UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KRISTEN L. MOWDER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-0752-17-0376-I-2

DATE: March 26, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Simpson, Philadelphia, Pennsylvania, for the appellant.

David E. Mapp, Esquire, Philadelphia, Pennsylvania, 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

affirmed her removal. For the reasons set forth below, the appellant’s petition for

review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.

§ 1201.114(e), (g).

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant was removed from her position as a Postmaster with the

agency for improper conduct. Mowder v. U.S. Postal Service, MSPB Docket

No. PH-0752-17-0376-I-1, Initial Appeal File (IAF), Tab 4 at 20-24. She timely

filed this appeal with the Board. IAF, Tab 1. 

On July 6, 2018, the administrative judge issued an initial decision

affirming the appellant’s removal. Mowder v. U.S. Postal Service, MSPB Docket

No. PH-0752-17-0376-I-2, Appeal File (I-2 AF), Tab 19, Initial Decision (ID).

The initial decision explained that it would become final on August 10, 2018,

unless the appellant filed a petition for review by that date. ID at 24-25. The

initial decision informed the appellant how to file such a petition for review with

the Clerk of the Board. ID at 25.

On August 9, 2018, the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) received a petition for review from the appellant. Mowder v.

U.S. Postal Service, MSPB Docket No. PH-0752-17-0376-L-1, Litigation File,

Tab 1 at 2. Notably, although the envelope containing the appellant’s petition

was addressed to the Federal Circuit, the petition itself was addressed to the Clerk

of the Board. Id. at 2, 33. The Federal Circuit docketed the appellant’s petition

on August 13, 2018. Id. at 1.

The appellant then filed a petition for review with the Board on

September 20, 2018, asserting, among other things, that she filed with the Federal

Circuit in error. Mowder v. U.S. Postal Service, MSPB Docket No. PH-0752-17-

0376-I-2, Petition for Review (PFR) File, Tab 1 at 1. In her motion requesting

that the Board accept her petition as timely or waive the time limit for good

cause, the appellant asserted that she received the initial decision via mail on

July 13, 2018, and stated that her nervousness and inexperience caused her to

misread the section of the initial decision pertaining to her appeal rights and thus

send her petition to the Federal Circuit rather than the Board. PFR File, Tab 4

2
at 3. The agency has filed a response to both the petition for review and the

appellant’s motion on timeliness. PFR File, Tabs 3, 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review generally must be filed within 35 days after the date

of the issuance of the initial decision, or if the party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The

date of filing by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l). 

Here, the appellant alleges that she received the initial decision on July 13,

2018, which is 7 days after the date of its issuance. PFR File, Tab 4 at 3. Thus,

she was required to file her petition for review with the Board by August 13,

2018.2 The appellant’s petition for review is postmarked September 20, 2018.

PFR File, Tab 1. It is therefore 38 days late. 

The Board will excuse the untimely filing of a petition for review only

upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g); see Via v.

Office of Personnel Management, 114 M.S.P.R. 632, ¶ 5 (2010). 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 petition for review. Via,

114 M.S.P.R. 632, ¶ 5; 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).

Generally, when an initial decision clearly informs an appellant where to

file her Board petition for review and she misdirects her petition to the Federal

Circuit, good cause does not exist for her later untimely filing with the Board.

2

 Thirty days following July 13, 2018, was Sunday, August 12, 2018. The deadline for

filing a petition for review was therefore the next workday. 5 C.F.R. § 1201.23. 

3
Marino v. Office of Personnel Management, 96 M.S.P.R. 294, ¶ 8 (2004), aff’d,

122 F. App’x 480 (Fed. Cir. 2005); Colon v. U.S. Postal Service, 71 M.S.P.R.

514, 517 (1996). Here, as explained previously, the initial decision provided that

it would become final on August 10, 2018, unless a petition for review was filed

with the Clerk of the Board by that date. ID at 24-25. The initial decision clearly

set forth how the appellant could file a petition for review and the Clerk of the

Board’s address. ID at 25. The initial decision further informed the appellant

that the Board’s final decision—which would be issued by the Board at a later

date if the appellant timely filed a petition for review, or would be the initial

decision itself if she did not timely file a petition for review—could be appealed

to, inter alia, the Federal Circuit. ID at 28-31. Thus, the initial decision clearly

informed the appellant of the proper procedures for filing a petition for review

with the Board.

Although the appellant has handled her own filings on review and filed a

petition with the Federal Circuit before the initial decision became final, that

alone does not warrant a waiver of the filing deadline. See Evans v. Office of

Personnel Management, 85 M.S.P.R. 36, ¶ 9 (1999); Olson v. U.S. Postal Service,

66 M.S.P.R. 383, 387-88 (1995). Inexperience with legal matters and

unfamiliarity with Board procedures does not excuse a failure to follow direct and

explicit instructions. Olson, 66 M.S.P.R. at 387-88; see Alexander v. Department

of Veterans Affairs, 51 M.S.P.R. 368, 370 (1991) (finding that the appellant failed

to establish good cause for her untimely filed petition for review when her

confusion led her to file a petition with the Federal court system instead of with

the Board and her confusion was not caused by the initial decision).

The appellant’s delay in filing the petition for review—38 days—was not

minimal. See Colon, 71 M.S.P.R. at 519 (finding that a 27-day delay in filing a

petition for review was not a minimal delay). Moreover, the delay was not due to

circumstances beyond her control, but was instead due to her own failure to

follow instructions. PFR File, Tab 4 at 3. Under these circumstances, we find

4
that the appellant has failed to show good cause for a waiver of the filing

deadline. See Olson, 66 M.S.P.R. at 387-88.

Accordingly, we dismiss the petition for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petition for review. The initial decision remains the final decision of the

Board regarding the appellant’s removal.

NOTICE OF APPEAL RIGHTS3

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 U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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.

5
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,

and your representative receives this decision before you do, then you must file

6
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 

7
(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.. 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. 

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. 

8
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.

9