NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

WILLIE E. TATUM, JR., 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2011-3233 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. DA0752100569-I-1. 

__________________________ 

Decided: May 10, 2012 

___________________________ 

WILLIE E. TATUM, JR. of Fort Worth, Texas, pro se. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, for respondent. With him on the brief were JAMES M.

EISENMANN, General Counsel, and KEISHA DAWN BELL, 

Deputy General Counsel. 

__________________________ 

Before DYK, SCHALL, and REYNA, Circuit Judges. 
TATUM v. MSPB 2

PER CURIAM.

Willie E. Tatum, Jr. (“Tatum”) petitions for review of 

a decision of the Merit Systems Protection Board 

(“Board”). The Board dismissed his appeal as untimely. 

Tatum v. U.S. Postal Serv., No. DA-0752-10-0569-I-1 

(M.S.P.B. July 27, 2011) (“Board Decision”). We vacate 

and remand. 

BACKGROUND

Tatum is a veteran with a service-connected disability, which makes him a “preference eligible” veteran 

under 5 U.S.C. § 2108(3)(C). Tatum began work with the 

U.S. Postal Service (“the agency”) in April 2006, where he 

was employed as a mail processing clerk. In January 

2008, Tatum began mental health treatment for posttraumatic stress disorder (“PTSD”). On December 4, 

2009, the agency mailed a notice of removal for “Unsatisfactory Attendance” to Tatum’s address of record from his 

most recent PS 50, on Brady Court in Arlington, Texas. 

Resp’t’s App. 39. The removal notice stated that “[a]s a 

preference eligible, [Tatum] ha[d] the right to appeal this 

decision in writing to the [Board] within 30 calendar days 

from the effective date of this decision,” which was December 18, 2009. Id. at 40-41. As described below, this 

advice was inaccurate. Under the regulation, Tatum had 

until 30 days after the effective date or 30 days after 

receipt of the removal notice, whichever was later. See 5 

C.F.R. § 1201.22(b)(1). 

Tatum did not file a grievance challenging his removal until April 9, 2010. On July 7, 2010, he filed an 

appeal with the Board. The administrative judge instructed Tatum to file evidence that his appeal was timely 

filed or that good cause existed for the delay. Tatum 
3 TATUM v. MSPB

claimed that he first became aware of his December 2009 

separation in March 2010, that he was hospitalized for 

PTSD treatment from April 2010 until June 18, 2010, and 

that he filed his Board appeal immediately after his union 

president told him that he should. In response, the 

agency submitted an affidavit from Natalie Stevenson, 

who declared that on December 4, 2009, the agency sent 

Tatum’s removal notice to his address of record on Brady 

Court via first-class mail with delivery confirmation and 

certified mail. The notice sent via certified mail, which 

requires a signature upon delivery, was returned unclaimed after multiple delivery attempts and notices, but 

the notice sent via first-class mail, which does not require 

a signature, was not returned to the agency and was thus 

deemed delivered. 

After consideration of this evidence, the administrative judge concluded that good cause existed for the delay. 

Tatum v. U.S. Postal Serv., No. DA-0752-10-0569-I-1, slip 

op. at 4 (M.S.B.P. Nov. 5, 2010) (“Initial Decision”). She 

found that the agency failed to prove the date it provided 

Tatum with a copy of the removal notice and notice of his 

right to file an appeal with the Board. Id. After a hearing 

on the merits, the administrative judge reversed the 

agency’s removal action and ordered that Tatum be 

restored to duty. Id. at 17. 

The Board granted the agency’s petition for review, 

vacated the administrative judge’s initial decision, and 

dismissed Tatum’s appeal as untimely filed without a 

showing of good cause. Board Decision, slip op. at 2. The 

Board stated that the Stevenson affidavit raised a presumption of delivery and receipt in December 2009, and 

that Tatum failed to rebut this presumption because his 

response was unsworn and because he “failed to sufficiently explain the timeline or circumstances surrounding 

his alleged nonreceipt.” Id., slip op. at 6-8. Additionally, 
TATUM v. MSPB 4

the Board found that even if Tatum could rebut the 

presumption of receipt, he did not demonstrate diligence 

after he learned of his right to appeal. Tatum had asserted that he appealed “immediately” after learning of 

his right to do so from his union representative, but the 

Board concluded that “if the appellant spoke to his union 

representative any time before June 7, 2010, his appeal 

remains untimely.” Id., slip op. at 9. The Board concluded that Tatum had not established good cause for his 

delay, noting that Tatum’s assertions were “vague” and 

“unsworn.” Id., slip op. at 10. 

Tatum timely appealed to this court, and we have jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

Our review of final Board decisions is limited. Under 

5 U.S.C. § 7703(c), we may only set aside agency actions, 

findings, or conclusions of law found to be “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 

The Board has jurisdiction to hear removal claims by 

only some Postal Service employees, but its jurisdiction 

includes claims by preference eligible veterans such as 

Tatum. 5 U.S.C. § 7511(a)(1)(B)(ii), (b)(8); 39 U.S.C. 

§ 1005(a)(4)(A). An appeal of an agency action to the 

MSPB “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 the appellant’s receipt of the 

agency’s decision, whichever is later.” 5 C.F.R. 

§ 1201.22(b)(1). The Board may waive this deadline if “a 

good reason for the delay is shown.” Id. § 1201.22(c). 
5 TATUM v. MSPB

The filing deadline for Tatum’s Board appeal was 

thirty days after the December 18, 2009, effective date, or 

thirty days after Tatum’s receipt of the agency’s removal 

decision, whichever was later. See 5 C.F.R. 

§ 1201.22(b)(1). As the Board stated, the declaration from 

Natalie Stevenson that the agency sent Tatum’s removal 

decision to his address of record via first-class mail in 

December 2009, and that it was not returned to the 

agency as undelivered, raises a presumption that the 

notice was delivered. Under the common law mailbox 

rule, if a properly directed letter is proved to have been 

delivered to the post office, this creates an “inference of 

fact” that the letter was received by the addressee. Rios 

v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). If 

there is opposing evidence that the letter was not received, the trier of fact must weigh the evidence “with all 

the other circumstances of the case” to determine whether 

the letter was actually received. Id. at 931 (quoting 

Rosenthal, 111 U.S. at 194). In this case, the Board 

concluded that Tatum failed to rebut the presumption 

because he did not explicitly claim that he did not receive 

the letter or that the address was incorrect, and we cannot conclude that this factual finding is unsupported by 

substantial evidence. 

We note, however, that the Board erred in its alternative holding that even if Tatum could rebut the presumption of receipt, his appeal was untimely because he did 

not “demonstrate that he acted diligently after he learned 

of his [appeal] right” from his union representative. 

Board Decision, slip op. at 8. If Tatum did not actually 

receive a copy of his removal decision and the notice of his 

appeal rights, then his appeal was not untimely, even if 

he learned of his appeal right from a third party. See 5 

C.F.R. § 1201.22(b)(1). As we held in Saddler v. Depart-
TATUM v. MSPB 6

ment of the Army, 68 F.3d 1357, 1359 (Fed. Cir. 1995), an 

appellant who does not receive an agency’s decision 

because of his own negligence in failing to update his 

address with the agency cannot be considered to have 

constructively received the decision for purposes of section 

1201.22—the appellant has thirty days from actual receipt of the decision to file a timely Board appeal. 

While the Board’s finding that Tatum’s appeal was 

untimely was not erroneous, we must remand for the 

Board to analyze whether good cause existed for Tatum’s 

delay in filing his appeal. The burden is on the appellant 

to establish good cause by showing that the delay was 

excusable and that he exercised due diligence. Zamot v. 

Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003). 

“[P]olicy considerations counsel against dismissals for 

untimely filing and militate for providing employees with 

a hearing on the merits of their appeals, . . . and that 

broad equitable principles of justice and good conscience 

should be applied in good cause determinations.” Walls v. 

Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) 

(citations omitted) (internal quotation marks omitted). 

We have found good cause for untimely filing where 

the agency has failed to provide proper notice of appeal 

rights. See, e.g., Toyama v. Merit Sys. Prot. Bd., 481 F.3d 

1361, 1366-67 (Fed. Cir. 2007) (notice failed to inform 

petitioner that she could appeal either to the MSPB or file 

an action in district court); Walls, 29 F.3d at 1583 (notice 

failed to specify whether the time limit was in calendar or 

working days); Shiflett v. U.S. Postal Serv., 839 F.2d 669, 

674 (Fed. Cir. 1988) (no notice of appeal rights). It appears that the December 2009 notice of decision fails to 

adequately inform Tatum of his appeal rights as required 

by 5 C.F.R. § 1201.21. The letter states that Tatum may 

file an appeal “within 30 calendar days from the effective 

date of this decision.” Resp’t’s App. 41. As discussed 
7 TATUM v. MSPB

previously, this is incorrect: Tatum could also timely file 

within 30 days of the receipt of his removal decision and 

appeal rights, even if this was more than 30 days from the 

decision’s effective date. See 5 C.F.R. § 1201.22(b)(1). 

Furthermore, section 1201.21(a) requires notice of “the 

requirements of § 1201.22(c).” That latter section states: 

If a party does not submit an appeal within the 

time set by statute, regulation, or order of a judge, 

it will be dismissed as untimely filed unless a good 

reason for the delay is shown. The judge will provide the party an opportunity to show why the 

appeal should not be dismissed as untimely. 

Id. § 1201.22(c). The December 2009 notice does not 

contain this language, and we have held that good cause 

for delay existed where, among other things, this language was omitted. See Ladrido v. Merit Sys. Prot. Bd., 

248 F. App’x 184, 186-87 (Fed. Cir. 2007) (nonprecedential). 

In finding that Tatum had not established good cause, 

the Board did not address the defective notice. A remand 

is therefore required. On remand, additional factors the 

Board should consider include, but are not limited to, 

Tatum’s PTSD treatment, his pro se status, the possibility 

that Tatum never actually read his removal notice, and 

whether the agency was prejudiced by the delay. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document 

filed pro se is to be liberally construed . . . .” (internal 

quotation marks omitted)). 

This case is remanded for further proceedings consistent with this opinion. 

COSTS

No costs.