UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LAWRENCE W. PASSIATORE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

NY-0752-09-0124-I-1

DATE: September 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL*

Lawrence W. Passiatore, Thornwood, New York, pro se.

Donald Spector, Esquire, New York, New York, 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 involuntary retirement appeal for lack of jurisdiction. 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). 

 

* A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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¶2 The appellant is a retired Manager of Customer Service. Initial Appeal File 

(IAF), Tab 1 at 2. In February 2009, he filed a Board appeal alleging that his 

retirement was involuntary. Id. at 4. In June 2009, the administrative judge 

issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 

13, Initial Decision.

¶3 In April 2014, the appellant filed a petition for review, in which he alleges

that he did not receive the initial decision until November 2013. Petition for 

Review (PFR) File, Tab 1. He also alleges that his former attorney closed his 

practice in August 2010. Id. In response to a notice from the Clerk of the Board 

regarding the timeliness of his petition for review, the appellant further alleges

that he was hospitalized and suffers from certain medical issues. PFR File, Tab 3. 

In response, the agency argues that the appellant failed to establish that his 

petition for review was timely filed or that good cause existed to waive the 

applicable time limit. PFR File, Tab 4 at 6-7.

¶4 Absent good cause for delay, a petition for review must be filed within 35 

days after the issuance of the initial decision, or within 30 days after the date the 

appellant received the initial decision, if the appellant shows that the initial 

decision was received more than 5 days after the date of issuance. 5 C.F.R. 

§ 1201.114(e). The Board will waive its filing deadline only upon a showing of 

good cause for the delay in filing. Minor v. Department of the Air Force, 

109 M.S.P.R. 692, ¶ 4 (2008). 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. Id. The length of delay is a consideration in 

every good cause determination. Stolarczyk v. Department of Homeland Security,

119 M.S.P.R. 343, ¶ 7 (2012). Additionally, lack of representation does not 

establish good cause for a delay in filing a petition for review. Minor, 

109 M.S.P.R. 692, ¶ 8. An appellant may, however, establish good cause for a 

delay in filing based upon illness. To establish good cause based upon illness, 
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the party must identify the time period during which he suffered from the illness, 

support his allegation with corroborating medical or other evidence, and explain 

how the illness prevented him from timely filing his petition or requesting an 

extension of time. Sanders v. Department of the Treasury, 88 M.S.P.R. 370, ¶ 7 

(2001).

¶5 Assuming arguendo that the appellant did not receive the initial decision 

until November 2013, he has not met his burden of establishing good cause for 

the lengthy delay in filing a petition for review or requesting an extension. 

Although the appellant has stated that his attorney left private practice in August 

2010, PFR File, Tab 1, this does not excuse the appellant’s untimely filing,

Minor, 109 M.S.P.R. 692, ¶ 8. The appellant also has not established good cause 

based upon illness because he has not corroborated his allegations of 

hospitalization and illness with evidence or explanation as to how his medical 

condition prevented him from timely filing a petition for review or requesting an 

extension. Sanders, 88 M.S.P.R. 370, ¶ 7. Specifically, the appellant stated in 

his motion to waive the time limit for filing his petition for review that he did not 

have any evidence or documents to support his request. PFR File, Tab 3 at 1. 

Although the appellant has provided some description of his medical condition, 

he has not presented specific argument as to how his medical condition prevented 

him from filing the petition for review until April 2014, approximately 5 months 

after he stated he received the initial decision. PFR File, Tabs 1, 3. We therefore 

find that the appellant has not met his burden of establishing good cause for the 

delay in filing his petition for review. 

¶6 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 involuntary retirement appeal.
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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 
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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