Bradley D. Gard v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BRADLEY D. GARD,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-1711
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0845-18-0059-I-1.
______________________
Decided: January 23, 2025
______________________
BRADLEY D. G ARD, Columbia, KY, pro se.
T ATE N ATHAN WALKER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, T ARA K. HOGAN, P ATRICIA M. M C CARTHY .
______________________
Case: 24-1711 Document: 22 Page: 1 Filed: 01/23/2025

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GARD v. OPM 2
Before M OORE, Chief Judge, STOLL , Circuit Judge, and
G ILSTRAP , Chief District Judge.1
P ER CURIAM .
Bradley Gard appeals a decision of the Merit Systems
Protection Board (Board) denying his petition to waive re-
covery of an overpayment of his disability retirement ben-
efits. For the following reasons, we dismiss.
BACKGROUND
Mr. Gard is a former employee of the Department of
Veterans Affairs who applied for disability retirement ben-
efits under the Federal Employment Retirement System
(FERS). Appx. 2.2 When the Office of Personnel Manage-
ment (OPM) notified Mr. Gard his application was ap-
proved, OPM also informed Mr. Gard he must apply for
separate disability benefits through the Social Security Ad-
ministration (SSA). Id. OPM informed Mr. Gard that,
should the SSA approve his application for disability bene-
fits, his FERS benefits would need to be reduced accord-
ingly. Id.
The SSA approved Mr. Gard’s application for disability
benefits on July 1, 2012. Id. On November 10, 2014, OPM
notified Mr. Gard it was aware he was receiving Social Se-
curity benefits, his monthly FERS annuity would need to
be reduced, and he had been overpaid during the period of
overlap between the programs. Id. Mr. Gard requested
reconsideration, and OPM confirmed he had been overpaid
and was not entitled to a waiver. Id. at 3.
1 Honorable J. Rodney Gilstrap, Chief Judge, United
States District Court for the Eastern District of Texas, sit-
ting by designation.
2 “Appx.” refers to the appendix attached to Appel-
lee’s Informal Response Brief. See ECF 15.
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GARD v. OPM 3
Mr. Gard petitioned the Board for review of OPM’s de-
cision. Id. at 1. The Board affirmed OPM’s decision that
Mr. Gard was overpaid $27,469.00 and determined Mr.
Gard “failed to prove by substantial evidence that he is el-
igible for a waiver of collection of the overpayment.” Id. at
3, 5. The Board did, however, adjust the recovery schedule
for the overpayment due to Mr. Gard’s evident financial
hardship by decreasing Mr. Gard’s monthly payments. Id.
at 7. Mr. Gard filed a petition for review of the Board’s
decision, which the Board denied. Appx. 17.
Mr. Gard appeals. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
D ISCUSSION
We have jurisdiction to review final orders and deci-
sions from the Board under 5 U.S.C. § 7703(b)(1). We do
not, however, have jurisdiction to hear mixed cases with
merit-based claims along with claims for discrimination. 5
U.S.C. § 7703(b)(2); Perry v. Merit Sys. Prot. Bd., 582 U.S.
420, 431 (2017) (mixed cases shall be filed in district court).
Mr. Gard argues he brought a discrimination claim regard-
ing a handicapping condition in addition to his other merit-
based claims. Appx. 24–25. There is no evidence in the
record Mr. Gard brought any discrimination claims before
the Board. To the extent he is raising a separate claim of
discrimination for the first time on appeal, we decline to
consider issues not raised in the proceedings below. Gant
v. United States, 417 F.3d 1328, 1332 (Fed. Cir. 2005) (“Ar-
guments not made in the court or tribunal whose order is
under review are normally considered waived.”). Because
Mr. Gard’s appeal is not a mixed case, we have jurisdiction.
The scope of our review in an appeal from a decision of
the Board is limited. Generally, we must affirm the deci-
sion unless we find it to be “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law; (2) obtained without procedures required by law, rule,
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GARD v. OPM 4
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c).
On appeal, Mr. Gard argues the Board erred: (1) in de-
termining that he was overpaid, (2) by failing to determine
his debt should be forgiven, and (3) by failing to consider
adequately that he cannot pay. Appellant’s Informal Open-
ing Br. 2–3; Appx. 32–33. We do not reach the merits of
Mr. Gard’s arguments because his appeal is untimely. Un-
der 5 U.S.C. § 7703(b)(1), an appeal “shall be filed within
60 days after the Board issues notice of the final order or
decision of the Board.” The Board issued its final order on
February 5, 2024. Appx. 16. Mr. Gard’s appeal was there-
fore due April 5, 2024, but we did not receive his appeal
until April 15, 2024 – 10 days after the appeal deadline.
Appx. 31; see also F ED . R. APP . P. 26(a).
The timing requirement of 5 U.S.C. § 7703(b)(1), how-
ever, “is not jurisdictional,” and might be subject to equita-
ble tolling. Harrow v. Dep’t of Def., 601 U.S. 480, 482
(2024). It remains an open question after Harrow whether
the statute is eligible for equitable tolling. Id. at 489. Even
if equitable tolling did apply, Mr. Gard has not carried his
burden to establish eligibility for tolling of 5 U.S.C.
§ 7703(b)(1)’s timing requirement.
To establish equitable tolling, Mr. Gard “bears the bur-
den of establishing two elements: (1) that he has been pur-
suing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). Mr. Gard has not shown he has been
pursuing his rights diligently. Mr. Gard asserts he re-
ceived notice of the Board’s final order “late” because the
agency had the wrong address after he moved from Florida
to Kentucky. Appx. 31. He has not indicated when he re-
ceived notice, though his notice of appeal is dated April 3,
2024, which was before the deadline to file his appeal. Id.
And as the Board’s regulations make clear, “appellant is
responsible for keeping the agency informed of his or her
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GARD v. OPM 5
current home address for purposes of receiving the agency’s
decision.” 5 C.F.R. § 1201.22(b)(3). There is no evidence in
the record Mr. Gard updated his address with the Board,
nor do Mr. Gard’s filings allege he updated his address.
Mr. Gard provides no further explanation for his filing de-
lay in his reply brief. See Appellant’s Informal Reply Br. 1.
Mr. Gard therefore failed to show he acted diligently. Bald-
win Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 151 (1984)
(“One who fails to act diligently cannot invoke equitable
principles to excuse that lack of diligence.”). Because dili-
gence is required to establish equitable tolling, we hold Mr.
Gard has not carried his burden of establishing a basis for
equitable tolling, and therefore his appeal is untimely un-
der 5 U.S.C. § 7703(b)(1).
CONCLUSION
We have considered Mr. Gard’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
dismiss Mr. Gard’s appeal as untimely.
DISMISSED
COSTS
No costs.
Case: 24-1711 Document: 22 Page: 5 Filed: 01/23/2025

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