Clarence Rivers v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
CLARENCE RIVERS,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1573
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-844E-23-0604-I-1.
______________________
Decided: November 7, 2025
______________________
CLARENCE RIVERS , Orange Park, FL, pro se.
CONSTANCE E. TRAVANTY, Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
JANE BOYLE, K ATHERINE M ICHELLE SMITH .
______________________
Before D YK , LINN , and H UGHES , Circuit Judges.
PER C URIAM.
Case: 25-1573 Document: 29 Page: 1 Filed: 11/07/2025

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RIVERS v. MSPB 2
Clarence Rivers appealed to the Merit Systems Protec-
tion Board (“Board”) from a reconsideration decision of the
Office of Personnel Management (“OPM”). The Board dis-
missed his appeal as untimely because Mr. Rivers filed his
appeal 11 days after the deadline, and the Board deter-
mined that there was no good cause for the late filing. We
affirm.
BACKGROUND
In April of 2022, Mr. Rivers applied for retirement from
his position as a Human Resources Specialist in the De-
partment of the Navy. Mr. Rivers also submitted an appli-
cation for disability retirement to the Office of Personnel
Management (“OPM”), which was denied in a January 25,
2023, initial decision. The initial decision stated that
Mr. Rivers did not establish he was disabled within the
meaning of the retirement law.
On reconsideration, OPM upheld the initial decision.
OPM informed Mr. Rivers of this decision in a June 22,
2023, letter. The letter also informed Mr. Rivers of his
right to appeal the decision to the Board and stated “[i]f
you wish to exercise this right, please note that an appeal
must be filed within 30 calendar days after the date of this
decision, or 30 calendar days after receipt of this decision,
whichever is later.” S. App’x 53.1 Mr. Rivers received
OPM’s letter on June 27, 2023, so his appeal was due on
July 27, 2023.
On August 7, 2023—11 days after the deadline—
Mr. Rivers appealed the OPM decision to the Board. On
August 23, 2023, OPM moved to dismiss the appeal as un-
timely filed. The Board’s regulations provide that an un-
timely appeal can be excused by a showing of good cause
1 “S. App’x” refers to the Supplemental Appendix
submitted by the Board. Dkt. No. 22.
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RIVERS v. MSPB 3
for the delay. 5 C.F.R. § 1201.22(c). The administrative
judge ordered Mr. Rivers to “file evidence and/or argument
showing that good cause exists for the delay in filing” by
September 5, 2023. S. App’x 37–38. Mr. Rivers did not
respond. On September 6, 2023, the administrative judge
dismissed the appeal as untimely. The deadline for
Mr. Rivers to seek review of this decision before the full
Board was October 11, 2023.
Mr. Rivers filed a petition for review of the administra-
tive judge’s decision to the full Board on November 21,
2023. Because this too was untimely filed (by 41 days),
Mr. Rivers filed a motion to waive or set aside the time
limit to file his petition for review. In these filings, Mr. Riv-
ers presented evidence and argument explaining why both
his initial appeal and petition for review were untimely
filed. Mr. Rivers also stated that he did not respond to the
administrative judge’s timeliness order because the order
was sent to the wrong address.
On February 20, 2025, the Board denied Mr. Rivers’s
petition for review and affirmed the initial decision without
reaching the question whether he showed good cause for
his untimely petition to the full Board. The Board con-
cluded that Mr. Rivers’s appeal of the OPM decision to the
Board was untimely filed and that his reasons for the late
filing did not establish good cause.
Mr. Rivers timely petitions for review of the Board’s de-
cision. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Whether the Board will waive its own time limit for fil-
ing an appeal is a matter committed to the Board’s discre-
tion, and “this court will not substitute its own judgment
for that of the Board.” Mendoza v. Merit Sys. Prot. Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992). “On appeal, we will dis-
turb the grant or denial of such a waiver only if it is
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RIVERS v. MSPB 4
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with the law.” Id.
Mr. Rivers does not deny that his appeal was filed after
the deadline, but he contends that the Board erred in re-
jecting his three reasons for the late filing. First, he argued
he did not have all of the medical records he needed to sub-
mit his appeal packet to the Board until after the deadline
to file his appeal. The Board determined that “the appel-
lant’s delay in filing the appeal to procure medical evidence
documentation does not warrant a waiver of the filing
deadline.” S. App’x 4. This was in line with previous Board
decisions that declined to waive time limits when an appel-
lant decided “to delay filing in hopes of procuring addi-
tional evidence.” Fitzhugh v. Off. of Pers. Mgmt., 54
M.S.P.R. 522, 524 (M.S.P.B. 1992); see also Ozier v. Merit
Sys. Prot. Bd., 400 F. App’x 560, 563 (Fed. Cir. 2010) (hold-
ing Board did not abuse its discretion in declining to waive
time limits because “delays caused by attempts to discover
a legal basis for an appeal or to find additional evidence do
not constitute good reason for waiving a filing deadline”).
The Board did not abuse its discretion in rejecting Mr. Riv-
ers’s medical-records arguments.
Second, Mr. Rivers contended he was unable to contact
the Board’s Regional Office for assistance in electronically
filing his appeal, resulting in delay. The Board did not
abuse its discretion in concluding that Mr. Rivers’s trou-
bles with electronic filing and interactions with MSPB rep-
resentatives did not impact his ability to file his appeal by
facsimile or mail.
Finally, Mr. Rivers stated he did not receive the admin-
istrative judge’s timeliness order because it was sent to the
wrong address. Even assuming Mr. Rivers did not receive
the administrative judge’s timeliness order, his substan-
tive rights were not impacted. The Board did not rely upon
Mr. Rivers’s failure to respond to the administrative
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RIVERS v. MSPB 5
judge’s timeliness order as a reason that he did not show
good cause. Rather, the Board considered and rejected
Mr. Rivers’s good-cause arguments on the merits.
We conclude that the Board did not err in determining
that Mr. Rivers’s appeal was untimely filed and that he did
not establish good cause for the delay. We have considered
Mr. Rivers’s remaining arguments and find them unper-
suasive.
AFFIRMED
COSTS
No costs.
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