UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHELLE Y. ANDERSON,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

SF-0353-16-0528-I-2

DATE: January 20, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Michelle Y. Anderson, Los Angeles, California, pro se.

Catherine V. Meek, Esquire, Long Beach, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

sustained the agency’s denial of her request for restoration. For the reasons 

discussed below, we DENY the appellant’s petition for review, VACATE the 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

initial decision, and DISMISS the appeal as untimely filed without good cause 

shown.

BACKGROUND

¶2 On December 1, 2015, the appellant filed a formal complaint of 

discrimination in which she alleged that the agency discriminated against her on 

the basis of race, color, sex, age, and disability and retaliated against her for her 

prior equal employment opportunity (EEO) activity when, beginning on July 28,

2015, it denied her a reasonable accommodation and did not allow her to work 

because there was no work available within her medical restrictions. Anderson v. 

U.S Postal Service, MSPB Docket No. SF-0353-16-0528-I-I, Initial Appeal File 

(IAF), Tab 8 at 21. On April 12, 2016, the agency issued its final agency 

decision (FAD) in which it found that the appellant did not prove that she was 

subjected to discrimination and notified her that she had the right to file a Board 

appeal within 30 days of her receipt of the FAD. Id. at 21-46. The agency has 

provided evidence that the FAD was delivered to the appellant’s address on

April 15, 2016. Id. at 47.

¶3 On May 27, 2016, the appellant mailed the instant Board appeal via 

certified mail and asserted that she had received the FAD on April 25, 2016. IAF,

Tab 1 at 2, 7. Without addressing the timeliness issue, the administrative judge 

found jurisdiction, conducted a hearing, and determined that the agency’s 

decision not to fully restore the appellant during the periods from July 28 to 

October 3, 2015, and from November 8, 2015, to June 30, 2016, was not arbitrary 

and capricious. Anderson v. U.S Postal Service, MSPB Docket No. SF-0353-16-

0528-I-2, Refiled Appeal File (RAF), Tab 15, Tab 36, Initial Decision (ID)

at 6-17. She also found that the appellant did not prove her claims of retaliation

for filing a grievance or engaging in EEO activity or her discrimination claims 

based upon sex, age, or disability. ID at 17-24.
3

¶4 The appellant has filed a petition for review along with a supplement to the 

petition, the agency has responded in opposition to her petition, and the appellant 

has replied. Anderson v. U.S Postal Service, MSPB Docket No. SF-0353-16-

0528-I-2, Petition for Review (PFR) File, Tabs 1, 3, 6, 9. 2 

¶5 On August 3, 2018, the Office of the Clerk of the Board issued a show 

cause order stating that the appeal appeared to be untimely and requesting that the 

parties provide the Board with any evidence and argument regarding whether the 

appeal was timely or whether there is good cause for the delay. PFR File, Tab 11 

at 4. The order provided that the appellant must file her response within 20 days 

of its issuance and that the agency’s response must be filed within 20 days of the 

date of service of the appellant’s response. Id. at 4-5. The appellant timely 

 

2 With her petition, the appellant has submitted agency policies and training materials 

regarding injury compensation, reasonable accommodation, and absence without leave 

(AWOL), including sample forms and reference materials, and a November 2016 leave 

request. PFR File, Tab 1 at 27-84. In the supplement to her petition, she has submitted 

a September 2017 letter to a claims examiner stating that, although the office denied her 

claim for compensation on the basis that her time reflected that she was AWOL, the 

time had since been changed to leave without pay status; the position descriptions of a 

Claims and Inquiry Clerk and Mail Rewrapper; a portion of a glossary of agency terms;

and a September 2017 summary of a step 2 grievance meeting in which the appellant’s 

grievance challenging her conversion to an “unassigned regular” was denied. PFR File, 

Tab 3 at 2-7, 17. She also has submitted an August 9, 2017 letter stating that she was 

awarded a bid job with a retroactive effective date in September 2009, August 2017 

medical documents, and an August 20, 2017 grievance form, all of which were created

after the record closed below on June 7, 2017, but before the August 30, 2017 initial 

decision. Id. at 8-16; ID at 1. Additionally, she has submitted a motion to supplement 

the record with her statement that, in October 2017, the agency provided work to 

limited-duty employees that included the same duties that she had requested to perform. 

PFR File, Tab 4 at 3-4. We do not consider this evidence and deny the appellant’s 

motion because the evidence is either not new or is not material to the dispositive issues 

in this appeal. See Cleaton v. Department of Justice, 122 M.S.P.R. 296, ¶ 7 (2015)

(stating that the Board generally will not consider evidence submitted for the first time 

on review absent a showing that the documents and the information contained in the 

documents were unavailable before the record closed below despite due diligence an d 

the evidence contained therein is of sufficient weight to warrant an outcome different 

from that of the initial decision), aff’d, 839 F.3d 1126 (Fed. Cir. 2016). To the extent 

that the appellant is seeking Board review of alleged denials of restoration arising 

subsequent to June 30, 2016, she may wish to file a new Board appeal. We express no 

opinion as to the timeliness of any such appeal.
4

mailed her response on August 23, 2018. PFR File, Tab 12; see 5 C.F.R. 

§ 1201.4(l). The agency timely replied to the response on September 12, 2018. 

PFR File, Tab 13.

DISCUSSION

¶6 When an appellant has filed a timely formal complaint of discrimination 

with the agency, a subsequent Board appeal must be filed within 30 days after the 

appellant receives the agency’s FAD. 5 C.F.R. § 1201.154(b); see Little v. U.S.

Postal Service, 124 M.S.P.R. 183, ¶ 7 (2017). Generally, if a party does not 

submit an appeal within the applicable time limit, it will be dismissed as untimely 

filed unless there is a good cause for the delay. See Little, 124 M.S.P.R. 183, 

¶ 10; 5 C.F.R. § 1201.22(c). An appellant must prove, by preponderant evidence, 

that her appeal was timely filed. 3 5 C.F.R. § 1201.56 (b)(2)(i)(B).

¶7 In light of the above, we find that the appeal is untimely filed. The 

agency’s FAD notified the appellant that she had 30 days to file a Board appeal. 

IAF, Tab 8 at 44. She was required to submit her Board appeal within 30 days of 

receiving the decision. 5 C.F.R. § 1201.154(b). The agency submitted evidence

that the appellant received the FAD on April 12, 2016. IAF, Tab 8 at 47. 

However, the appellant asserted in her initial appeal that she had received the 

FAD on April 25, 2016. IAF, Tab 1 at 2. Even accepting the appellant’s 

assertion regarding the receipt date as true, her appeal would still be untimely. 

The date of filing by mail is determined by the postmark date. 5 C.F.R.

§ 1201.4(l). Here, her appeal was postmarked May 27, 2016. IAF, Tab 1 at 7. 

Accordingly, we find that she did not file her appeal within 30 days of receipt. 

Instead, she mailed it 32 days after April 25, 2016, when she asserts that she 

received the FAD, or 45 days after the agency evidence indicates that she 

 

3

Preponderant evidence is the degree of relevant evidence that a reasonable person, 

considering the record as a whole, would accept as sufficient to find that a contested 

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
5

received it. IAF, Tab 1 at 7, Tab 8 at 47. Thus, even accepting her argument 

regarding the receipt date as true, her appeal was untimely filed by at least 

2 days.

¶8 We also find that the appellant did not establish good cause for her delay in 

filing. To establish good cause for the untimely filing of an appeal, a party must 

show that she exercised due diligence or ordinary prudence under the particular 

circumstances of the case. See Little, 124 M.S.P.R. 183, ¶ 10. In determining 

whether the appellant has established good cause for an untimely appeal, the 

Board will consider such factors as the length of the delay, the reasonableness of 

her excuse and her showing of 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 unfavorable 

casualty or misfortune which similarly shows a causal relationship to her inability 

to timely file her claim. Id.

¶9 In her response to the show cause order, the appellant states that, after she 

received the notice of her right to file on April 25, 2018, she tried several times to 

contact her union representative and that she was not familiar with the Board’s 

procedures. PFR File, Tab 12 at 2-3. Further, she states that she cannot afford 

representation. Id. at 3. She also states that, although she was not hospitalized, 

she was ill. Id.

¶10 A lack of familiarity with the Board’s administrative practices does not 

constitute good cause for waiver of the Board’s timeliness requirements. See 

Mata v. Office of Personnel Management, 53 M.S.P.R. 552, 554-55, aff’d,

983 F.2d 1088 (Fed. Cir. 1992) (Table). Additionally, a party’s inability to 

obtain counsel does not establish good cause for an untimely filing. See Innocent 

v. Office of Personnel Management, 108 M.S.P.R. 453, ¶ 10, aff’d, 296 F. App’x. 

925 (Fed. Cir. 2008) (per curiam). Further, the appellant has not described how 

her illness prevented her from filing her appeal. See Alford v. Office of Personnel 

Management, 108 M.S.P.R. 414, ¶ 10 (2008) (stating that a doctor’s statement 
6

that the appellant was under his care did not establish good cause for her untimely 

petition for appeal based on illness, when the statement contained no explanation 

as to how the medical condition prevented her from filing a timely appeal). Even

considering the appellant’s pro se status, we find that the appellant has not 

presented evidence of due diligence or the existence of circumstances beyond her 

control that affected her ability to file her appeal such that we should waive the 

filing deadline. See Gonzalez v. Department of Veterans Affairs, 111 M.S.P.R. 

697, ¶ 11 (2009) (stating that the Board has consistently denied a waiver of the

filing deadline if a good reason for the delay is not shown, even when the delay is 

minimal and the appellant is pro se). 

¶11 Accordingly, we find that the appellant has not established good cause for 

her filing delay. See Schuringa v. Department of the Treasury, 106 M.S.P.R. 1, 

¶¶ 9, 14 & n.* (2007) (declining to excuse a 4-day delay in filing an appeal when

the pro se appellant’s submissions did not support a finding that she was 

medically prevented from timely filing her appeal or from requesting an extension 

of time). 

¶12 Thus, we vacate the initial decision and instead dismiss this appeal as 

untimely filed without a showing of good cause for the delay. See, e.g., Dotson v. 

U.S. Postal Service, 41 M.S.P.R. 412, 413-16 (1989) (affirming the initial 

decision that dismissed the appeal as untimely by 1 day), aff’d, 895 F.2d 1420 

(Fed. Cir. 1990) (Table). This is the final decision of the Merit Systems 

Protection Board in this appeal. Title 5 of the Code of Federal Regulations, 

section 1201.113(c) (5 C.F.R. § 1201.113(c)).
7

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
8

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

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

after your representative receives this decision. 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 
9

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. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 
10

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
11

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

 

 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board