UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

WILLIAM A. WILKINS,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DC-0752-17-0238-I-1

DATE: October 7, 2022

THIS ORDER IS NONPRECEDENTIAL1

William A. Wilkins, Hanau, Hessen, Germany, pro se.

Scott Stauffer, APO, AE, 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 removal appeal as untimely. For the reasons discussed below, we 

GRANT the appellant’s petition for review, VACATE the initial decision, and 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND the case to the regional office for further adjudication in accordance 

with this Order.

BACKGROUND

¶2 On January 9, 2017, the appellant, appearing pro se, filed an appeal 

challenging the agency’s action removing him effective October 15, 2016. Initial 

Appeal File (IAF), Tab 1. On his appeal form, the appellant certified as true that 

he received the removal decision on December 12, 2016, and he indicated that he 

did not want a hearing on his appeal. Id. at 2-3, 7. Because the appeal appeared 

to have been untimely, the administrative judge ordered the appellant to show that 

the appeal was timely filed or that he had good cause for his untimely filing. 

IAF, Tab 3. The appellant did not respond to the timeliness order. 

¶3 The agency responded to the order by moving that the appeal should be 

dismissed because the appellant filed his appeal long after the filing period 

expired. IAF, Tab 6 at 6. In support of its motion, the agency provided a

stamped U.S. Postal receipt, confirming that the removal decision letter was 

mailed to the appellant’s forwarding address on October 13, 2016. Id. at 19-20. 

However, the agency did not provide any documentation confirming delivery. A 

search on the U.S. Postal Service website, usps.com, of the tracking number on 

the postal receipt revealed that the letter was “return[ed] to sender” without 

explanation.2 The U.S. Postal Service returned it to the agency on October 20, 

2016. 

¶4 The administrative judge issued an initial decision, dismissing the appeal as 

untimely filed without good cause shown. IAF, Tab 7, Initial Decision (ID) at 3. 

She found that the decision letter notified the appellant with notice of his appeal 

rights and instructions for timely filing his appeal, and that the effective date of 

 

2 Although the U.S. Postal Service tracking report is not part of the record, it is publicly 

available and therefore we take official notice of it. See 5 C.F.R. § 1201.64 (providing 

that an administrative judge may take official notice of matters of common knowledge 

or that can be verified). 
3

his removal was October 15, 2016. The administrative judge also found that the 

appellant’s appeal was untimely filed on January 9, 2017. ID at 1, 3. The 

administrative judge found, moreover, that the appellant failed to support his 

claim that he did not receive the removal decision until December 12, 2016, or to

otherwise show good cause for his filing delay. ID at 3.

¶5 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. The agency has filed a response in opposition to his petition, and the 

appellant has filed a reply. PFR File, Tabs 4-5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 On review, the appellant argues that his filing delay was caused by a 

medical condition and he submits supporting medical documentation with his 

petition. PFR File, Tab 1 at 2-19, Tab 5 at 2-5. In response, the agency argues 

that the Board should deny the petition for review because the appellant failed to 

respond to the administrative judge’s timeliness order, and he has not shown that 

the evidence he submits on review is new and material or previously unavailable. 

PFR File, Tab 4 at 6-7. Although the appellant did not respond to the 

administrative judge’s order regarding timeliness, we find that the record on 

appeal was sufficient to conclude that his appeal was timely filed for the reasons 

discussed below. Thus, we need not consider the appellant’s evidence and 

argument on review that his medical condition provided good cause to waive the 

filing deadline. See 5 C.F.R. § 1201.115(d) (providing that a petition for review 

may be granted based on a showing that new and material evidence is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed); see also Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998) 

(setting forth the elements that a party must prove to establish that an untimely 

filing was the result of an illness).

¶7 To be timely, an appellant must file his appeal within 30 calendar days after 

the effective date of the challenged action or receipt of the agency’s decision, 
4

whichever is later. See 5 C.F.R. § 1201.22(b)(1). Properly addressed 

correspondence sent to the appellant via postal or commercial delivery generally 

is presumed to have been duly delivered to the addressee. See 5 C.F.R. 

§ 1201.22(b)(3). 

¶8 Here, the appellant stated on his appeal form that he received the agency’s 

removal decision letter on December 12, 2016. IAF, Tab 1 at 3. He also averred

that the contents of his appeal form were true. Id. at 7. The administrative judge

dismissed the appeal as untimely filed based in part on the appellant’s failure to 

respond to her timeliness order. ID at 3. In dismissing the appeal, however, the 

administrative judge did not explicitly identify the appellant’s deadline for

appealing his removal to the Board. Thus, the basis for the administrative judge’s

finding that the appeal was untimely filed is unclear. Nonetheless, it appears that 

she found that the agency delivered the removal decision letter to the appellant

before the October 15, 2016 removal date identified in the letter, and that he

should be deemed to have received it before the December 12, 2016 receipt date

that he certified on his appeal form. ID at 3. 

¶9 We disagree with the administrative judge’s finding that this appeal was 

untimely filed because there is no evidence in the record either that the appellant

received the removal decision before the effective date of his removal or 

discrediting his certification on his appeal form that he received the removal 

decision on December 12, 2016. Although the Board generally presumes that 

documents placed in the mail are received in 5 days, that presumption was 

rebutted here by the appellant’s certified statement that he received the decision 

later. See Cabarloc v. Department of Veterans Affairs, 110 M.S.P.R. 695, ¶¶ 7-8

(2009); 5 C.F.R. §§ 1201.22(b)(3), 1201.23. Moreover, as stated above, the

decision letter that the agency sent to the appellant on October 13, 2016, was

returned. IAF, Tab 6 at 19. The agency submitted no proof of delivery. Based 

on the record, we therefore find that the appellant proved that he received the 

decision letter on December 12, 2016, requiring that he file his appeal on or 
5

before January 11, 2017, within 30 days of receiving the decision. See 5 C.F.R. 

§ 1201.22(b)(1). The appellant filed his appeal on January 9, 2017, before the 

filing deadline. Accordingly, we find that his appeal was timely filed.

ORDER

¶10 For the reasons discussed above, we vacate the initial decision and remand

this case to the Board’s Washington 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