UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TINA R. BLAKE,

Appellant,

v.

DEPARTMENT OF THE AIR FORCE,

Agency.

DOCKET NUMBER

DA-0752-16-0280-I-1

DATE: September 23, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Curtis Mitchell, Jr., Midwest City, Oklahoma, for the appellant. 

Telin W. Ozier, Esquire, Midwest, Oklahoma, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her appeal as untimely filed. Generally, we grant petitions such as this 

one only when: the initial decision contains erroneous findings of material fact; 

the initial decision is based on an erroneous interpretation of statute or regulation 

or the erroneous application of the law to the facts of the case; the administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 MODIFIED by this Final Order, we AFFIRM the 

initial decision. Specifically, we MODIFY the initial decision to correct the 

administrative judge’s finding that the appellant’s appeal was due on January 10, 

2016. Because January 10, 2016 was a Sunday, the appeal was actually due 

on January 11, 2016, the next day on which the Board was open for business. 

¶2 By notice dated December 10, 2015, and effective that same day, the agency 

removed the appellant from her GS-5 Secretary (Office Automation) position 

based on alleged misconduct. Initial Appeal File (IAF), Tab 6 at 35‐40. After 

attempting to file an appeal on January 19, 2016, which the Dallas Regional 

Office returned to her as defective, the appellant filed an appeal on March 18, 

2016. IAF, Tabs 1-2. The administrative judge issued an Order on Timeliness in 

which she informed the appellant that her appeal appeared to be untimely filed 

and directed her to file evidence and argument showing that her appeal was 

timely filed or that good cause existed for the delay in filing. IAF, Tab 4. After 

considering the parties’ responses, the administrative judge found that the appeal 

was untimely filed and that the appellant failed to show good cause. IAF, Tab 16, 

Initial Decision (ID) at 4-7. She therefore dismissed the appeal. Id. at 1, 8. The 

appellant petitions for review of the initial decision. Petition for Review (PFR) 

File, Tab 1. 

¶3 An appeal must be filed no later than 30 days after the effective date of the 

adverse action being appealed, or 30 days after the date of receipt of the agency’s 
3

decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). The appellant’s removal 

was effective December 10, 2015. IAF, Tab 6 at 35. Therefore, if the appellant 

received the notice of decision on or before its effective date, the deadline for 

filing her appeal was January 11, 2016.

2 The appellant contended that she did not 

receive a copy of the agency’s decision until the agency submitted it during her 

state unemployment proceedings. IAF, Tab 9 at 2. In her appeal, she identified 

the date of receipt as February 17, 2016. IAF, Tab 2 at 3. 

¶4 The agency submitted tracking data from the U.S. Postal Service showing 

that it mailed the decision notice via certified mail to the appellant’s address of 

record on December 10, 2015, and that the notice was received and signed for 

on December 11, 2015. IAF, Tab 14 at 5. The appellant contended that she did

not receive this document and neither she nor anyone else at her residence signed 

for it. IAF, Tab 13 at 2. However, the tracking data is corroborated by a 

contemporaneous email in which one agency military officer reported to another 

military officer that the appellant reported for duty on December 14, 2015, “even 

though she received the certified removal notice this weekend.” IAF, Tab 6 at 33. 

¶5 The administrative judge found, and we agree, that the agency’s evidence 

that it mailed the notice on December 10, 2015, and the appellant received it on

December 11, 2015, outweighed the appellant’s contention that she did not 

receive it. ID at 5. The appellant reiterates on review her contention below that 

she did not receive the decision notice, PFR File, Tab 1 at 3-4, but she identifies 

no evidence of record that the administrative judge failed to consider, and we 

discern no error in the administrative judge’s conclusion that the appellant 

received the decision notice on December 11, 2015. Because the appellant 

received the decision notice on December 11, the deadline for filing an appeal 

was January 11, 2016, not January 10, 2016, as the administrative judge 

 2

 The thirtieth day after the effective date of the removal was Saturday, January 9, 

2016, so the actual filing deadline would have been the next day on which the Board 

was open for business, or Monday, January 11, 2016. 5 C.F.R. § 1201.23. 
4

mistakenly found, because January 10, 2016, was a Sunday. 5 C.F.R. § 1201.23. 

Thus, the appeal was approximately 2 months untimely filed. 

¶6 To establish good cause for the untimely filing of an 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 that similarly shows a causal relationship to her inability to timely file 

her appeal. 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). 

¶7 The appellant’s only argument concerning good cause is that she did not 

receive the decision notice. Evidence that a document was sealed, properly 

addressed, and deposited in the U.S. Mail with postage prepaid creates a 

rebuttable presumption that the letter reached the addressee in due course of the 

mails. Speker v. Office of Personnel Management, 45 M.S.P.R. 380, 384 (1990), 

aff’d, 928 F.2d 410 (Fed. Cir. 1991). The agency’s evidence is certainly 

sufficient to trigger a rebuttable presumption of delivery and receipt. Lesser 

evidence is required to raise a presumption of delivery and receipt than is 

required to rebut a presumption of delivery and receipt. Blue v. U.S. Postal 

Service, 65 M.S.P.R. 370, 375 n.2 (1994), aff’d, 65 F.3d 188 (Fed. Cir. 1995) 

(Table). The appellant has offered no persuasive evidence to corroborate her 

unsworn assertion that she did not receive the decision notice, and there is 

otherwise no corroborating evidence, such as evidence that the U.S. Postal 

Service returned the notice to the agency, that supports her claim. Dean v. Office 

of Personnel Management, 93 M.S.P.R. 520, ¶ 13 n.2 (2003), aff’d, 110 F. App’x 

123 (Fed. Cir. 2004); Blue, 65 M.S.P.R. at 375. Therefore, we agree with the 
5

administrative judge that the appellant failed to establish good cause for the 

untimely filing of her appeal. 3

 

¶8 The appellant’s remaining arguments on review concern the merits of the 

removal action and are not relevant to the timeliness of her appeal. Helmstetter v. 

Department of Homeland Security, 106 M.S.P.R. 101, ¶ 11 (2007); Marasco v. 

U.S. Postal Service, 66 M.S.P.R. 555, 558 (1995). Therefore, we have not 

considered them. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request review of this final decision by the U.S. Court of Appeals for the Federal 

Circuit. You must submit your request to the court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

 3 Because we find that the appellant received the decision notice on December 11, 2015,

and that the deadline for filing was January 11, 2016, even if her January 19, 2016 

submission met the Board’s filing requirements, it would still be untimely filed without 

a showing of good cause for the delay. 
6

Dec. 27, 2012). You may read this law as well as other sections of the 

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

Additional information 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, 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 Merit Systems Protection Board neither endorses the services 

provided by any attorney nor warrants that any attorney will accept representation 

in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board