Document #: 1141384 v 1

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KEITH A. JACKSON,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

DA-0752-14-0470-I-1

DATE: February 20, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL*

Keith A. Jackson, New Orleans, Louisiana, pro se.

Isabel M. Robison, 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 suspension appeal as moot. 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 

 * A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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).

¶2 Effective May 1, 2014, the agency placed the appellant, a City Carrier, in a 

non-duty, nonpay status following an alleged workplace incident. Initial Appeal 

File (IAF), Tab 1 at 1, Tab 2 at 2-5. The agency’s letter informed the appellant of 

his Board appeal rights as a preference-eligible veteran who remained in a nonpay 

status in excess of 14 days. IAF, Tab 2 at 5. The appellant appealed the agency’s 

action to the Board without requesting a hearing. IAF, Tab 1. He indicated on 

the initial appeal form that he was also appealing a negative suitability 

determination and a failure to restore/reemploy/reinstate or improper 

restoration/reemployment/reinstatement. Id. at 3.

¶3 The agency filed a motion to dismiss the appeal as moot, arguing that the 

agency rescinded the action and paid the appellant for the days he was placed in a 

nonpay status. IAF, Tab 5 at 4-15. Specifically, the agency asserted that it 

adjusted the appellant’s pay status from unpaid leave to paid leave, beginning on 

May 1, 2014, through May 29, 2014, and placed him in a paid administrative 

leave status beginning May 31, 2014. Id. at 10. The agency also stated that the 

appellant was off work on May 30, 2014. Id. To support its assertions, the 

agency submitted copies of clock ring reports, Time and Attendance Codes 
3

(TACS) AdjustPay adjustment certifications, and TACS codes. Id. at 52-68; see 

id. at 10.

¶4 The administrative judge issued a show cause order informing the appellant 

that an appeal may be dismissed as moot where the agency provides acceptable 

evidence showing that it has afforded the appellant all of the relief that he could 

have received if the matter had been adjudicated and he had prevailed. IAF, 

Tab 6. The administrative judge ordered the appellant to show cause why the 

appeal should not be dismissed as moot. Id. In a second show cause order, the 

administrative judge informed the appellant that his placement on enforced leave 

for more than 14 days is appealable as a suspension. IAF, Tab 7 at 1; see Abbott 

v. U.S. Postal Service, 121 M.S.P.R. 294, ¶ 10 (2014) (holding that an agency’s 

placement of an employee on enforced leave for more than 14 days constitutes an 

appealable suspension within the Board’s jurisdiction). She also advised the 

appellant that the Board may not have jurisdiction over his claims that the agency 

made a negative suitability determination and failed to restore/reemploy/reinstate 

him or improperly restored/reemployed/reinstated him. IAF, Tab 7 at 2-3. The 

appellant did not respond to the agency’s motion to dismiss the appeal as moot or 

either of the administrative judge’s show cause orders. 

¶5 In an initial decision based on the written record, the administrative judge 

dismissed the suspension appeal as moot. IAF, Tab 8, Initial Decision (ID) at 1, 

4-5. She found that the agency’s evidence showing that it paid the appellant for 

the days he was in a nonpay status and placed him on administrative leave was 

undisputed. ID at 4. She also found that the Board does not have jurisdiction 

over the appellant’s allegations of a negative suitability determination and a 

failure to restore or reinstate him. ID at 2-4.

¶6 The appellant has filed a petition for review of the initial decision. Petition 

for Review (PFR) File, Tab 1. The agency has filed several responses. PFR File, 

Tabs 3, 5, 7-8.
4

The appellant showed good cause for his untimely filed petition for review.

¶7 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). 

Because the initial decision was issued on August 19, 2014, the petition for 

review was due by September 23, 2014. ID at 1, 5. The appellant filed his 

petition for review 1 day late on September 24, 2014. PFR File, Tab 1; see PFR 

File, Tab 2 at 1. Concurrent with his petition for review, the appellant filed a 

motion to accept his untimely petition for review. PFR File, Tab 1 at 8. 

¶8 The Board will waive the time limit for filing a petition for review only 

upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To 

establish good cause for the untimely filing of an appeal, 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 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).

¶9 In his sworn motion to waive the time limit, the pro se appellant claims that 

good cause exists for the delay in filing his petition for review because he “was 

under the impression that the agency was going to make him whole by back 

paying him.” PFR File, Tab 1 at 8. The agency has not opposed the appellant’s 

motion and concedes that the pay adjustments had unexpectedly not been properly 

processed by the filing deadline. PFR File, Tab 5 at 5. Given the appellant’s pro 
5

se status and the minimal length of a 1-day delay, we find that the appellant has 

shown good cause for the filing delay under the circumstances and waive the 

filing deadline. See Fitzpatrick v. Department of State, 71 M.S.P.R. 318, 320-21 

(1996) (a pro se appellant’s misconstruction of the filing period was a reasonable 

excuse for his 1-day delay in filing his appeal). 

The administrative judge properly dismissed the appeal as moot.

¶10 In his petition for review, the appellant does not dispute the administrative 

judge’s finding that the Board lacks jurisdiction over this matter as a negative 

suitability determination or restoration appeal. See ID at 2-4. Instead, he argues 

that the administrative judge improperly dismissed his suspension appeal as moot 

because the agency has not afforded him all the relief to which he would be 

entitled had he prevailed. PFR File, Tab 1 at 4-6. Specifically, he alleges that, as 

of the date of the petition for review filing deadline, the agency has not paid him 

for the period of enforced leave from May 1, 2014, to May 29, 2014. Id. at 5. He 

also claims that the agency refused to release his clock ring sheets in a timely 

manner and asserts that the documents he submits on review were not available 

before the record closed. Id. at 3. To support his assertion that he has not been 

paid for the relevant dates, the appellant submits copies of TACS AdjustPay 

adjustment certifications, employee earnings statements, and clock ring reports. 

Id. at 9-29.

¶11 In response to the appellant’s petition for review, the agency concedes that 

the appellant was not made whole by the time of the filing deadline. PFR File, 

Tab 5 at 5 (“After conducting an investigation, it appears—for reasons 

unknown—that the Postal Service’s requested adjustments had not been properly 

processed.”). Specifically, the agency obtained copies of pay journals revealing 

that the appellant had not been fully paid for the relevant time period. Id. at 8-19; 

see id. at 5-6. Next, the agency requested that further adjustments be made. See 

id. at 6. The agency obtained pay journals showing that the appellant was still 

due 8 hours of pay for three pay periods. Id. at 20-21; see id. at 6. The agency 
6

then submitted Form 2240s requesting that the appellant be paid these missing 

24 hours of pay. Id. at 22-24; see id. at 6. The agency now submits pay journals 

showing that the appellant has been paid the missing 24 hours during the relevant 

pay periods. PFR File, Tab 7 at 8-9, Tab 8 at 5-6. The agency argues that,

because it has since paid the appellant for the period from May 1, 2014, through 

May 29, 2014, the appeal should be dismissed as moot. PFR File, Tab 7 at 4-7, 

Tab 8 at 4. The appellant has not filed a reply to the agency’s responses.

¶12 The Board’s jurisdiction is determined by the nature of an agency’s action 

against a particular appellant at the time an appeal is filed with the Board, and an 

agency’s unilateral modification of its action after an appeal has been filed cannot 

divest the Board of jurisdiction unless the appellant consents to such divestiture 

or unless the agency completely rescinds the action being appealed. Himmel v. 

Department of Justice, 6 M.S.P.R. 484, 486 (1981); see Vidal v. Department of 

Justice, 113 M.S.P.R. 254, ¶ 4 (2010). When an agency cancels or rescinds an 

action after the action has been appealed, the Board may dismiss the appeal as 

moot. Vidal, 113 M.S.P.R. 254, ¶ 4. For an appeal to be rendered moot, an 

appellant must receive all of the relief that he could have received if the matter 

had been adjudicated and he had prevailed. Id. An agency’s expression of its 

intent to provide such relief is not sufficient to establish that the appeal is moot. 

Id. An appeal is not truly moot until all appropriate relief has been provided. Id.

¶13 Because the agency’s evidence shows that the appellant has been paid for 

the period of enforced leave, we find that the appellant has been afforded all the 

relief to which he would have been entitled had he prevailed on his suspension 

appeal. See PFR File, Tabs 7-8. Therefore, we find that the appellant’s appeal is 

moot.
7

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

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 
8

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