# Selwyn Sanderson v. United States Postal Service

> Merit Systems Protection Board · June 27, 2024

URL: https://www.frixlaw.com/law-library/cases/10452832

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** June 27, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

SELWYN D. SANDERSON, DOCKET NUMBER
Appellant, SF-0752-19-0470-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: June 27, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Selwyn D. Sanderson , Houston, Texas, pro se.

Michael R. Tita , Esquire, and Roderick Eves , St. Louis, Missouri, for the
agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as untimely filed without good cause shown.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
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. 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, 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. Except as expressly MODIFIED to
consider the length of the filing delay in determining whether the appellant has
shown good cause for the untimely filing of his appeal and to consider the
potential effect of the Servicemembers Civil Relief Act of 2003 (SCRA), we
AFFIRM the initial decision.

We affirm the administrative judge’s findings that the appellant’s appeal was
untimely filed and that he has failed to show good cause for the untimely filing,
as modified to consider the length of the filing delay.
An appellant bears the burden of proving by preponderant evidence 2 the
timeliness of his Board appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). In cases such as
this removal appeal, when the appellant has filed a formal complaint of
discrimination with the agency in connection with a matter otherwise appealable
to the Board, the appeal must be filed within 30 days after he receives the agency
resolution or final decision on the discrimination issue. Brown v. U.S. Postal
Service, 106 M.S.P.R. 12, ¶ 8 (2007); 5 C.F.R. § 1201.154(b)(1).
For the reasons discussed in the initial decision, we agree with the
administrative judge’s finding that the appellant’s removal appeal was untimely

2
A preponderance of the 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).
3

filed. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 5-6.
Specifically, the administrative judge found that the undisputed record reflects
that the appellant filed a formal equal employment opportunity (EEO) complaint
concerning his January 2016 removal and that he received the agency’s final
agency decision (FAD) on April 6, 2019. 3 ID at 6; IAF, Tab 6 at 14-25, 106-10.
The administrative judge further found that this removal appeal was due on or
before May 6, 2019, which was the 30th day after April 6, 2019. ID at 6; see
5 C.F.R. §§ 1201.23, 1201.154(b)(1). In addition, the administrative judge found
that the undisputed record reflects that the appellant electronically filed this
appeal on June 4, 2019. ID at 6; IAF, Tab 1; see 5 C.F.R. § 1201.4(l). Therefore,
the administrative judge found that this appeal was “untimely filed by at least
one day.” ID at 6.
The time limit for appealing an agency action to the Board may be waived
by the Board if the appellant demonstrates good cause for such waiver by
preponderant evidence. Walls v. Merit Systems Protection Board, 29 F.3d 1578,
1581 (Fed. Cir. 1994); see 5 C.F.R. §§ 1201.12 (providing that an administrative
judge may waive a Board regulation for good cause shown), 1201.22(c)
(providing that the Board will dismiss an untimely filed appeal unless a good
reason for the delay is shown). Although the administrative judge here correctly
discussed the factors set forth in 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), that
the Board considers in making a good cause determination, he erroneously failed
to consider the length of the filing delay. ID at 6; see Walls, 29 F.3d at 1582
(instructing the Board to consider the length of the delay in every good cause
determination). Therefore, we modify the initial decision as follows to consider

3
We defer to the agency’s implicit finding that the appellant’s EEO complaint was
timely filed. IAF, Tab 6 at 15 n.1; see Cloutier v. U.S. Postal Service, 89 M.S.P.R. 411,
¶ 6 (2001) (observing that the Board defers to the employing agency and the Equal
Employment Opportunity Commission’s determinations regarding the timeliness of
discrimination complaints).
4

the length of the filing delay in determining whether the appellant has shown
good cause for the untimely filing of his appeal.
For the reasons explained above and in the initial decision, we agree with
the administrative judge’s findings that the deadline for filing this removal appeal
was May 6, 2019, and the appellant filed this appeal on June 4, 2019. ID at 6.
Thus, we find that the length of the filing delay is 29 calendar days. We further
find that the length of the appellant’s 29-day filing delay does not weigh in his
favor because it is significant. See Summerset v. Department of the Navy,
100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing delay significant).
Considering the significant length of the delay together with the other relevant
factors addressed in the initial decision, such as the appellant’s pro se status, we
agree with the administrative judge’s finding that the appellant has failed to show
good cause for the untimely filing of his appeal. ID at 6-8; see, e.g., Allen v.
Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (finding that,
although the appellant’s pro se status was a factor weighing in his favor, it was
insufficient to excuse his unexplained, 14-day filing delay). In particular, the
administrative judge noted that the agency’s FAD expressly informed the
appellant that he had to file a Board appeal “no later than thirty (30) days of the
date of receipt of this decision.” ID at 7; IAF, Tab 6 at 24-25. Further, the
administrative judge found that the appellant did not adequately set forth any
factors addressing his ability to timely file this appeal. ID at 7.

The appellant has failed to provide a basis to disturb the initial decision.
For the first time on review, the appellant argues that he “tried to reach out
for help on this MSPB filing” from several attorneys, but they responded, “it was
too expensive, time consuming and they had a high case load.” Petition for
Review (PFR) File, Tab 1 at 4. Further, he claims that he was on a military
assignment on a “grand scale,” providing logistical support and serving as an
instructor for the Global Medic exercise. Id. at 4, 10-12. In particular, he asserts
that he was responsible for over 3 million dollars in medical supplies needed for
5

this exercise and that he collaborated with other members of his unit to create
real-world combat scenarios. Id. at 4. He argues that, after preparing for this
time-consuming exercise and while getting ready to travel, he “realized this
MSPB document” and “sent [his] response even if it was past due.” Id. In
addition, he states that he received an achievement award for the exercise and a
promotion. Id.
To support his arguments, the appellant has included the following
documentation for the first time on review: (1) a September 17, 2018 Army
memorandum contemplating revised Battle Assembly dates for fiscal year 2019;
(2) a February 20, 2019 Army order to report for 20 duty days on June 8, 2019;
(3) a March 13, 2019 Army order amending a prior order to reflect a 2-day duty
period beginning January 28, 2019; (4) a March 27, 2019 Army order to report for
13 duty days on April 14, 2019; (5) a March 29, 2019 Army order to report for
6 duty days on March 31, 2019; (6) an undated article about the June 2019 Global
Medic exercise; (7) a June 22, 2019 certificate of achievement for providing
training during the 2019 Global Medic exercise; and (8) a June 27, 2019 Army
order documenting his promotion to a higher rank effective July 1, 2019. 4
PFR File, Tab 1 at 5-15, Tab 4 at 5, Tab 5 at 9-10.
The appellant has not explained why, despite his due diligence, he was
unable to provide the arguments or evidence described above prior to when the
record before the administrative judge closed. See Banks v. Department of the
Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence); Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (finding that the Board generally will not consider evidence
submitted for the first time with the petition for review absent a showing that it
4
The appellant also has included a copy of the Office of the Clerk of the Board’s
September 12, 2019 letter acknowledging his petition for review. PFR File, Tab 2,
Tab 5 at 4-8.
6

was unavailable before the record was closed despite the party’s due diligence).
Nevertheless, even considering such arguments and evidence, we find they do not
change the outcome of this appeal for the following reasons. Cf. Brown,
106 M.S.P.R. 12, ¶¶ 3, 10, 12 (reopening the appellant’s removal appeal to
consider the SCRA’s effect on the timeliness issue when he presented for the first
time on review evidence and argument that his appeal was timely filed as a result
of his military duty).
The SCRA applies to active-duty servicemembers as well as to reserve
members of the uniformed services who are “ordered to report for military
service.” 50 U.S.C. § 3917(a); Brown, 106 M.S.P.R. 12, ¶ 13. The tolling
provision of the SCRA provides:
The period of a servicemember’s military service may not be
included in computing any period limited by law, regulation, or order
for the bringing of any action or proceeding in a court, or in any
board, bureau, commission, department, or other agency of a State
(or political subdivision of a State) or the United States by or against
the servicemember or the servicemember’s heirs, executors,
administrators, or assigns.
50 U.S.C. § 3936(a); see Neighoff v. Department of Homeland Security,
122 M.S.P.R. 86, ¶¶ 6-10 (2015) (applying the SCRA tolling provision to Board
proceedings); Brown, 106 M.S.P.R. 12, ¶¶ 12-16 (same). The Board has held that
a showing of military service under the SCRA and its predecessor the Soldiers’
and Sailors’ Civil Relief Act of 1940 (SSCRA) automatically tolls the filing
period. Neighoff, 122 M.S.P.R. 86, ¶ 10; see Brown, 106 M.S.P.R. 12, ¶ 13. The
SCRA defines “military service” in the case of a servicemember as “active duty,”
as defined at 10 U.S.C. § 101(d)(1). 50 U.S.C. § 3911(2)(A)(i); Brown,
106 M.S.P.R. 12, ¶ 13. In turn, title 10 defines “active duty” as “full-time duty in
the active military service of the United States” and includes “full-time training
duty, annual training duty, and attendance, while in the active military service, at
a school designated as a service school by law or by the Secretary of the military
department concerned.” 10 U.S.C. § 101(d)(1); Brown, 106 M.S.P.R. 12, ¶ 13.
7

Here, the Army’s March 27, 2019 order for the appellant to report for
active-duty training school for 13 duty days on April 14, 2019, suggests he
performed “active duty” service under 10 U.S.C. § 101(d)(1). 5 PFR File, Tab 4
at 5, Tab 5 at 9-10 (ordering him to “active duty training school”); cf. Brown,
106 M.S.P.R. 12, ¶ 15 (observing that the fact that “inactive-duty training” is
defined separately from “active duty” in title 10 and is not otherwise referenced
in or by the SCRA makes it likely that it does not constitute “military service”
under the SCRA). Even assuming, without deciding, that the appellant’s
attendance at active-duty training school constitutes “military service” under the
SCRA that tolled the relevant 30-day filing period for 13 days, from April 14
through 26, 2019, his Board appeal still would be 15 days untimely. Specifically,
because the 43rd day after the April 6, 2019 date on which the appellant received
the agency’s FAD fell on Sunday, May 19, 2019, the filing deadline would have
been Monday, May 20, 2019. See 5 C.F.R. §§ 1201.23, 1201.154(b)(1). Thus,
the appellant’s June 4, 2019 appeal would have been filed 15 days past the
May 20, 2019 deadline.
The appellant’s remaining Army orders concern the following duty periods:
January 28 through 29, 2019; March 31 through April 5, 2019; and June 8
through 27, 2019. PFR File, Tab 1 at 5-9. These potential periods of “military
service” under the SCRA cannot serve to toll the filing period for this Board
appeal because they did not occur during the relevant period discussed above,
from April 6 through May 20, 2019. Moreover, the appellant does not argue, and
the record does not establish, that he performed “military service” under the
5
The record before the administrative judge reflects that the appellant is a member of
the Army Reserve. IAF, Tab 6 at 84, 87, 103, 115, 120. The appellant’s claimed
periods of active-duty military service from May 2014 through March 2018 occurred
more than 1 year before he received the agency’s April 2019 FAD. ID at 7; IAF, Tab 9
at 40-41. Thus, they are not relevant to the dispositive issue of whether the appellant
timely filed this removal appeal with the Board after receiving the agency’s FAD.
Moreover, the administrative judge properly informed the appellant that he could file a
separate Board appeal under the Uniformed Services Employment and Reemployment
Rights Act of 1994. ID at 4-5.
8

SCRA on any of the monthly “Battle Assembly” dates for fiscal year 2019
contemplated in the September 17, 2018 Army memorandum. Id. at 14-15; cf.
Brown, 106 M.S.P.R. 12, ¶ 15 n.3 (noting that at least one court has determined
under the former SSCRA that regular, weekend reserve duty did not qualify as
“active duty” within the meaning of the SSCRA’s tolling provision).
In addition, we find that the appellant’s arguments and evidence submitted
on review do not show good cause for the untimely filing of his Board appeal.
Although the appellant’s pro se status is a factor weighing in his favor, see Allen,
97 M.S.P.R. 665, ¶ 8, we find that it is outweighed by the other relevant factors,
see Moorman, 68 M.S.P.R. at 62-63. In particular, a 15-day filing delay is not
minimal. See Allen, 97 M.S.P.R. 665, ¶ 8 (finding a 14-day delay not minimal).
As discussed in the initial decision, the agency’s FAD expressly informed the
appellant of the 30-day filing deadline. ID at 7; IAF, Tab 6 at 24-25. Further, the
appellant’s claims that he sought help from attorneys and was busy preparing for
the June 2019 Global Medic exercise do not establish good cause for the filing
delay. PFR File, Tab 1 at 4, 10-12; see Huskins v. U.S. Postal Service,
100 M.S.P.R. 664, ¶ 6 (2006) (stating that an appellant’s inability to retain or
afford an attorney does not establish good cause for a filing delay); see also
Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 9 (2003) (observing
that the Board has held that general personal difficulties do not constitute good
cause for waiving a filing deadline). Moreover, the appellant has not presented
any evidence of circumstances beyond his control or of unavoidable casualty or
misfortune that prevented him from timely filing his appeal. See Moorman,
68 M.S.P.R. at 63.
Accordingly, we affirm the dismissal of this removal appeal as untimely
filed without good cause shown. 6

6
The appellant’s argument on review that his case has merit and he was discriminated
against is immaterial to the dispositive timeliness issue. PFR File, Tab 1 at 4; see Dow
v. Department of Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding that the
appellant’s assertions and submissions concerning the merits of his appeal did not
9

NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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).

establish good cause for waiving the filing deadline because they did not pertain to the
timeliness issue).
7
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.
10

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:
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. 420 (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
11

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.
§ 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
12

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
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. 8 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

8
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.
13

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10452832. Public record. Not legal advice.