UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROYCE GIDDINGS,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-14-0523-I-1

DATE: October 30, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Charles Crenshaw, Bedford Park, Illinois, for the appellant.

Maryl R. Rosen, Esquire, Chicago, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed his removal 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

or regulation or the erroneous application of 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). 

BACKGROUND

¶2 On January 15, 2014, the agency proposed removing the appellant, who is 

preference eligible, from his Laborer Custodial position for attendance-related 

misconduct. Initial Appeal File (IAF), Tab 1 at 1, 12-14. On January 30, 2014, 

the appellant’s union filed a grievance on his behalf challenging the notice of 

proposed removal. Id. at 15. On February 13, 2014, the agency issued its 

decision to remove the appellant effective February 25, 2014. IAF, Tab 5 at 9-12. 

The letter notifying the appellant of the agency’s decision to remove him 

explained the appellant’s appeal rights to the Board, including the applicable time 

limits for filing a Board appeal challenging his removal. Id. at 11. The agency 

mailed the decision letter via regular mail, express mail, and priority mail to the 

appellant’s address of record. Id. at 12. The decision letter sent by express mail 

was delivered to the appellant’s address of record and signed for by someone at 

that address on February 14, 2014. Id. at 13. On April 11, 2014, the agency 

denied the appellant’s grievance at step 2 of the parties’ negotiated grievance 
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procedure. IAF, Tab 1 at 15-18. The appellant’s union representative received 

that decision on April 20, 2014. Id. at 18. 

¶3 On May 5, 2014, the appellant filed an appeal of his removal with the 

Board. 2 IAF, Tab 1 at 19; see 5 C.F.R. § 1201.4(l) (the date of filing by mail is 

determined by the postmark date). The agency filed a motion to dismiss the 

appeal as untimely. IAF, Tab 5. The administrative judge then issued an order in 

which she notified the appellant of the timeliness issue and ordered him to file 

evidence and/or argument demonstrating either that his appeal was timely filed or 

that good cause existed for the filing delay. IAF, Tab 6. 

¶4 In response, the appellant asserted that he never received the decision letter,

his representative did not receive a copy of the decision letter until April 20, 

2014, and he filed the appeal within 30 days after he became aware of the letter. 

IAF, Tab 7 at 2, 7; see id. at 4, 6. He also contended that he does not know the 

person who signed for the letter delivered by express mail and he did not 

authorize anyone to sign for his mail. Id. at 1, 7. In response to the agency’s 

motion to dismiss, the appellant contended that, because the agency delivered the 

letter that required a signature to the wrong addressee, it could have delivered the 

other two copies of the decision letter to the wrong addressee and wrong address. 

IAF, Tab 11. 

¶5 In a July 14, 2014 initial decision, the administrative judge dismissed the 

appeal without holding the requested hearing, concluding that: (1) the appellant’s 

appeal was untimely filed; and (2) the appellant failed to show good cause for the 

untimely filing. ID at 2-5. The appellant has filed a petition for review. Petition 

for Review (PFR) File, Tab 1. The agency has filed a response in opposition to 

the petition for review. PFR File, Tab 5. 

 2 Due to an apparent inadvertent error, in the first paragraph of the initial decision and 

the second paragraph of the section of the decision entitled “TIMELINESS,” the 

administrative judge states that the appellant filed this appeal on April 24, 2014, which 

is the date that the appellant signed his Board appeal form. IAF, Tab 12, Initial 

Decision (ID) at 1, 2; see IAF, Tab 1 at 5-6. 
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ANALYSIS

The administrative judge correctly found that this appeal is untimely.

¶6 Generally, an appeal must be filed with the Board no later than 30 days 

after the effective date of the agency’s action, or 30 days after the date of the 

appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R. 

§ 1201.22(b)(1). An appellant is responsible for keeping the agency informed of 

his current home address for purposes of receiving the agency’s decision, and 

correspondence that 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. 5 C.F.R. § 1201.22(b)(3). The presumption of receipt may be 

overcome under the circumstances of a particular case, however. Id. 

¶7 Based on our review of the record, we agree with the administrative judge 

that the evidence presented by the agency gives rise to a presumption that the 

notice of removal was delivered to and received by the appellant. ID at 4. In 

addition to the receipt showing that the decision letter sent via express mail was 

signed for by someone at the appellant’s address on February 14, 2014, IAF, Tab 

5 at 13, the agency presented a declaration made under penalty of perjury by the 

agency employee, who mailed three decision letters to the appellant’s address, 

and tracking information showing that the decision letter was delivered to the 

appellant’s address of record prior to the effective date of the appellant’s 

removal, IAF, Tab 10 at 7-9, 14-18. More specifically, this tracking information 

shows that the letter sent via express mail was delivered to the appellant’s address 

on February 14, 2014, and the letter sent via priority mail was delivered to the 

appellant’s address on February 18, 2014. Id. at 14-18. Further, in her sworn 

declaration, the agency employee who mailed the decision letters states that the 

letter sent by regular mail was never returned. Id. at 8. 

¶8 In assessing whether the appellant rebutted the presumption of receipt, the 

administrative judge considered the appellant’s statements that he does not know 

the person who signed for the letter sent via express mail and he did not receive 
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any of the three mailed copies of the decision letter. ID at 4. The administrative 

judge found that these statements were insufficient to overcome the presumption 

of delivery and receipt, and she rejected as implausible the appellant’s claim that 

the fact that someone he does not know signed for the decision letter sent by 

express mail means that the other two decision letters could have been sent to the 

wrong address and addressee. ID at 4. The administrative judge noted that the 

appellant has never disputed that the letters bore the correct address and she 

found this claim insufficient to overcome the documentary proof submitted by the 

agency that these letters were delivered to the appellant’s address of residence. 

ID at 4.

¶9 The appellant appears to challenge this finding on review, reiterating his 

contention that he never received the decision letter and that the letter sent via 

express mail was signed for by an unknown person. PFR File, Tab 1 at 1-2. He 

further argues that, because an unknown person intercepted the decision letter 

sent by express mail, “it can be presumed” that the same person could have 

intercepted the other letters that were sent on the same day. Id. at 3.

¶10 We find this argument unpersuasive. We find it implausible that someone 

unknown to the appellant “intercepted” and signed for the decision letter that was 

sent via express mail and delivered to the appellant’s address of record, let alone 

that the other two decision letters sent to the appellant’s address by different 

methods would also have been intercepted. Further, regarding the appellant’s 

contention that “it can be presumed” that the same person who signed for the 

express mail delivery on February 14, 2014, also intercepted that other two 

decision letters because all three letters were mailed on the same day, we note 

that the tracking information shows that the three letters did not arrive on the 

same day, as the decision letter sent via express mail was delivered to the 

appellant’s address on February 14, 2014, whereas the decision letter sent via 

priority mail was delivered to the appellant’s address on February 18, 2014. See

IAF, Tab 10 at 14-18. Although the appellant alleges that he never received the 
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notice of removal, 3 IAF, Tab 7 at 7, he has not provided any evidence to support 

his claim that he did not receive the decision letter when it was delivered to his 

address of record on February 14, 2014, and February 18, 2014, see IAF, Tab 10 

at 14-18. Thus, the appellant has failed to rebut the presumption of receipt of the 

removal notice where it was both duly delivered to his address of record and 

signed for there. IAF, Tab 5 at 13, Tab 10 at 14-18; see 5 C.F.R. § 1201.22(b)(3). 

Therefore, we agree with the administrative judge that the filing deadline for this 

appeal was March 27, 2014, (i.e., 30 days after February 25, 2014, the effective 

date of the removal) and the appellant’s May 5, 2014 appeal was therefore 

untimely by 39 days. ID at 2.

The administrative judge correctly found that the appellant failed to establish 

good cause for his untimely filing.

¶11 The Board may waive its regulatory filing time limit for good cause 

shown. 5 C.F.R. § 1201.22(c). To establish good cause for the untimely filing of 

his appeal, an appellant must show that he 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 his excuse and his showing of due diligence, whether he is 

proceeding pro se, and whether he has presented evidence of the existence of 

 3 With his petition for review, the appellant submits a sworn statement dated July 31, 

2014, in which he asserts that he never received a copy of the decision letter via mail. 

PFR File, Tab 1 at 3. The Board generally will not consider evidence submitted for the 

first time on review absent a showing that the documents and the information contained 

therein were unavailable before the record closed despite due diligence. Avansino v. 

U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). To constitute new and material 

evidence, the information contained in the documents, not just the documents 

themselves, must have been unavailable despite due diligence when the record closed. 

Grassell v. Department of Transportation, 40 M.S.P.R. 554, 564 (1989). The appellant 

has made no showing that the information in this document was unavailable before the 

record closed despite his due diligence. Therefore, we have not considered this

document. Avansino, 3 M.S.P.R. at 214.
7

circumstances beyond his control that affected his ability to comply with the time 

limits or of unavoidable casualty or misfortune which similarly shows a causal 

relationship to his inability to timely file his 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). 

¶12 Applying these factors, the administrative judge found that the 39-day filing 

delay is not insignificant. ID at 5 (citing Innocent v. Office of Personnel 

Management, 108 M.S.P.R. 453, ¶ 9, aff’d, 296 F. App’x 925 (Fed. Cir. 2008) 

(Table); Eaglehart v. U.S. Postal Service, 102 M.S.P.R. 672, ¶ 8 (2006)). The 

administrative judge further found that the appellant’s explanation for the delay 

(i.e., that he did not receive any of the three letters of decision sent to his correct 

address) is not plausible. ID at 5. The administrative judge noted that the 

appellant was not pro se but, rather, was represented by his union in both his 

grievance and this appeal. ID at 5. The administrative judge also found that the 

appellant failed to present any evidence of unavoidable casualty or misfortune 

that shows a causal relationship to his inability to timely file. ID at 5. In 

addition, the administrative judge noted that the Board has specifically ruled that 

waiting to file an appeal with the Board until after a decision is rendered on a 

grievance of the same issue is not good cause for waiving the filing deadline. ID 

at 5 (citing McNeil v. U.S. Postal Service, 98 M.S.P.R. 18, ¶ 10 (2004);

Eaglehart, 102 M.S.P.R. 672, ¶ 9). Thus, the administrative judge found that the 

appellant had failed to show good cause for his untimely filed appeal. ID at 5. 

We discern no reason to disturb this finding. 

¶13 Accordingly, we find that the administrative judge correctly dismissed the 

appellant’s appeal as untimely filed without a showing of good cause.

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:
8

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. 

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
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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