UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHNNIE VANCE LASSITER, JR.,

Appellant,

v.

DEPARTMENT OF DEFENSE,

Agency.

DOCKET NUMBER

PH-0752-22-0291-I-1

DATE: May 7, 2024

THIS ORDER IS NONPRECEDENTIAL1

Randolph Elliott, Camp Hill, Pennsylvania, for the appellant.

Owen Hoover, Esquire, New Cumberland, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal as untimely filed by 3 days without good cause

shown. For the reasons set forth herein, we GRANT the appellant’s petition for

review, VACATE the initial decision, and REMAND the matter to the New York

Field Office for a hearing on the timeliness issue.

1

 A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
ANALYSIS

The appellant argues that, because he had recently moved to a new address,

he did not receive the agency’s decision, which effected his removal on June 26,

2022, until July 5, 2022. Petition for Review (PFR) File, Tab 1 at 3-4; Initial

Appeal File (IAF), Tab 6 at 13-16. He asserts that the agency was aware of his

new address and had “corresponded with [him] multiple times this calendar year

[at] this new address.”2 PFR File, Tab 1 at 5.

If an appellant can establish a factual dispute as to whether he timely filed

his appeal and he requested a hearing, he is entitled to a timeliness hearing.

Nelson v. U.S. Postal Service, 88 M.S.P.R. 331, ¶ 5 (2001). Here, the appellant

requested a hearing on the matter. IAF, Tab 1 at 2. Additionally, the appellant’s

representative submitted, among other things, a statement made under penalty of

perjury asserting that the appellant had moved to a new address and, as a result,

had not received the agency’s decision letter until July 5, 2022, when his

representative emailed it to him. IAF, Tab 4 at 3. Given the circumstances, we

find that the appellant is entitled to a hearing on the timeliness issue.

2

 The appellant provides additional documents with his petition for review, to include a

letter regarding where he has lived and various property lease documents. PFR File,

Tab 1 at 9-59. The Board generally will not consider evidence submitted for the first

time with the petition for review absent a showing that it was unavailable before the

record closed despite the party’s due diligence. See Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115(d). In any event, these documents are

not material to the outcome here. See Russo v. Veterans Administration, 3 M.S.P.R.

345, 349 (1980) (stating that the Board will not grant a petition for review based on new

evidence absent a showing that it is of sufficient weight to warrant an outcome different

from that of the initial decision).

2
ORDER

For the reasons discussed above, we remand this case to the field office for

further adjudication in accordance with this Remand Order. 

 

 

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

3