       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 DONALD SPARKS,
                    Petitioner

                           v.

     OFFICE OF PERSONNEL MANAGEMENT,
                   Respondent
             ______________________

                      2016-2340
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DA-0831-16-0264-I-1.
                ______________________

              Decided: February 10, 2017
               ______________________

   DONALD SPARKS, Temple, TX, pro se.

   KENNETH SAMUEL KESSLER, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
SCOTT D. AUSTIN.
                 ______________________

     Before LOURIE, HUGHES, and STOLL, Circuit Judges.
2                                            SPARKS   v. OPM



PER CURIAM.
    Donald Sparks (“Sparks”) appeals from the decision of
the Merit Systems Protection Board (“MSPB” or “the
Board”) affirming the Office of Personnel Management’s
(“OPM”) dismissal of his request for reconsideration of
OPM’s denial of disability retirement benefits as untime-
ly. Sparks v. Office of Pers. Mgmt., No. DA-0831-16-0264-
I-1, 2016 WL 3522930 (M.S.P.B. June 20, 2016) (“Deci-
sion”). Because the Board did not err in affirming OPM’s
dismissal, we affirm.
                      BACKGROUND
    Sparks was employed by the Department of Veterans
Affairs (“VA”) as a housekeeping aid from 2007–2013. On
December 6, 2012, Sparks submitted an application for
immediate retirement pursuant to the Federal Employees
Retirement System, indicating that he had become disa-
bled on October 24, 2012. On his statement of disability
form, he indicated that he suffered from “veteran service
connected disability mental disorder affecting [his ability
to have] gainful employment” and that his symptoms
included “insomnia, nightmares, . . . anxiety, sweating,
depression[,] nausea[,] back ache,” and “ankle and leg
pain” from an alleged job-related injury. Resp’t’s Informal
Br. 9. Sparks described his disability as “Post-Traumatic
Stress Disorder.” Id.
     On February 11, 2014, OPM issued an initial decision
denying Sparks’s application for disability retirement. In
its decision letter, OPM informed Sparks that his applica-
tion was denied because, inter alia: he “did not prove that
[he had] a medical condition/s which resulted in a service
deficiency in performance, conduct, or attendance . . . for
at least one year”; none of his doctors had actually rec-
ommended disability retirement; and he did not request
any formal accommodations, but instead resigned, mak-
ing it “inconclusive whether or not [the agency] could have
accommodated [him].” Resp’t’s App. (“R.A.”) 31–34. OPM
SPARKS   v. OPM                                            3



also informed Sparks that he could submit a request for
reconsideration of its decision by providing additional
medical documentation, and that any such request must
be “received by OPM within 30 days of the date of [the]
letter.” R.A. 35 (emphasis in original). The letter empha-
sized that “[i]f your request for reconsideration is received
by OPM after the 30-day time limit, we must dismiss your
request as not timely filed.” Id. Thus, to be timely,
Sparks’s request for reconsideration was due no later
than March 13, 2014.
    On January 9, 2015, Sparks wrote OPM, stating, “I
humbly request reconsideration of my disability retire-
ment” and included two reports—from a doctor and an
attorney—in support of his request. R.A. 39. On Febru-
ary 10, 2015 and February 15, 2015, Sparks supplement-
ed his request for reconsideration with additional letters
and documentation. R.A. 40–41.
    On March 9, 2015, OPM informed Sparks that his
January 9, 2015 request for reconsideration (received by
OPM on January 15, 2015) was untimely because it was
received well beyond the 30-day time limit specified in
their February 11, 2014 letter. R.A. 42. OPM advised
Sparks that he may, within 30 days of the March 9th
letter, request a waiver of untimeliness and informed him
of the regulatory criteria for doing so—namely, that he
must show that he was either “not notified of the time
limit and was not aware of it, or that [he] was prevented
by circumstances beyond [his] control from making a
timely request within the time limit.” Id. (citing 5 C.F.R.
§ 831.109).
    On March 28, 2015, Sparks sent additional medical
documentation and information to OPM, requesting
“reconsideration for [his] retirement,” including a state-
ment from one of his treating physicians indicating that
he had treated Sparks from May 28, 2014 through 2015
4                                             SPARKS   v. OPM



and opining that Sparks was “Permanent[ly] Disabled.”
R.A. 44.
     On April 22, 2015, OPM treated Sparks’s March 28,
2015 submission as a request for a waiver of untimeliness
and denied the request. OPM explained that Sparks had
failed to satisfy the regulatory waiver criteria. R.A. 45–
46. OPM stated:
    We reviewed all the information submitted. How-
    ever, the medical records and the additional pa-
    perwork provided did not prove that your
    reconsideration request could not have been filed
    timely. . . . Therefore, since you have not present-
    ed sufficient evidence to show that you were una-
    ble to file a request for reconsideration within the
    time limit provided by regulation, your reconsid-
    eration request is being dismissed as untimely
    filed.
Id. (citing 5 C.F.R. § 831.109).
     On April 26, 2015, Sparks sought to appeal OPM’s de-
cision to the MSPB, but misdirected his materials to
OPM. His materials included new evidence from a VA
award notice indicating that Sparks was entitled to
“individual unemployability” because he “is unable to
secure or follow a substantially gainful occupation as a
result of service connected disabilities.” R.A. 48–50.
    On July 30, 2015, Sparks sent another letter to OPM
entitled “Retirement Annuity appeal,” in which he again
enclosed a copy of the July 16, 2015 VA award notice to
show that he was “100% total and permanent[ly] disabled
to work.” Id. He also stated: “I truly hope this record can
be a part of my appeal for annuity retirement.” Id.
    On August 27, 2015, Sparks sent a letter to the MSPB
entitled “Retirement Appeal Claimant work status,” to
which he included a copy of the VA’s July 16, 2015 deci-
SPARKS   v. OPM                                            5



sion letter and requested that the MSPB “please submit
this record with my appeal for annuity retirement.” Id.
     On March 11, 2016 and April 6, 2016, an administra-
tive judge (“AJ”) of the Board ordered Sparks to show
cause why his MSPB appeal, which was filed more than
90 days late, should not be dismissed as untimely. R.A.
68–62, 80–81. After a response from Sparks, the AJ
issued an order on May 3, 2016, indicating that, although
Sparks’s appeal was untimely, “good cause” existed for the
untimeliness because “it appears that [Sparks] erroneous-
ly filed a second request for reconsideration with OPM,
within the time period for filing a Board appeal.” R.A. 86.
     On June 20, 2016, the AJ issued an initial decision on
the merits of Sparks’s appeal. See Decision, 2016 WL
3522930. In that decision, the AJ affirmed OPM’s dismis-
sal of Sparks’s request for reconsideration as untimely.
Id. at *2. The AJ determined that Sparks failed to meet
his burden of proving that “he was prevented by circum-
stances beyond his control from timely requesting recon-
sideration.” Id. Specifically, the AJ found that Sparks
failed to present evidence specific to the relevant time
period—between March 2014 (when the request was due)
and January 2015 (when Sparks filed the request)—to
prove that his medical conditions and/or medications
prevented him from timely filing his request. Id. at *6.
The AJ concluded that “[t]he fact that he suffers from
various medical issues, without more, is not sufficient to
establish that he was prevented from timely requesting
reconsideration.” Id. at *6–7.
     Sparks filed an appeal to this court before the AJ’s in-
itial decision could become the final decision of the Board.
This court has held that, “when a petitioner files a peti-
tion for review with this court before an AJ’s initial deci-
sion becomes final, the petitioner’s appeal ripens once
that initial decision becomes the final decision of the
MSPB.” Jones v. Dep’t of Health & Human Servs., 834
6                                           SPARKS   v. OPM



F.3d 1361, 1365 (Fed. Cir. 2016) (citations omitted).
Because Sparks did not file a petition for review by the
full Board, the AJ’s initial decision became the final
decision of the Board on July 25, 2016. See Decision, 2016
WL 3522930, slip op. at *7. Therefore, this case is now
ripe for review and we have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
                       DISCUSSION
     The scope of our review in an appeal from a Board de-
cision is limited. We must affirm the Board’s decision
unless it was: “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Briggs
v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003). “Substantial evidence” is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Dickey v. Office of Pers. Mgmt., 419 F.3d
1336, 1339 (Fed. Cir. 2005) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
    On appeal, Sparks’s arguments are essentially di-
rected toward the merits of OPM’s initial decision, with-
out addressing the fact that he untimely filed his request
for reconsideration of that decision. As he did during the
OPM proceedings and the MSPB appeal, Sparks again
points to the VA determination that he qualified for a
“100% unemployability” status on January 13, 2013 and
that he suffers from “severe post traumatic stress disor-
der.” Pet’r’s Informal Br. 1. Thus, Sparks’s argument
appears to be that the medical condition(s) which prompt-
ed his initial application for disability retirement also
prevented him from making a timely request for reconsid-
eration of OPM’s decision denying that application.
     The government responds that: (1) the Board did not
fail to take into account any facts; (2) the Board applied
SPARKS   v. OPM                                          7



the correct law—namely, that a waiver of OPM’s 30-day
deadline could be granted only when an individual shows
that “he or she was not notified of the time limit and was
not otherwise aware of it, or that he or she was prevented
by circumstances beyond his or her control from making
the request within the time limit,” 5 C.F.R.
§ 841.306(d)(2); (3) the Board correctly applied the law to
the facts of this case when concluding that, because
Sparks failed to submit evidence specific to the relevant
time period—between March 13, 2014, on which the 30-
day deadline expired, and January 9, 2015, on which
Sparks filed his untimely request for reconsideration—he
did not meet his burden of proving by a preponderance of
the evidence that he was prevented by circumstances
beyond his control from making a timely request; and
(4) Sparks has not presented any evidence undermining
the Board’s findings. Resp’t’s Informal Br. 19–25.
     We agree with the government that the Board applied
the correct law and that substantial evidence supports the
Board’s determination that Sparks failed to establish by a
preponderance of the evidence that he was prevented by
circumstances beyond his control from making a timely
request for reconsideration of OPM’s decision. Decision,
2016 WL 3522930, slip op. at *7. Specifically, the Board
correctly found that: (1) record evidence indicates that
Sparks’s medical issues did not “in and of themselves
prevent him from handling his affairs,” and (2) Sparks
failed to present evidence specific to the relevant time
period to prove that his medical problems “actually pre-
vented him” from making a timely request. Id.
    For example, the Board noted that in 2010–2011,
when Sparks claimed that his symptoms were the worst,
he undertook activities indicating that he was “at
times . . . able to manage his affairs, notwithstanding his
medical issues.” Id. at *5. Specifically, the Board noted
that in 2010, Sparks entered into a settlement agreement
regarding an Equal Employment Opportunity (“EEO”)
8                                              SPARKS   v. OPM



complaint (May 2010), filed a claim of breach regarding
that agreement (August 2010), and agreed to further
mediation of the complaint (September 2010). Id. at *7.
Even when Sparks was experiencing a worsening of his
symptoms in September 2011, the Board observed, his
physician determined that he was “nonetheless capable of
managing his financial affairs” and did not “display gross
impairment in thought processes or communication or
intermittent inability to perform activities of daily living.”
Id. at 5–6 (internal quotation marks omitted).
     The Board noted additional examples from 2012 indi-
cating that he was at times capable of managing his
affairs. In April 2012, he requested information regard-
ing filing for disability retirement. Id. at *6. In June
2012, he filed a Notice of Disagreement in response to a
decision from the VA on a claim he had filed. Id. In
September 2012, he filed another EEO complaint and
participated in an investigation of that complaint. Id. In
December 2012, he completed his application for disabil-
ity retirement. Id. In August 2012, the VA certified that
Sparks was “job ready” and “likely to succeed in perform-
ing the duties” of a position for which he had applied. Id.
Based on the foregoing, the Board found that Sparks’s
medical problems did not “in and of themselves prevent
him from handling his affairs.” Id. at *7. That factual
finding was supported by substantial evidence.
     Second, the Board identified the relevant time period
for the untimeliness issue as between March 2014 (when
the 30-day deadline expired) and January 2015 (when
Sparks filed his untimely request for consideration). Id.
at *6. Because Sparks presented no evidence specific to
that time period that would prove that his medical condi-
tions and/or medications prevented him from making a
timely request, the Board concluded that Sparks had not
met his burden of proving by a preponderance of the
evidence that circumstances beyond his control “actually
prevented him from doing so.” Id. at *7. That conclusion
SPARKS   v. OPM                                          9



is in accordance with law and supported by substantial
evidence.
     We also find no abuse of discretion or error of law in
the Board’s decision. Sparks does not identify any evi-
dence that the Board overlooked or that which would
contradict the Board’s conclusions. Rather, the record in
this case supports (1) the Board’s findings that Sparks
was, at least at times, able to manage his affairs and that
he failed to provide evidence specific to the relevant time
period to show that he was unable to manage his affairs
during that time, and (2) thus, its conclusion that Sparks
failed to meet his burden of proving the regulatory waiver
criteria by a preponderance of the evidence. 5 C.F.R.
§ 841.306(d)(2).
                       CONCLUSION
    We have considered Sparks’s remaining arguments,
but find them unpersuasive. For the foregoing reasons,
the decision of the Board is affirmed.
                      AFFIRMED
                          COSTS
   No costs.
