with good cause for the delay. PFR File, Tab 2 at 2. 

The letter noted that prior to the appellant’s January 10, 2018 filing, the Board 

did not receive a request for an extension of time to file a petition for review from 

him, and further, that the Board’s e-Appeal Online logs showed that, although the 

appellant started a pleading in e-Appeal Online on December 24, 2017, the 

pleading was never actually submitted. Id. Consequently, the letter instructed 

the appellant to provide additional explanation for his untimeliness and attached a 

copy of a motion to accept a filing as timely or to waive the time limits for him to 
3

complete. Id. at 1-2, 7-8. In the agency’s response to the petition for review, it 

requested that the Board deny the petition as untimely filed without good cause

shown for the delay. PFR File, Tab 3 at 4-5. The appellant has not filed a reply 

to the agency’s response and has not filed a motion to accept his untimely petition 

for review or to waive the time limits. 

¶4 The Board’s regulations provide that a petition for review must be filed 

within 35 days after the date of issuance of the initial decision or, if the party 

shows he received the initial decision more than 5 days after it was issued, within 

30 days of his receipt of the decision. 5 C.F.R. § 1201.114(e). The Board will 

waive the filing deadline for a petition for review only upon a showing of good

cause for the untimely filing. Palermo v. Department of the Navy, 120 M.S.P.R. 

694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who submits an untimely 

petition for review has the burden of establishing good cause for the untimely 

filing by showing that he exercised due diligence or ordinary prudence under the 

particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To 

determine whether a party has shown good cause, the Board will consider the 

length of the delay, the reasonableness of his excuse and the party’s 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 

that similarly shows a causal relationship to his inability to timely file his 

petition. Id.

¶5 Because the December 25, 2017 finality date of the initial decision was a 

Federal holiday, the appellant’s petition for review would have been due on the 

following day, December 26, 2017. 5 C.F.R. § 1201.23; see Initial Appeal File, 

Tab 8, Initial Decision at 5. Therefore, the appellant’s January 10, 2018 petition

for review was filed 15 days after the filing deadline. The Board has regularly 

held that a 15-day delay is not minimal. See Wright v. Department of the 

Treasury, 113 M.S.P.R. 124, ¶ 8 (2010) (concluding that an 11-day delay is not 
4

minimal); Scott v. Social Security Administration, 110 M.S.P.R. 92, ¶¶ 8, 10 

(2008) (finding no good cause for an unexplained 11-day delay); Allen v. Office 

of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse 

a pro se appellant’s unexplained 14-day delay in filing a petition for review); 

Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 7 (2003) (noting 

that a 13-day delay in filing is not minimal). Additionally, despite being afforded 

the opportunity to do so, the appellant has not offered any explanation for his 

delay in filing. 

¶6 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 appellant’s request for corrective action under VEOA.

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.

 

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.
5

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: 

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 
6

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 

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: 
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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

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). 

 

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. 
8

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. 

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