UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TIMARAH MAYLE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0752-16-0728-I-1

DATE: January 18, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Timarah Mayle, Gulf Breeze, Florida, pro se.

Donald Vicini, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the 

appellant’s petition for review is DISMISSED as untimely filed without good 

cause shown. 5 C.F.R. § 1201.114(e), (g). 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 filed the instant appeal, challenging her May 2016 

termination from her Postal Support Employee Sales & Services Distribution

Associate position. Initial Appeal File (IAF), Tab 1. In short, the agency 

terminated the appellant during her probationary period for being unable to 

satisfactorily meet the requirements of the position. Id. at 10. The agency 

moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 7. On 

September 13, 2016, the administrative judge issued an initial decision 

dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID) 

at 4. 

¶3 The appellant filed the instant petition for review on April 6, 2017. Petition 

for Review (PFR) File, Tab 1. The agency filed a motion to dismiss the petition 

for review as untimely. PFR File, Tab 4. The appellant has replied to the 

agency’s motion. PFR File, Tab 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 The Board’s regulations provide that a petition for review must be filed 

within 35 days after the issuance of the initial decision or, if the appellant shows 

that the initial decision was received more than 5 days after the day of issua nce, 

within 30 days after the date she received the initial decision. 5 C.F.R. 

§ 1201.114(e). Here, the administrative judge informed the appellant that the 

initial decision would become the Board’s final decision on October 18, 2016, 

unless either party filed a petition for review by that date. ID at 5. She further 

informed the appellant that, if she received the initial decision more than 5 days 

after the date of issuance, she could file a petition for review within 30 days after 

the date of receipt. Id. In addition, she notified the appellant that the 30-day 

period would begin to run upon either her or her representative’s receipt of the 

initial decision, whichever occurred first. Id. 
3

¶5 The Board’s certificate of service reflects that, on September 13, 2016, the 

initial decision was sent by email to the appellant, who had registered as an 

e-filer. ID at 10; see 5 C.F.R. § 1201.14(e)(1) (stating that registration as an 

e-filer constitutes consent to accept electronic service of pleadings filed by other 

registered e-filers and documents issued by the Board). Thus, we find that the 

30-day period began to run on September 13, 2016, when the appellant received 

the initial decision. See 5 C.F.R. § 1201.14(m)(2) (explaining that Board 

documents served electronically on registered e-filers are deemed received on the 

date of electronic submission). Based on the foregoing, we further find that the 

deadline for filing a petition for review was October 18, 2016. See 5 C.F.R. 

§ 1201.114(e).

¶6 The appellant filed a petition for review on April 6, 2017, nearly 6 months 

past the filing deadline. PFR File, Tab 1. In an acknowledgement letter, the 

Clerk of the Board informed the appellant that her petition for review was 

untimely filed and that she could file a motion with the Board to accept her filing 

as timely or to waive the time limit for good cause. PFR File, Tab 2. The letter 

also stated that the motion must be sent by April 21, 2017. Id. at 2. The 

appellant did not timely file any argument or evidence concerning the timeliness 

of her petition for review. On April 27, 2017, the agency urged for dismissal of 

the petition for review as untimely filed. PFR File, Tab 4. On that same day, the 

appellant filed a response to the agency’s motion. PFR File, Tab 5. She argues 

that her untimely filing of her petition for review was due to various family and 

financial problems. Id. 

¶7 The Board will excuse the late filing of a petition for review on a showing 

of good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good cause 

for an untimely filing, a party must show that she exercised due diligence or 

ordinary prudence under the particular circumstances of the case. Alonzo v. 

Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether 
4

an appellant has shown good cause, the Board will consider the length of the 

delay, the reasonableness of her excuse and her showing of due diligence, 

whether she is proceeding pro se, and whether she has presented evidence of the 

existence of circumstances beyond her control that affected her ability to comply 

with the time limits or of unavoidable casualty or misfortunate that similarly 

shows a causal relationship to her inability to timely file her petition. Moorman

v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167

(Fed. Cir. 1996) (Table). Moreover, an allegation of financial and family 

difficulties does not constitute good cause for waiving the deadline for filing a 

petition for review. Robey v. U.S. Postal Service, 105 M.S.P.R. 539, ¶ 16, aff’d, 

253 F. App’x 993 (Fed. Cir. 2007); Garcia v. Office of Personnel Management, 

85 M.S.P.R. 576, ¶ 4, aff’d, 251 F.3d 170 (Fed. Cir. 2000) (Table).

¶8 In her response to the agency’s motion to dismiss, the appellant 

acknowledges that the deadline to file her petition for review was October 18,

2016 and that her petition is untimely. PFR File, Tab 5 at 4. The appellant 

asserts that her petition for review is untimely due to hardships and stress from 

her termination from the agency. Id. She details that she has been under 

significant stress and distracted since her termination due to an inability to pay 

her mortgage and utility bills and having suffered a strained relationship with her 

children. Id. at 4-9. 

¶9 However, she has not explained how these events contributed to the 

untimeliness of her petition for review. See Moorman, 60 M.S.P.R. at 63. 

Further, the appellant’s nearly 6-month delay in filing her petition for review is 

significant, notwithstanding her pro se status. E.g., Dow v. Department of 

Homeland Security, 109 M.S.P.R. 633, ¶¶ 3, 8 (2008) (finding a delay of more 

than 1 month to be significant, notwithstanding the appellant’s pro se status). 

Therefore, under these circumstances, we find the appellant has not shown good 

cause for the delay in filing her petition. 
5

¶10 Accordingly, we dismiss the petition for review as untimely filed. This is 

the final decision of the Merit Systems Protection Board regarding the timeliness 

of the petition for review. The initial decision remains the final decision of the 

Board regarding the dismissal of the underlying appeal.

NOTICE OF APPEAL RIGHTS2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

 

2

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
6

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 
7

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 
8

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.3 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

 

3

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
9

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board