Christopher Pritchard v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CHRISTOPHER PRITCHARD,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2021-1261
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-844E-20-0551-I-1.
______________________
Decided: July 8, 2022
______________________
CHRISTOPHER P RITCHARD, Jonesborough, TN, pro se.
K ATRINA L EDERER , Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by T RISTAN L. L EAVITT ,
K ATHERINE M ICHELLE SMITH .
______________________
Before REYNA, CHEN, and STARK, Circuit Judges.
P ER CURIAM .
Case: 21-1261 Document: 23 Page: 1 Filed: 07/08/2022

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PRITCHARD v. MSPB 2
Christopher Pritchard appeals a decision of the Merit
Systems Protection Board (Board) dismissing his appeal as
untimely filed. See Pritchard v. Off. of Pers. Mgmt., No.
AT-844E-20-0551-I-1, 2020 MSPB LEXIS 3894 (M.S.P.B.
Sep. 25, 2020) (Board Decision). Because substantial evi-
dence supports the findings underlying the Board’s deci-
sion that Mr. Pritchard’s appeal was untimely, and good
cause has not been shown for the delay, we affirm.
BACKGROUND
In 2018, Mr. Pritchard, a Supervisory Gardener with
the Department of Veterans Affairs, submitted an applica-
tion for disability retirement. Board Decision, at *1. The
Office of Personnel Management (OPM) denied his appli-
cation because the medical evidence did not show that his
conditions were disabling. Id. at *1–2. Mr. Pritchard re-
quested reconsideration. Id. at *2. On April 10, 2020, OPM
issued a reconsideration decision sustaining its original de-
cision. Id. at *2.
According to a certified receipt, OPM’s reconsideration
decision was delivered to Mr. Pritchard’s address on
April 14, 2020. Id. at *5. The certified receipt was signed
with the initials “JM[]” (the last letter was unclear). Id.
at *5 & n.2. Mr. Pritchard filed an appeal of the reconsid-
eration decision to the Board, by mail postmarked May 22,
2020. Id. at *5; see 5 C.F.R. § 1201.4(l) (“The date of filing
by mail is determined by the postmark date[.]”). OPM
moved to dismiss the appeal as untimely. Board Decision,
at *3.
An appellant has 30 days to file an appeal with the
Board. 5 C.F.R. § 1201.22(b) (“[A]n appeal must be filed no
later than . . . 30 days after the date of the appellant’s re-
ceipt of the agency’s decision[.]”). At a hearing before an
administrative judge of the Board, Mr. Pritchard testified
that his brother was living with him around the time of re-
ceipt. Board Decision, at *5. Mr. Pritchard also testified
that he first saw the reconsideration decision when he
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PRITCHARD v. MSPB 3
returned home, but could not testify to an exact date. Id.
The administrative judge decided that this testimony sug-
gested Mr. Pritchard had received the decision on the same
day it was signed for at his home. Id. at *6. Having re-
ceived the decision on April 14, 2020, Mr. Pritchard was
required to file his appeal by no later than May 14, 2020.
Id. Therefore, Mr. Pritchard’s appeal was late by eight
days. Id. at *6.
The administrative judge next considered whether
there was good cause for the delay and found there was
none. Id. at *6–9. The administrative judge noted that
Mr. Pritchard was on notice as to the time limit for filing
and found no evidence of excusable neglect, contributing
circumstances beyond appellant’s control, or unavoidable
misfortune. Id. at *6. In particular, although
Mr. Pritchard agreed it was possible that his medical con-
ditions contributed to the delayed filing when directly
asked by the administrative judge, Mr. Pritchard stopped
short of asserting that his conditions did so contribute. Id.
at *6–8. The administrative judge generally found no ob-
jective evidence that Mr. Pritchard’s physical or mental
conditions interfered with his ability to timely file his ap-
peal. Id. at *9.
The administrative judge’s initial decision dismissing
the appeal as untimely became the final Board decision on
October 30, 2020. Id. at *10. Mr. Pritchard timely ap-
pealed to this court. We have jurisdiction pursuant to
5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
Our review of the Board’s decision is limited. We must
sustain a decision of the Board unless it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.” 5 U.S.C
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PRITCHARD v. MSPB 4
§ 7703(c); Van Wersh v. Dep’t of Health & Hum. Servs., 197
F.3d 1144, 1147 (Fed. Cir. 1999).
Mr. Pritchard argues that his appeal was timely filed
because he did not receive OPM’s reconsideration decision
until April 23, 2020, which would mean he had until May
23, 2020, to file his appeal. It is the appellant’s burden to
establish the timeliness of an appeal to the Board by a pre-
ponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B);
Ricci v. Merit Sys. Prot. Bd., 953 F.3d 753, 756 (Fed. Cir.
2020).
The Board relied on OPM’s copy of the certified receipt
to find that Mr. Pritchard received OPM’s reconsideration
decision on April 14, 2020. Id. at *6. Mr. Pritchard has not
pointed to any contrary evidence in the record showing that
April 23, 2020, was in fact the date he received the decision.
Nor have we found anything in the record. We have only
his bare contentions. Thus, the Board’s finding that
Mr. Pritchard received the reconsideration decision on
April 14, 2020, is supported by substantial evidence. The
Board did not err in dismissing Mr. Pritchard’s appeal as
untimely.1
CONCLUSION
For the foregoing reasons, we affirm the decision of the
Board.
AFFIRMED
COSTS
No costs.
1 Mr. Pritchard does not argue on appeal that there
was good cause for the untimeliness. Yet, we note that we
see nothing in the record showing that the Board erred in
finding a lack of good cause.
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