UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EMMIE D. REED,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

SF-0752-14-0587-I-1

DATE: April 16, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Emmie D. Reed, Walnut, California, pro se.

Mikel C. Deimler, Esquire, San Francisco, California, 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 without good cause shown for the delay. 

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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

the law to the facts of the case; the 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. See

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, and based on the 

following points and authorities, 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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 Prior to her removal, the appellant was employed with the agency as an 

appeals officer. Initial Appeal File (IAF), Tab 7 at 40. The agency proposed her 

removal on February 12, 2014, id. at 76-82, and removed her effective April 9, 

2014, id. at 48-51. The removal decision informed the appellant of her right to 

appeal to the Board no later than 30 calendar days after the effective date of the 

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

was later. Id. at 49-51. The appellant filed the instant Board appeal on May 27, 

2014, asserting, inter alia, that her appeal was timely because she only received 

notice of her removal when she received a Standard Form 50 from the agency on 

May 10, 2014. IAF, Tab 1, Tab 4 at 4. The administrative judge issued an order 

stating that the appeal appeared to be untimely, and notifying the appellant of her

burden of proving that either her appeal was timely or that, although it was 

untimely filed, there was good cause for the delay in filing; the administrative 

judge’s order included the standard for establishing good cause for untimely 

filing due to illness. IAF, Tab 2. The agency responded, asserting, inter alia, that 

the appellant attempted to avoid service or failed to provide the agency with 
3

updated contact information and that it properly sent the decision letter and other 

correspondence to the appellant via the United States Postal Service (USPS) and 

United Parcel Service (UPS). IAF, Tab 7 at 5. 

¶3 In the initial decision, the administrative judge found that the appeal was 

untimely filed because the appellant had constructive notice of the removal 

decision when it was delivered to her house; he further found that the appellant 

had not shown good cause for the delay. IAF, Tab 24, Initial Decision (ID) 

at 15-18. The administrative judge cited the declaration of an agency employee 

stating that the agency sent the decision letter on March 27, 2014, by UPS to the 

appellant’s home address and by USPS to her post office box and home address. 

ID at 9 (citing IAF, Tab 20); see IAF, Tab 7 at 52-57 (copies of envelopes used to 

mail the decision letter via UPS and USPS and UPS tracking detail stating that 

the letter had been delivered to the appellant’s porch on March 28, 2014). The 

administrative judge also cited the employee’s statement that neither of the 

decision letters sent by USPS nor the five boxes of personal belongings that he 

sent to the appellant via UPS was returned to the agency. ID at 9 (citing IAF, 

Tab 9 at 51-52, Tab 20 at 5-6). The administrative judge found that the agency’s 

letters were actually delivered but that the appellant was attempting to avoid 

receipt of letters from the agency related to disciplinary matters. ID at 13-15. In 

support of this finding, the administrative judge noted that, although the appellant 

claimed not to have received letters related to discipline, such as the February 12, 

2014 proposed removal letter, IAF, Tab 1, an agency employee stated in a 

declaration that the agency received a facsimile from the appellant on 

February 13, 2014, responding to a notice concerning her health benefits that the 

agency mailed to her post office box on January 14, 2014, ID at 9 (citing IAF, 

Tab 10 (letter from the agency concerning health benefits election and response 

from the appellant sent by facsimile on February 12, 2014)). He also noted that a 

newly packaged/repackaged decision letter was shipped to the agency by someone 

through a San Francisco UPS receptacle, receiver, or office on June 10, 2014, but 
4

that nothing indicated that it was not originally delivered. ID at 14; see IAF, 

Tab 7 at 29-35 (decision letter, UPS envelope, and UPS tracking information for 

returned decision letter). He therefore found that the decision letter was 

delivered by UPS to the appellant’s home address on March 28, 2014, that she 

intentionally avoided receiving the decision, and that she thus had constructive 

notice of the decision letter on March 28, 2014. ID at 15. 

¶4 The appellant has petitioned for review, asserting that she diligently filed 

her appeal after receiving notice of her removal, that the instant case should have 

been treated as a mixed case with respect to the applicable deadlines for filing her 

appeal, and that the administrative judge did not properly consider her illness in 

assessing the timeliness of her appeal. Petition for Review (PFR) File, Tab 3 

at 6. The agency has filed a response. PFR File, Tab 7.

¶5 An appellant bears the burden of proving through preponderant evidence 

that her appeal has been timely filed. 2

 Kirkland v. Department of Homeland 

Security, 119 M.S.P.R. 74, ¶ 5 (2013); 5 C.F.R. § 1201.56(a)(2)(ii). Generally, 

an appeal must be filed no later than 30 days after the effective date, if any, of the 

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

decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). The Board will dismiss 

an appeal that is untimely filed unless a good reason for the delay is 

shown. 5 C.F.R. § 1201.22(c).

¶6 Here, the administrative judge found, and we agree, that the decision letter 

was delivered by UPS to the appellant’s home address on March 28, 2014. ID 

at 15. Under 5 C.F.R. § 1201.22(b)(3), “correspondence which is properly 

addressed and sent to the appellant’s address via postal or commercial delivery is 

presumed to have been duly delivered to the addressee.” The regulation further 

states, “While such a presumption may be overcome under the circumstances of a 

 2 A preponderance of the evidence is that degree of relevant evidence that a reasonable 

person, considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
5

particular case, an appellant may not avoid service of a properly addressed and 

mailed decision by intentional or negligent conduct which frustrates actual 

service.” Id. The appellant has not presented evidence or argument, other than 

her bare assertions, that she did not receive the decision letter on the date that it 

was delivered to her home address. The appellant thus has not established by 

preponderant evidence that she did not receive the decision letter when it was 

delivered via UPS on March 28, 2014. Cf. Marcantel v. Department of 

Energy, 121 M.S.P.R. 330, ¶ 9 (2014) (regardless of whether the appellant’s 

father was authorized to receive letters on his behalf, the appellant constructively 

received the decision letter on the date that it was delivered and signed for at his 

father’s address (his address of record)).

¶7 Additionally, the appellant has not established that she did not receive the 

decision letter delivered to her post office box. The Board’s regulations provide 

that an appellant may be deemed to have received an agency decision when she 

failed to pick up mail delivered to her post office box. 5 C.F.R. § 1201.22(b)(3), 

Example A. The appellant has failed to rebut the presumption that she received 

the decision letter that was properly addressed and sent to her post office box via 

postal delivery. See 5 C.F.R. § 1201.22(b)(3). Therefore, even if, as the 

appellant alleges, she did not receive the decision letter that was delivered to her 

house via USPS or UPS, we find that she is deemed to have received the decision 

letter that was delivered to her post office box.

¶8 Because the appellant’s removal was not effective until April 9, 2014, IAF, 

Tab 7 at 48-51, after the appellant was deemed to have received the decision 

letter, we agree with the administrative judge that the filing deadline was 30 days 

later, on May 9, 2014, see 5 C.F.R. § 1201.22(b)(1). The appellant did not file

her appeal until May 27, 2014, or 18 days after the deadline. IAF, Tab 1. We

therefore find that the appellant has not established that her appeal was timely 

filed. 
6

¶9 On petition for review, the appellant asserts that the timeframes for filing a 

mixed case should apply to her appeal. PFR File, Tab 3 at 6. A mixed case 

appeal is an appeal filed with the Board alleging that an appealable agency action 

was effected, in whole or in part, because of discrimination on the basis of race, 

color, religion, sex, national origin, disability, age, or genetic 

information. 29 C.F.R. § 1614.302(a)(2). The timeframe for filing mixed case 

appeals is governed by 5 C.F.R. § 1201.154. Under 5 C.F.R. § 1201.154(a), the 

appellant may either file a timely complaint of discrimination with the agency or 

file an appeal with the Board no later than 30 days after the effective date, if any, 

of the action being appealed or 30 days after the date of the appellant’s receipt of 

the agency's decision on the appealable action, whichever is later. If the 

appellant had filed a direct Board appeal under 5 C.F.R. § 1201.154(a), just as 

under 5 C.F.R. § 1201.22(b), she would have had to file her appeal within 30 days 

of the effective date of her removal. Therefore, as previously discussed, her 

appeal would have been filed 18 days after the deadline. 

¶10 Under 5 C.F.R. § 1201.54(b), if the appellant has filed a formal complaint 

of discrimination with the agency prior to appealing to the Board, the right to 

appeal to the Board does not vest until the agency issues a final decision on the 

discrimination complaint or 120 days elapse from the date the complaint is filed 

with the agency. Although the appellant states that her appeal should be 

governed by the timeframes for mixed appeals, she has not presented evidence 

that she filed a formal complaint of discrimination concerning her removal prior 

to filing her appeal.3

 Thus, the appellant’s arguments concerning mixed-case 

 3 In its response, the agency submitted a July 2014 final agency decision that addressed 

the appellant’s August 2013 and December 2013 formal complaints concerning other 

agency actions (not the appellant’s removal). PFR File, Tab 7 at 22-41. The agency 

also submitted a June 2014 equal employment opportunity counseling report that 

reflected that the appellant wanted to initiate a complaint concerning her removal, but 

there is no evidence of a formal complaint. Id. at 106-07.
7

procedures are unsubstantiated and, in any event, do not warrant a different 

outcome.

¶11 Next, we find that the administrative judge properly determined that the 

appellant did not show good cause for the untimely filing. 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 if 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 evidence of unavoidable casualty or misfortune which similarly shows a 

causal relationship to her inability to timely file her petition. 4 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). Where an appellant asserts that an untimely filing was the 

result of an illness, she must: (1) identify the time period during which she 

suffered from the illness; (2) submit medical evidence showing that she suffered 

from the alleged illness during that time period; and (3) explain how the illness 

prevented her from timely filing her appeal or a request for an extension of time. 

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

¶12 The administrative judge found that the appellant failed to show good cause 

for the untimely filing of her appeal. ID at 17-18. On review, the appellant 

presents general arguments that her illness prevented her from focusing on 

routine habits such as checking her post office box or her home mail. PFR File, 

Tab 3 at 7-8. Under 5 C.F.R. § 1201.115(d), the Board will not consider evidence 

 4 Although the appellant is proceeding pro se on petition for review, PFR File, Tab 6, 

she was represented below, see IAF, Tab 1, and we therefore do not consider her pro se 

for purposes of determining whether she has shown good cause for the untimely filing

of her initial appeal.
8

submitted for the first time with the petition for review absent a showing that it 

was unavailable before the record was closed below despite the party’s due 

diligence. Although the appellant’s arguments concerning her illness may be 

new, we do not consider them because the information upon which the arguments 

are based is not new. See Clemens v. Department of the Army, 120 M.S.P.R. 616, 

¶ 19 n.10 (2014). Furthermore, even if we did consider these arguments, we find 

that they do not establish that the appellant’s illness affected her ability to timely 

file an appeal or to request an extension of time to file her appeal. See Tacujan v. 

U.S. Postal Service, 109 M.S.P.R. 553, ¶ 8 (2008) (finding that the appellant did 

not establish that his mental illness affected his ability to file a petition for appeal 

or request an extension of time to file an appeal where he submitted no medical 

documentation to support his assertion that his condition prevented him from

timely filing his appeal).

¶13 We further find that the delay in filing of 18 days is not minimal. See 

Harris v. Department of Defense, 101 M.S.P.R. 123, ¶ 10 (2006) (declining to 

excuse an 8-day delay in filing an appeal where there was no good cause shown 

for the delay). Considering the record as a whole, we agree with the 

administrative judge that the appellant did not establish good cause for her 

untimely filing. Accordingly, we find that the administrative judge properly 

dismissed the appeal as untimely filed without good cause shown for the delay.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States 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
9

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. 

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 your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. 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.

______________________________

William D. Spencer

Clerk of the Board