UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LYNN M. DAVIS,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

SF-0432-12-0763-I-1

DATE: September 29, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL∗

Keith Goffney, Esquire, Los Angeles, California, for the appellant.

Carolyn Beth Chen, San Francisco, California, 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 

affirmed the agency’s removal action. 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 ∗ A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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). 
2

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 Effective August 10, 2012, the agency removed the appellant based on 

alleged unacceptable performance in her position as a Legal Assistant, Case 

Technician. Initial Appeal File (IAF), Tab 5, Subtab 4a at 3. On September 6, 

2012, the appellant filed a Board appeal alleging, among other things, that the 

agency’s allegations regarding her performance were false and that the agency 

removed her in reprisal for her prior equal employment opportunity activity. IAF,

Tab 1 at 1, 3. 

¶3 On August 19, 2013, the administrative judge issued an initial decision 

affirming the agency’s removal action. IAF, Tab 49, Initial Decision (ID). He 

found that the agency met its burden of showing that the appellant’s performance 

was unacceptable and that the appellant failed to meet her burden of proof on her 

affirmative defense of retaliation. ID at 12-27, 28-30. The administrative judge

noted that the initial decision would become final unless a petition for review was 

filed by September 23, 2013. ID at 30. 

¶4 On September 23, 2013, the appellant filed a motion for an extension of 

time to file her petition for review. Petition for Review File (PFR File), Tab 1. 

The Office of the Clerk of the Board granted the appellant’s request and provided 

the appellant until October 23, 2013, to file her petition for review. PFR File,

Tab 2. On October 23, 2013, the appellant filed an additional request for an 

extension of time to file her petition for review, PFR File, Tab 3, which the Clerk 

granted until November 27, 2013, PFR File, Tab 4. On November 27, 2013, the 

appellant filed a third motion for an extension of time, PFR File, Tab 5, which the 

Clerk granted until December 27, 2013, PFR File, Tab 6. On December 27, 2013, 

the appellant requested a fourth extension of time to file her petition for review. 

PFR File, Tab 7. The Clerk granted the appellant’s request until January 27, 

2014, and advised the appellant’s representative, who had filed each of the 

previous requests and also represented the appellant below, that the Board would 

not grant any further extensions in the matter. PFR File, Tab 8; IAF, Tab 1 at 7. 
3

¶5 On January 28, 2014, 1 day after the deadline established by the Clerk, the 

appellant filed a petition for review via U.S. mail. PFR File, Tab 9. Because the 

petition for review was more than 30 pages long, the Clerk rejected the pleading 

and, by notice dated February 4, 2014, provided the appellant an opportunity to 

perfect her pleading by February 24, 2014. Id. The Clerk additionally informed 

the appellant that the Board may dismiss her petition for review as untimely filed 

unless she submitted a motion showing that her petition for review was timely 

filed or that good cause existed for the filing delay. Id. The Clerk enclosed with 

the notice a “Motion to Accept Filing as Timely and/or to Ask the Board to Waive 

or Set Aside the Time Limit.” Id. The Clerk’s notice afforded the appellant until 

February 24, 2014, to file that motion. Id.

¶6 On February 24, 2014, the appellant filed a perfected petition for review. 

PFR File, Tab 10. On February 25, 2014, 1 day after the deadline established by 

the Clerk, the appellant filed a motion to accept the petition for review as timely 

filed. PFR File, Tab 12 (see postmarked envelope at back of tab). In the motion, 

the appellant’s representative claims that his local post office closed unexpectedly 

early on January 27, 2014, the due date for the petition for review, which 

prompted him to use Federal Express instead to mail the pleading. Id. at 1. He 

attaches a Federal Express order form dated January 27, 2014. Id. at 5. He 

does not attempt to explain the untimely filing of the motion itself. 

¶7 On March 17, 2014, the agency filed a request for an extension of time to 

file its response to the appellant’s petition for review, which the Clerk granted 

until April 21, 2014. PFR File, Tabs 14-16. On April 21, 2014, the agency 

timely filed its response. PFR File, Tab 17. After the deadline to file a reply, the 

appellant requested an extension of time to file her reply to the agency’s 

response, PFR File, Tab 21, which the Clerk denied, PFR File, Tab 22. Despite 

the denial, the appellant filed a reply to the agency’s response, which we have not 

considered. PFR File, Tab 23.
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 Upon receipt of the appellant’s fourth request for an extension of time, the 

Clerk granted the appellant until January 27, 2014, to file her petition for review. 

PFR File, Tabs 7-8. The appellant did not file her petition for review, however, 

until January 28, 2014. PFR File, Tab 9; see 5 C.F.R. § 1201.4(l) (when a 

document is filed with the Board by mail, the postmark date is the filing date). In 

an untimely-filed motion, the appellant asks that the Board accept her petition for 

review as timely filed. PFR File, Tab 12. The appellant’s representative claims 

in a sworn statement that, because his local post office closed unexpectedly early 

on the day the filing was due, he deposited the package for delivery with Federal 

Express instead. Id. at 3. 

¶9 Even if we were to consider the appellant’s late-filed motion, the appellant 

has failed to meet her burden of showing that her petition for review was timely 

filed. 5 C.F.R. § 1201.56(a)(2)(ii). Although the appellant attaches a Federal 

Express order form dated January 27, 2014, there is no indication on the form that 

the order was processed for delivery by Federal Express either that day or any 

day. PFR File, Tab 12 at 5. In addition, the appellant has not attached a receipt, 

a tracking report, or any other form from Federal Express to show that the 

appellant indeed deposited her petition for review with Federal Express for 

delivery before the filing deadline. Finally, and significantly, nothing contained 

in the appellant’s submission adequately explains the reason her petition for 

review had a January 28, 2014 postmark from the U.S. Postal Service if she 

submitted the petition for review for delivery to the Board to Federal Express on 

January 27, 2014. Id. at 1, 3. 

¶10 Statements made under the penalty of perjury are entitled to little weight if 

they are inherently incredible or if they are disputed or rebutted by other 

evidence. See Price v. U.S. Postal Service, 98 M.S.P.R. 25, ¶ 9 (2004), aff’d, 

137 F. App’x 335 (Fed. Cir. 2005). Here, considering the evidence presently 

before us, the appellant’s representative’s assertion that he mailed the petition for 
5

review via Federal Express on January 27, 2014, simply is not credible. 

Accordingly, we find that the appellant has failed to establish that she filed a 

timely petition for review. Cf. Raphel v. Department of the Army, 50 M.S.P.R. 

614, 618 (1991) (a party may establish that his pleading was timely filed by 

presenting credible, unrebutted evidence in the form of an affidavit or sworn 

statement that, despite the postmark date, the pleading was actually placed in the 

U.S. Postal Service mail stream before the filing deadline). 

¶11 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. §§ 1201.113(d), 

1201.114(f). The party who submits an untimely petition for review has the 

burden of establishing good cause for the untimely filing by showing that she 

exercised due diligence or ordinary prudence under the particular circumstances 

of the case. Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014). 

To determine whether a party has shown good cause, the Board will consider the 

length of the delay, the reasonableness of the excuse, and the party’s 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 

which similarly shows a causal relationship to her inability to timely file her 

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). 

¶12 Here, the appellant alleges that the local post office closed unexpectedly 

early on January 27, 2014. PFR File, Tab 12 at 1, 3. However, when an appellant 

delays the filing of her petition for review until the eleventh hour, the appellant 

bears the risk that unforeseen circumstances could prevent the timely filing of her

petition. Baker v. Department of Justice, 41 M.S.P.R. 25, 27 (1989). Also, given 

that she filed an untimely petition for review after receiving numerous extensions 

of time to do so, and that she filed an untimely motion to accept her petition for 

review as timely filed, we find that the appellant has not demonstrated that she 
6

exercised due diligence or ordinary prudence in the matter. See Palermo, 

120 M.S.P.R. 694, ¶¶ 6-9. Further, although the appellant’s 1-day filing delay 

was minimal, see Coleman v. Department of the Treasury, 88 M.S.P.R. 266, ¶ 8 

(2001), she must nevertheless show good cause for the delay in order for the 

Board to waive the filing deadline, see Beckley v. U.S. Postal Service, 

43 M.S.P.R. 397, 399 (1990). Based on the foregoing, we find that the appellant 

has not shown good cause for the filing delay. 

¶13 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 removal appeal. 

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
7

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 

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. § 2000e5(f) and 

29 U.S.C. § 794a. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board