UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JOCELYN STANLEY,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

PH-0752-18-0431-I-1

DATE: April 5, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Thomas J. Gagliardo, Baltimore, Maryland, for the appellant.

Jessica Craig, Baltimore, Maryland, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed her removal appeal as untimely filed without good cause shown or,

alternatively, for lack of jurisdiction. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to find that we need not reach the jurisdictional issue because the

appeal was untimely, we AFFIRM the initial decision. 

BACKGROUND

The agency issued a January 23, 2018 notice in which it proposed removing

the appellant from her Benefit Authorizer position for absence without leave

(AWOL). Initial Appeal File (IAF), Tab 7 at 18-29. The parties subsequently

entered into a “Last Chance Agreement” (LCA). Id. at 31-35. Pursuant to that

agreement, the agency agreed to hold the removal decision in abeyance for

24 months. Id. at 32. In exchange, the appellant agreed to improve her overall

conduct and to comply with agency procedures for requesting and obtaining

approved leave. Id. at 32-33. She further indicated she understood that any

further misconduct, as determined by management, would result in her removal.

Id. at 32. The appellant also explicitly waived her appeal rights. Id. at 32, 34.

On July 9, 2018, the agency notified the appellant that she had been AWOL on

18 different occasions, violating the LCA, and it was implementing her removal

effective immediately. IAF, Tab 13 at 4-8. 

The appellant filed an appeal in which she argued that the agency could not

prove the misconduct which allegedly violated the LCA. IAF, Tab 1 at 4.

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The administrative judge issued an order setting forth the appellant’s burden to

establish jurisdiction over an appeal involving an LCA waiving future appeal

rights. IAF, Tab 8 at 1-2. In response, the appellant asserted that 5 of the

18 instances of AWOL were not a basis for discipline and could not constitute

violations of the LCA. IAF, Tab 10 at 5. As to the remaining allegations, she

argued that the agency was required to provide proof of the alleged violations and

had not done so. Id. 

The administrative judge also issued an order setting forth the appellant’s

burden regarding the timeliness of the appeal. IAF, Tab 9 at 1-3. In response,

the appellant asserted that, as a result of a presidential executive order, her union

representative had been deprived of office space, telephones, and bulletin boards,

which the agency had previously supplied. IAF, Tab 12 at 4. 

Without holding the requested hearing, the administrative judge dismissed

the appeal for lack of jurisdiction or as untimely filed without good cause shown.

IAF, Tab 14, Initial Decision (ID) at 1, 5. Specifically, the administrative judge

found that the appeal was untimely filed by 5 days and the appellant’s argument

that the untimeliness of her appeal was caused by disruption of union activities

following an executive order did not constitute good cause. ID at 3-4. She also

found that the appellant had only disputed 5 of the 18 instances of AWOL but did

not dispute that she was AWOL on the other 13 instances. ID at 4-5.

The administrative judge found that this assertion was insufficient to show that

she complied with the LCA; thus, the Board lacked jurisdiction. ID at 1, 4-5.

The appellant has timely filed a petition for review. Petition for Review

(PFR) File, Tab 1. The agency has responded to the petition; however, we have

not considered its response because it was untimely filed without good cause

shown.2 PFR File, Tab 4. 

2

 The agency’s response to the appellant’s petition for review was due on or before

February 11, 2019. PFR File, Tab 2 at 1, Tab 5 at 1; see 5 C.F.R. § 1201.114(e)

(requiring responses to petitions for review be filed within 25 days of service of the

petition for review). The agency did not file its response until February 28, 2019.

3
DISCUSSION OF ARGUMENTS ON REVIEW

On review, the appellant challenges the administrative judge’s findings on

both the timeliness and jurisdictional issues. PFR File, Tab 1 at 2-3.

She reiterates her argument that she demonstrated good cause for the untimely

filing of her appeal due to the presidential executive order and that the agency did

not submit proof that she had violated the LCA. Id. 

We affirm the administrative judge’s finding that the appeal was untimely filed.

An appeal must be filed within 30 days after the effective date of the action

being appealed, or 30 days after the appellant’s receipt of the agency’s decision,

whichever is later. 5 C.F.R. § 1201.22(b)(1). The appellant bears the burden of

proving by preponderant evidence that she timely filed her appeal, or that there

was a good reason for the delay. 5 C.F.R. §§ 1201.22(c), 1201.56(b)(2)(i)(B).

Here, the appellant received the removal decision on July 9, 2018, and her

removal was effective that same day. IAF, Tab 13 at 4-8. Thus, to be timely, the

appellant was required to file her appeal by August 8, 2018. However, her appeal

was filed on August 13, 2018, 5 days late. IAF, Tab 1. 

To establish good cause for an untimely appeal, 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 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 misfortune

which similarly shows a causal relationship to her inability to timely file her

PFR File, Tab 4. Although the Office of the Clerk of the Board offered the agency the

opportunity to show good cause for the untimely filing, it has not responded. PFR File,

Tab 5. Under these circumstances, we find that the agency has failed to demonstrate

good cause for the untimeliness of its response. See 5 C.F.R. § 1201.114(g) (setting

forth the requirements for a party to show good cause for its untimely filing). 

4
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). 

On review, the appellant reasserts her argument that her untimely appeal

was attributable to the presidential executive order allegedly impairing her

communications with her union representative. PFR File, Tab 1 at 2. However,

as the administrative judge correctly found, an appellant is responsible for the

actions of her chosen representative. Sofio v. Internal Revenue Service,

7 M.S.P.R. 667, 670 (1981). Moreover, the administrative judge found that the

appellant did not demonstrate that she exercised due diligence or ordinary

prudence under the circumstances and that any impact the presidential order may

have had did not justify the appellant’s inaction during the entire appeal period.

ID at 3-4. We agree. 

In making this determination, we have considered that it does not appear

that the agency notified the appellant of any appeal rights that she might have of

her removal. IAF, Tab 13 at 4-8. The Board ordinarily will excuse untimeliness

in filing an appeal if an agency should have given notice of a right of appeal but

did not, so long as the appellant “acted promptly and within the allowable time

limits once he was aware of the basis of his claim.” Gordy v. Merit Systems

Protection Board, 736 F.2d 1505, 1508 (Fed. Cir. 1984). In Clark v. U.S. Postal

Service, 989 F.2d 1164, 1169-70 (Fed. Cir. 1993), the court held that an agency is

required to provide such notice to an employee being removed pursuant to an

LCA that includes a waiver of Board appeal rights only “if and when the

employee puts the agency on notice that he or she contests the agency’s assertion

of a breach of the agreement.” In this case, we find no indication in the record

that the appellant put the agency on notice that she was contesting the agency’s

assertion of a breach of the LCA before filing the instant appeal. Thus, the

agency had no corresponding obligation to give her notice of Board appeal rights,

and its failure to do so does not excuse the untimely filing of her appeal.

Id. at 1170. 

5
The initial decision states that the appeal is alternatively being dismissed

for lack of jurisdiction. ID at 1. Because we agree with the administrative

judge’s finding that the appeal was untimely, we do not reach the jurisdictional

issue. See Popham v. U.S. Postal Service, 50 M.S.P.R. 193, 196-97 (1991)

(finding that the Board need not dismiss an appeal for lack of jurisdiction if the

record shows that the appeal should be dismissed as untimely). 

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

3

 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
U.S. Court of Appeals for the Federal Circuit, which must be received by the

court 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 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. 

(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. 420 (2017). If you have a representative in this case,

7
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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

8
(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.4 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 

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. 

4

 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
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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

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