UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT G. HULST,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

SF-0752-17-0215-I-1

DATE: January 24, 2023

THIS ORDER IS NONPRECEDENTIAL1

John Rodriguez, San Diego, California, for the appellant.

Justin Strong, Los Angeles Air Force Base, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

REMAND ORDER

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

dismissed his appeal as untimely filed. For the reasons discussed below, we 

GRANT the appellant’s petition for review and REMAND the case to the Western 

Regional Office for further adjudication in accordance with this Remand Order. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
2

BACKGROUND

¶2 The appellant has been a GS-9 Machinist with the Department of the Air 

Force since 2016. Initial Appeal File (IAF), Tab 1 at 7. On June 22, 2016, the 

appellant received a notice of proposed removal for falsifying questionnaire 

responses during the hiring process, which was later amended on August 17,

2016. Id. at 7, 9. On October 17, 2016, the appellant received notice of the 

agency’s decision to remove him from the position, with an effective date of 

October 18, 2016. Id. at 11. This notice included the appellant’s appeal rights 

and deadline for filing such an appeal to the Board. Id. The appellant’s 

representative filed an appeal with the Board on January 19, 2017. Id. at 18.

¶3 The administrative judge advised the appellant that appeals not filed within 

the time period required by the Board’s regulations may be dismissed as untimely 

without addressing the underlying merits of the case. IAF, Tab 2 at 2. The 

administrative judge indicated that the filing period began on October 18, 2016,

but that the appeal was filed by regular mail on January 19, 2017, well after the 

30-day filing deadline. Id. The administrative judge ordered the appellant to file 

evidence and/or argument that the appeal was filed on time or that good cause 

exists for the delay in filing. Id. at 3. 

¶4 The appellant responded and indicated that his union representative sent the 

appeal to the Board via certified mail on November 8 or 9, 2016, but that the 

receipt had been misplaced. IAF, Tab 4 at 1. He further asserted that, upon 

calling the Board and discovering it had not received the appeal, the union 

representative re-filed the appeal on January 19, 2017. Id. The appellant also 

provided certified mail receipts dated November 8, 2016, to demonstrate that 

copies of the appeal were mailed to the agency, as it requested, and to the 

appellant. Id. at 3. The agency filed a motion and urged that the appeal be 

dismissed as untimely. IAF, Tab 11. 

¶5 Without holding a hearing, the administrative judge dismissed the appeal as 

untimely filed without good cause shown for the delay. IAF, Tab 12, Initial 
3

Decision (ID). Specifically, the administrative judge found that the appellant’s 

representative failed to mail the appeal to the Board in November 2016, and that 

the appellant, through his representative, demonstrated a lack of due diligence by 

not obtaining a postal receipt and by allowing 2 months to pass after the filing 

deadline before contacting the Board to question receipt of the appeal. ID at 5-7. 

The appellant filed a petition for review and the agency filed a response in 

opposition to the appellant’s petition. Petition for Review (PFR) File, Tabs 1, 3.2 

In his petition for review, the appellant reasserts his argument that his union 

representative mailed his appeal on November 8 or 9 of 2016. PFR File, Tab 1 

at 2-3. He further states that he was being proactive by following up with the 

Board in January of 2017 when he was told it had not received his appeal. Id. 

at 2. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 An appeal must be filed with the Board within 30 days of the effective date 

of an appealable agency action, or 30 days after the individual receives notice of 

the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). The Board will 

dismiss an appeal that is filed untimely unless the appellant shows good cause for 

the delay. 5 C.F.R. § 1201.22(c). The agency’s October 17, 2016 decision letter 

informed the appellant that he had 30 days after the October 18, 2016 effective 

date of the removal or 30 days after the date he received the agency’s decision 

letter, whichever was later, to file his appeal. IAF, Tab 1 at 11. The appellant 

received the decision letter on October 17, 2016. Id. at 2. Consequently, the 

deadline for filing this appeal was November 17, 2016. See 5 C.F.R. 

§ 1201.22(b).

 

2 Although the appellant’s petition for review appeared to lack a signature , as required 

by 5 C.F.R. § 1201.114(c), the Office of the Clerk of the Board did not reject the 

petition, and we therefore take no further action regarding this issue . PFR, Tab 1. 
4

¶7 If the appellant’s January 19, 2017 appeal was the only appeal, it was 

untimely filed by 63 days. IAF, Tab 1 at 18. However, the appellant alleged, in 

both his responses to the administrative judge and his petition for review, that his 

union representative filed his appeal on November 8 or 9, 2016. IAF, Tab 1; PFR 

File, Tab 1. In support of that claim, the appellant provided a signed statement

from his union representative that the appeal was timely filed on November 8 

or 9, 2016 and was sent by certified mail to the Board’s Western Regional 

Office’s address at 201 Mission Street, Suite 2310, San Francisco, CA, 

94105-1831.3 IAF, Tab 1 at 15-16. The appellant also provided certified mail 

receipts dated November 8, 2016, allegedly documenting that copies of the appeal 

were also mailed to the agency, as it requested, and the appellant. IAF, Tab 1 

at 17. In response to the administrative judge’s order regarding timeliness, the 

appellant also submitted his own unsworn statement reiterating when and how the 

appeal was filed in November 2016 and provided the same certified mail receipts. 

IAF, Tab 4. The agency has not rebutted the appellant’s argument that his 

representative sent a copy of the initial appeal to the agency nor shown that it 

would be prejudiced if the appeal were granted. IAF, Tab 11; PFR File, Tab 3.

¶8 When an appellant presents facially credible evidence sufficient to establish 

a dispute as to material facts regarding the timely filing of his appeal or good 

cause excusing his late filing, the administrative judge must hold a hearing to

resolve the factual dispute. Stout v. Merit Systems Protection Board, 

389 F.3d 1233, 1241 (Fed. Cir. 2004); Nelson v. U.S. Postal Service, 

88 M.S.P.R. 331, ¶ 5 (2001). The Board has held that evidence that a pleading 

was sealed, properly addressed to the Board with postage prepaid, and placed in 

the U.S. Postal Service mail stream gives rise to a presumption that it was filed 

on the date it was placed in the U.S. Postal Service mail stream, regardless of

whether the Board receives it. Gaydon v. U.S. Postal Service, 62 M.S.P.R. 198, 

 

3

This was the correct address for the Board’s San Francisco Regional Office at the 

time. In the fall of 2017, the regional office moved to Oakland, California.
5

202, review dismissed, 36 F.3d 1113 (Fed. Cir. 1994) (Table). Direct evidence is 

required to invoke the presumption of delivery and receipt, which may be in the 

form of a document or testimony. Foust v. Department of the Treasury, 

80 M.S.P.R. 477, ¶ 5 (1998), review dismissed, 194 F.3d 1332 (Fed. Cir. 1999) 

(Table). The party invoking the presumption must present specific details 

concerning the mailing, such as the time of day and place of the mailing. Freeze 

v. Department of Veterans Affairs, 65 M.S.P.R. 149, 152 (1994). 

¶9 In this case, the question of whether the appellant’s representative filed an 

appeal on November 8 or 9, 2016, is a factual matter in dispute. The appellant 

asserts, with more than a bare allegation, that he did. The documentary evidence 

submitted thus far establishes the existence of a genuine factual dispute and 

supports the appellant’s assertion that he timely filed his appeal. See Hutchison 

v. Merit Systems Protection Board, 91 F.3d 1458, 1460-61 (Fed. Cir. 1996); see

also Scott v. Department of Justice, 69 M.S.P.R. 211, 228 (1995) (holding that 

while an unsworn statement by an appellant is admissible evidence, the fact that it 

is unsworn may detract from its probative value), aff’d, 99 F.3d 1160 (Fed. Cir. 

1996) (Table); Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 

(1995) (finding that while statements of a party’s representative in a pleading do 

not constitute evidence, unchallenged assertions of the party’s representations 

may constitute nonfrivolous allegations raising factual questions). 

¶10 Here, the appellant raised a factual issue and requested a hearing. IAF 

Tab 1 at 1. Thus, we find it necessary to remand this matter to the regional office 

with the instruction that an evidentiary hearing be held on the timeliness issue. 

On remand, the appellant may present evidence and argument to show that the 

November 8, 2016 receipt he provided reflects a mistaken filing of the petition 

for appeal with the agency, and if it does, he must present evidence and argument 

to show that he filed the petition with the Board as soon as he learned of the

mistake. See Sanford v. Department of Defense, 61 M.S.P.R. 207, 210 (1994). 

The appellant also may present evidence and argument to support his assertion 
6

that he filed his petition for appeal with both the agency and the Board on 

November 8 or 9, 2016. If the administrative judge finds that the appellant timely 

filed his appeal, or that good cause exists to waive the filing time limit, the case 

should proceed on its merits. If, however, the administrative judge finds, after 

reviewing the evidentiary and testimonial evidence, that the appellant failed to 

timely file his appeal or failed to demonstrate that good cause exists to waive the 

filing deadline, then the administrative judge may dismiss the appeal as untimely 

filed.

ORDER

¶11 For the reasons discussed above, we remand this case to the Western 

Regional Office for further adjudication in accordance with this Remand Order. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board