NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK ALEXANDER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2014-3215
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-14-0111-W-1.
______________________
Decided: April 20, 2015
______________________
MARK ALEXANDER, Mayfield Heights, OH, pro se.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, for re-
spondent. Also represented by BRYAN G. POLISUK.
______________________
2 ALEXANDER v. MSPB
Before O’MALLEY and WALLACH, Circuit Judges, and
GILSTRAP, District Judge. ∗
PER CURIAM.
Petitioner Mark Alexander appeals the August 4,
2014, decision of the Merit Systems Protection Board
(“Board”) dismissing his petition for review of his Individ-
ual Right Action (“IRA”) as untimely filed. See Alexander
v. Dep’t of Commerce, CH-12210-14-0111-W-1 (M.S.P.B
Aug. 4, 2014) (“Final Order”). For the reasons set forth
below, this court affirms.
BACKGROUND
Mr. Alexander was a former Field Representative
with the Census Bureau in Cleveland, Ohio. After he was
discharged in March 2012, he filed a complaint with the
Office of Special Counsel (“OSC”) alleging he was the
victim of personnel actions protected by the Whistleblow-
er Protection Act (“WPA”). 5 U.S.C. §§ 2301–2306 (2012).
The OSC notified Mr. Alexander in a letter dated April
30, 2014, that he could “file a request for corrective action
with the [Board] within [sixty-five] days after the date of
the letter,” Resp’t’s App. 52, setting a July 5, 2013 dead-
line to file an IRA with the Board. The letter also stated
if Mr. Alexander chose to file an appeal, he “should sub-
mit the enclosed letter to the Board as part of [the] ap-
peal.” Id.
Mr. Alexander alleges he filed a document with the
Board on May 3, 2013, under a Board docket number used
in a different Board decision involving Mr. Alexander.
The document stated “[h]ere is a letter from the OSC[,]”
but did not include an attachment. Id. at 4.
∗
Honorable Rodney Gilstrap, District Judge, Unit-
ed States District Court for the Eastern District of Texas,
sitting by designation.
ALEXANDER v. MSPB 3
Mr. Alexander filed his IRA on November 12, 2013,
well beyond the sixty-five day deadline, claiming the
agency “terminated his employment in retaliation for his
whistleblowing disclosures, as well as because of his race
and religion.” Id. at 2.
On February 3, 2014, the Administrative Judge
(“AJ”), in an Initial Decision, dismissed Mr. Alexander’s
IRA appeal for lack of jurisdiction and untimeliness. 1 Mr.
Alexander filed a petition for review of the Initial Deci-
sion. In its August 4, 2014, Final Order, the Board denied
Mr. Alexander’s petition for review and affirmed the
Initial Decision’s finding of untimeliness. Mr. Alexander
appeals the Board’s Final Order dismissing his IRA as
untimely filed. This court has jurisdiction pursuant to 28
U.S.C. § 1295(a)(9) (2012).
DISCUSSION
I. Standard of Review and Timeliness
Because the Board “has broad discretion to control its
own docket,” this court must “affirm the board’s decision
to dismiss an untimely filed petition for review unless the
decision is shown to have been ‘arbitrary, an abuse of
discretion, or otherwise not in accordance with law.’”
Olivares v. Merit Sys. Prot. Bd., 17 F.3d 386, 388 (Fed.
Cir. 1994) (citation omitted). This court is bound by the
Board’s factual findings “unless those findings are not
supported by substantial evidence.” Bolton v. Merit Sys.
Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 1998).
1 The Administrative Judge (“AJ”) dismissed the
appeal as untimely and for lack of jurisdiction. Resp’t’s
App. 15. In its Final Decision, the Board modified the
Initial Decision so that it could only address the untimeli-
ness issue thus making a jurisdictional determination
unnecessary. Id. at 3 n.3.
4 ALEXANDER v. MSPB
The WPA sets specific deadlines for filing and 5
C.F.R. § 1209.5 elaborates on those deadlines. It states
an action must be filed:
(1) No later than 65 days after the date of issu-
ance of the Special Counsel’s written notification
to the appellant that it was terminating its inves-
tigation of the appellant's allegations or, if the ap-
pellant shows that the Special Counsel’s
notification was received more than 5 days after
the date of issuance, within 60 days after the date
the appellant received the Special Counsel’s noti-
fication; or,
(2) At any time after the expiration of 120 days, if
the Special Counsel has not notified the appellant
that it will seek corrective action on the appel-
lant’s behalf within 120 days of the date of filing
of the request for corrective action.
5 C.F.R. § 1209.5; see also 5 U.S.C. § 1214(a)(3). Alt-
hough “the time limit for filing an IRA appeal cannot be
waived for good cause,” Pacilli v. Merit Sys. Prot. Bd., 404
F. App’x 466, 469 (Fed. Cir. 2010), the Board may inquire
as to whether equitable tolling may excuse an untimely
filed IRA appeal. Id; see also Resp’t’s Br. 2 (“The [AJ]
ordered Mr. Alexander to file evidence and argument
showing that he filed on time or that the circumstances
met the test of tolling.”). Mr. Alexander bears the burden
of demonstrating his IRA was timely filed by a prepon-
derance of the evidence. 5 C.F.R. § 1201.56(a)(2)(ii)
(2014).
II. The Board Did Not Err in Dismissing Mr. Alexander’s
IRA as Untimely Filed
The Board found Mr. Alexander did not meet his bur-
den to show his IRA was timely filed. This finding was
supported by substantial evidence. Mr. Alexander failed
to demonstrate he filed his IRA before the July 5, 2013,
ALEXANDER v. MSPB 5
deadline. Though Mr. Alexander claims he filed his
appeal on May 3, 2013, his filing on that date was under a
different docket number and was not accompanied by a
letter from the OSC. He provides no evidence showing
the filing related to the IRA in the instant case. Without
such information, the Board correctly found Mr. Alexan-
der did not meet his burden to show he timely filed his
appeal.
Mr. Alexander filed his appeal several months after
the statutory deadline and he provides no evidence that
this IRA was timely. Furthermore, he does not address
why his untimely filed IRA appeal should be subject to
the doctrine of equitable tolling. Mr. Alexander has failed
to show why the Board’s dismissal of his petition for
review as untimely was arbitrary, an abuse of discretion,
or otherwise not in accordance with the law.
CONCLUSION
For the reasons set forth above, and because we find
Mr. Alexander’s remaining arguments are without merit,
the Board’s decision is
AFFIRMED
COSTS
No costs.