# Davola Sutton v. U.S. Postal Service

> Merit Systems Protection Board · January 22, 2026

URL: https://www.frixlaw.com/law-library/cases/11245368

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 22, 2026
- **Precedential status:** Unpublished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

DAVOLA SUTTON, DOCKET NUMBER
Appellant, PH-0752-14-0587-I-1

v.

U.S. POSTAL SERVICE, DATE: January 22, 2026
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Davola Sutton , Lansdowne, Pennsylvania, pro se.

Daniel C. Carleton , Esquire, Philadelphia, Pennsylvania, for the agency.

Krista Irons , St. Louis, Missouri, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as settled. For the reasons set forth below, the appellant’s
petition for review is DISMISSED as untimely filed without good cause shown
for the delay. See 5 C.F.R. § 1201.114(e), (g).

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND
The appellant filed a March 10, 2014 appeal alleging that the agency
constructively suspended her for more than 14 days from her EAS-17 Supervisor,
Distribution Operations position. Initial Appeal File (IAF), Tab 1 at 2, 9. While
the case was pending before the administrative judge, the parties submitted a
signed, written settlement agreement and requested that the agreement be entered
into the record for enforcement purposes. IAF, Tab 11. The administrative judge
thereafter dismissed the appeal as settled in a June 5, 2014 initial decision. IAF,
Tab 14, Initial Decision (ID) at 1-2. She found that the conditions for entering
the agreement into the record for enforcement had been met, the agreement was
voluntarily entered into and understood by the parties, and the provisions of the
agreement were legal and enforceable. Id. The initial decision stated that any
petition for enforcement of the settlement agreement had to be filed within a
reasonable period of time after discovery of the asserted noncompliance, and that
a petition for review of the initial decision had to be filed by July 10, 2014, or the
initial decision would become final. ID at 3.
The appellant has filed a June 12, 2024 request to void the settlement
agreement, which the Clerk of the Board has treated as a petition for review. 2
Petition for Review (PFR) File, Tab 1 at 1, 34. The Clerk of the Board informed
the appellant that her petition for review was untimely filed and afforded her an
opportunity to file a motion to accept the filing as timely or waive the time limit
for good cause shown. PFR File, Tab 2 at 1-2. The appellant has not filed a

2
Although the request was initially filed with the regional office, the administrative
judge confirmed with the appellant that she was not filing a petition for enforcement of
the settlement agreement but was instead filing a petition for review of the initial
decision seeking to void the settlement agreement. Sutton v. U.S. Postal Service, MSPB
Docket No. PH-0752-14-0587-C-1, Initial Decision (Aug. 6, 2024). The administrative
judge, therefore, dismissed the petition for enforcement, id., and neither party filed a
petition for review of that initial decision. The Clerk of the Board docketed the
submission as a petition for review in this case. Petition for Review File, Tab 2.
3

response to the timeliness notice from the Clerk of the Board, and the agency has
not filed a response to the petition for review.

ANALYSIS
A petition for review must generally be filed within 35 days after the date
of issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
30 days after the date the appellant received the initial decision.
5 C.F.R. § 1201.114(e). The Board will waive this time limit only upon a
showing of good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good
cause, a party must show due diligence or ordinary prudence under the particular
circumstances of the case. Rivera v. Social Security Administration,
111 M.S.P.R. 581, ¶ 4 (2009). To determine whether an appellant has shown
good cause, the Board will consider the length of the delay, the reasonableness of
any excuse and any showing of due diligence, whether the appellant is proceeding
pro se, and whether there is evidence of the existence of circumstances beyond
the appellant’s control that affected the ability to comply with the time limit or of
unavoidable casualty or misfortune that similarly shows a causal relationship to
an inability to timely file the petition. Id.
The deadline for filing a petition for review in this case was July 10, 2014.
The appellant has not alleged on review that she received the initial decision
more than 5 days after the initial decision was issued. Thus, we find that she
filed her petition for review nearly 10 years late.
Such a filing delay is significant. See Brockman v. Department of Defense,
108 M.S.P.R. 490, ¶ 8 (2008) (finding that a filing delay of over 9 years was
significant). The appellant did not respond to the notice from the Clerk of Board
affording her an opportunity to show good cause for the filing delay. In her
petition for review, the appellant has not offered any explanation for the lengthy
delay; thus, she has not shown that she acted with due diligence or ordinary
4

prudence in filing her petition for review. See, e.g., Rothlisberger v. Department
of the Army, 113 M.S.P.R. 450, ¶ 6 (2010). Moreover, her pro se status alone
does not excuse such a lengthy delay. See Stoute v. Department of the Navy,
102 M.S.P.R. 311, ¶ 8 (2006).
Based on the analysis set forth above, we dismiss the petition for review as
untimely filed without good cause shown for the delay. This is the final decision
of the Merit Systems Protection Board concerning the timeliness of the
appellant’s petition for review. The initial decision remains the final decision of
the Board concerning the merits of the appeal. 5 C.F.R. § 1201.113(c).

NOTICE OF APPEAL RIGHTS 3
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.

3
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.
5

(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:
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
6

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
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:
7

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
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. 4 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

4
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.
8

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.
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/11245368. Public record. Not legal advice.