UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

DAVID L. TAYLOR, SR.,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DA-0752-14-0106-I-1

DATE: August 6, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

David L. Taylor, Sr., Slidell, Louisiana, pro se.

Traci G. Gann, Esquire, Dallas, Texas, 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 without good cause shown for the 

delay. For the reasons set forth below, the appellant’s petition for review is 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

§ 1201.114(e), (g).

BACKGROUND

¶2 Effective May 20, 1997, the agency removed the appellant from his position 

of city letter carrier for the Postal Service in Shreveport, Louisiana, for 

unsatisfactory attendance/absence without leave (AWOL). Initial Appeal File 

(IAF), Tab 2 at 103. On December 23, 2013, the administrative judge issued an 

initial decision, based on the parties’ written submissions, dismissing the appeal 

as untimely. IAF, Tab 6, Initial Decision (ID) at 1. The appellant received the 

initial decision on the day that it was issued. Petition for Review (PFR) File, 

Tab 1 at 3. The initial decision included notice to the appellant of his right to 

petition for review but also informed him that the record would close and the 

initial decision would become final if he failed to file his petition for review by 

January 27, 2014. ID at 4-7. However, the appellant again failed to file on time, 

as he did not submit the instant petition for review until January 31, 2014, or 

4 days past the filing deadline. PFR File, Tab 1.

¶3 In filing his online petition for review, the appellant was notified of his 

burden to establish good cause for the untimely filing. PFR File, Tab 1 at 3. The 

appellant attributed his untimeliness not to “the time line [being] overlooked” but 

to his inability to obtain representation and “the sudden natural disaster recently 

to our area, and having to resort to emergency shelter.” 2

 Id. at 5. The agency has 

 2 It is unclear whether the appellant’s petition explains the delay for his untimely initial 

appeal or petition for review. PFR File, Tab 1 at 5. We will construe his arguments as 

explanation for his untimely petition for review. See generally Jordan v. Office of 

Personnel Management, 108 M.S.P.R. 119, ¶ 19 (2008) (pro se pleadings are to be 

construed liberally). Otherwise, if the arguments related to the untimely initial appeal, 

the Board would not consider them because the appellant did not raise them below or 

provide reason for his failure to do so. See Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980) (The Board normally will not consider an argument raised 

for the first time in a petition for review absent a showing that it is based on new and 

material evidence not previously available despite the party’s due diligence.).
3

requested that the petition be dismissed because the appellant was 16 years late in 

filing his initial appeal and 4 days late in filing his petition for review. PFR File, 

Tab 3 at 5-7. The agency further noted that the appellant has “a history of 

untimely filings,” as his equal employment opportunity (EEO) complaint was 

dismissed as untimely because he waited 14 months to contact an EEO counselor

and an appeal to the Court of Appeals for the Fifth Circuit was dismissed for want 

of prosecution, also due to the untimeliness of his filings. Id.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 To be timely, a petition for review must be filed within 35 days of the date 

of the initial decision’s issuance or within 30 days after receipt, if the decision 

was received more than 5 days after the date of issuance. 5 C.F.R. § 1201.114(e). 

Here, the appellant indicates that he received the initial decision on the same day 

of its issuance. PFR File, Tab 1 at 3; ID at 1. Accordingly, the appellant had 

until January 27, 2014, the 35th day following the issuance of the 

December 23, 2013 initial decision, to file a petition for review. ID at 4. 

Because the appellant did not file until January 31, 2014, PFR File, Tab 1, we 

find that his petition for review was untimely by 4 days.

¶5 The Board will waive its filing deadline only upon a showing of good cause, 

regardless of how minimal the delay. 5 C.F.R. §§ 1201.22(c), 1201.114(f); Lands 

v. Department of the Air Force, 95 M.S.P.R. 593, ¶¶ 5-7 (2004) (filing even 1-day 

late requires a showing of good cause); Davis v. Department of the Navy, 

52 M.S.P.R. 450, 453 (1992) (same). To establish good cause for an untimely 

filing, a party 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 
4

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) 

(Table).

¶6 A lack of representation or an appellant’s inability to obtain representation 

fails to establish good cause to excuse an untimely petition for review. McCoy v. 

U.S. Postal Service, 112 M.S.P.R. 256, ¶ 8 (2009), aff’d, 360 F. App’x 132 (Fed. 

Cir. 2010). Thus, the appellant’s argument that he was unable to obtain counsel 

does not constitute good cause for his 4-day delay in filing his petition.

¶7 Furthermore, in the absence of specific evidence relating the occurrence of 

the natural disaster to the delay, a general claim that a natural disaster was 

responsible for an untimely filing does not constitute good cause for a delayed 

filing. See Duran-Arcelay v. Office of Personnel Management, 70 M.S.P.R. 13, 

16 (1996) (generally asserting that a hurricane was the cause for the appellant’s 

untimely filing of his petition for review was insufficient to show good cause 

where he failed to state with any specificity how it caused the delay); Corpus v. 

Office of Personnel Management, 65 M.S.P.R. 315, 316-17 (1994) (asserting

recurrence of a weekly typhoon and loss of electricity was insufficient to show 

good cause for an untimely petition for review where the appellant failed to 

specify when the typhoon occurred or how these conditions affected her ability to 

timely file her petition). As a result, the appellant’s bare reference to “a sudden 

natural disaster,” PFR File, Tab 1 at 5, is insufficient to establish good cause for 

his untimely filing.

¶8 Finally, especially given the appellant’s familiarity with filing deadlines 

and his history of untimely filings, we find that he failed to act with the care and 

diligence of a reasonably prudent person in his position. See Bonefas v. 

Department of Transportation, 12 M.S.P.R. 65, 67 (1982) (even a lack of 

experience with the process is not a valid excuse for an untimely appeal, where 
5

the appellant has been properly notified of his appeal rights and filing deadlines). 

Consequently, we find that the appellant’s delay in filing his petition was the 

result of his own inaction or negligence.

¶9 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 TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 
6

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. 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.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board