Federal Manager's Daily Report

The Merit Systems Protection Board recently rejected a Department of the Navy employee’s petition for review, filed nearly four years after the petition was due, challenging the dismissal of his individual right of action. After an administrative judge dismissed his petition as untimely filed, the employee appealed to the Board alleging that because he suffered from acute hypertension, which allegedly hampered his thought process, he was unable to file his petition for review on time. In support of his allegation, the employee submitted a letter from his physician indicating that he had been treated for hypertension, but the letter did not indicate whether the condition had any mental impact on the employee.

The Board rejected the employee’s claim, finding the letter insufficient to demonstrate the employee’s condition “was so severe that it prevented him from filing his petition for review for more than four years.” To establish good cause for a delay in filing a petition for review, an employee must demonstrate the exercise of due diligence or ordinary prudence under the particular circumstances of the case. In this case, the Board found neither, finding the employee’s “bare assertion that he has hypertension, and that this condition hampered his thought process” insufficient to demonstrate that he was incapacitated throughout the four-year delay in filing his petition for review.

The full text of the decision can be found here:

http://www.mspb.gov/decisions/2004/lundy_sf990063w1.html