# Martha A. Meneses v. U.S. Postal Service

> Merit Systems Protection Board · March 4, 2026

URL: https://www.frixlaw.com/law-library/cases/11271014

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 4, 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- **Precedential status:** Unpublished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

MARTHA A. MENESES, DOCKET NUMBERS
Appellant, SF-0353-24-0706-I-1
SF-0353-25-0235-I-1
v.

UNITED STATES POSTAL SERVICE, DATE: March 4, 2026
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Guillermo Mojarro , Corpus Christi, Texas, for the appellant.

Roderick Eves , Michael Tita , and Carisa LeClair , St. Louis, Missouri,
for the agency.

BEFORE

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

FINAL ORDER

The appellant has filed petitions for review of the initial decisions, in
MSPB Docket No. SF-0353-24-0706-I-1 (0706 appeal), which denied her request
for corrective action in her restoration appeal, and SF-0353-25-0235-I-1
(0235 appeal), which dismissed her restoration appeal on the grounds of
adjudicatory efficiency. Generally, we grant petitions such as these only in the
following circumstances: the initial decision contains erroneous findings of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

material fact; 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 these appeals, we JOIN them for adjudication on review
under 5 C.F.R. § 1201.36. 2 We conclude that the petitioner has not established
any basis under section 1201.115 for granting the petition for review in her
0706 appeal. Therefore, we DENY the petition for review and AFFIRM the
initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant’s petition for review of the initial decision dismissing her
0235 appeal on the basis of adjudicatory efficiency is DISMISSED as untimely
filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND
The appellant is employed by the agency as a Clerk at the Hemet Post
Office in Hemet, California. Meneses v. U.S. Postal Service, MSPB Docket No.
SF-0353-24-0706-I-1, Initial Appeal File (0706 IAF), Tab 1 at 1. She suffered an
on-the-job injury on February 3, 2022. Id. at 7-8. The Office of Workers’
Compensation Programs (OWCP) accepted her claim for a right knee contusion,
right shoulder strain, right hip contusion, and lumbar spine sprain in connection
with her injury. Id. In April 2022, the agency offered, and the appellant

2
Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite processing of the cases and not adversely affect the interests of the
parties. Tarr v. Department of Veterans Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); 5 C.F.R.
§ 1201.36(a)(2), (b). We find that these appeals meet the regulatory criteria, and
therefore, we join them. See Tarr, 115 M.S.P.R. 216, ¶ 9.
3

accepted, a modified assignment as an “SSA/Window Clerk.” Id. at 12-13. The
limited-duty assignment reflected that the appellant’s medical restrictions
included that she should not stand, walk, bend, squat, knee bend, or climb stairs
for more than 20 cumulative minutes per hour, not climb ladders at all, and not
lift/carry/push/pull more than 10 pounds. Id. The appellant worked in this and
substantially similar limited-duty positions until July 17, 2024. Id. at 10-11,
Tab 5 at 14. On July 18, 2024, the appellant requested restoration and informed
the agency that “she need[ed] a new job offer within [her] known medical
restrictions” as permitted under the Americans with Disabilities Act and the
Rehabilitation Act of 1973. 0706 IAF, Tab 1 at 2, 28, Tab 5 at 5. 3 At some point
in July or August 2024, the agency offered the appellant a modified assignment as
an SSA with an effective date of July 22, 2024. 0706 IAF, Tab 1 at 14-15. The
appellant thereafter filed the instant restoration appeal and requested a hearing.
0706 IAF, Tab 1.
In her initial appeal, the appellant argued that the agency constructively
suspended her and denied her restoration when it forced her to work outside of
her medical restrictions from April 11, 2023, to July 17, 2024, failed to return her
to work in a position within her “known medical restrictions,” and offered her a
position that violated her medical restrictions. 0706 IAF, Tab 1 at 2, Tab 5 at 14.
With her appeal, the appellant submitted medical documentation indicating that
she suffered from an “Essential Tremor” and updating her restrictions to reflect
that she should not stand or walk for more than 10 cumulative minutes per hour;
bend, squat, knee bend, or climb stairs for more than 5 cumulative minutes per
hour; lift/carry/push/pull more than 15 pounds; and she needed to avoid using a
keyboard, a mouse, and handwriting more than 10 minutes per hour. 0706 IAF,
Tab 1 at 20-24.

3
This was the first of the appellant’s many requests for restoration and reasonable
accommodations. 0706 IAF, Tab 1 at 28-39, Tab 5 at 15-17, 20-21, Tab 36 at 34-36.
4

The administrative judge found that the appellant established jurisdiction
over the denial of restoration claim related to her status as a partially recovered
employee. 4 0706 IAF, Tab 20. After holding the appellant’s requested hearing,
the administrative judge issued a February 6, 2025 initial decision finding that
she did not prove her restoration claim as a partially recovered employee by a
preponderance of evidence. 0706 IAF, Tab 59, Initial Decision (0706 ID) at 1,
18-19, 28; 0706 IAF, Tabs 57-58, Hearing Audio (HA). In so finding, the
administrative judge determined that the appellant had established she was absent
due to a compensable injury and had requested restoration. 0706 ID at 18.
However, he concluded that she did not prove that the agency denied her request
for restoration. 0706 ID at 12-19. He also concluded that she did not establish
her affirmative defenses of discrimination and retaliation. 0706 ID at 19-28.
On January 29, 2025, just 8 days before the administrative judge issued the
initial decision in her first restoration appeal, the appellant filed a second Board
appeal again alleging that the agency violated her restoration rights when it
offered her a position outside of her known medical restrictions. Meneses v. U.S.
Postal Service, MSPB Docket SF-0353-25-0235-I-1, Initial Appeal File
(0235 IAF), Tab 1 at 1 at 2. On February 14, 2025, the agency moved to dismiss
the appeal as barred by the doctrine of collateral estoppel. 0235 IAF, Tab 7
at 4-7. The administrative judge thereafter issued an Order to Show Cause
informing the appellant that her appeal may be barred by the doctrines of
collateral estoppel or adjudicatory efficiency based on her prior restoration
appeal, apprising her of the elements and burden of proof regarding the doctrines,
and ordering both parties to respond on the applicability of the doctrines by
February 24, 2025. 0235 IAF, Tab 8. On February 26, 2025, after neither party

4
The administrative judge concluded that the Board lacked jurisdiction over the
appellant’s constructive suspension claim because, as a non-preference eligible postal
service clerk, she does not have appeal rights to the Board under 5 U.S.C. chapter 75.
0706 ID at 10; 0706 IAF, Tab 28 at 1-3. The appellant does not challenge this finding
on review, and we discern no reason to disturb this finding.
5

responded, the administrative judge issued an initial decision without holding the
appellant’s requested hearing, dismissing the appeal for lack of jurisdiction on the
grounds of adjudicatory efficiency. 0235 IAF, Tab 9, Initial Decision (0235 ID).
He reasoned that the appellant had filed a prior Board appeal challenging the
same restoration that resulted in an initial decision denying her claim, which was
subject to further review because the decision was not final. 0235 ID at 1-7.
The appellant has filed petitions for review of each initial decision.
Meneses v. U.S. Postal Service, MSPB Docket No. SF-0353-24-0706-I-1, Petition
for Review (0706 PFR) File, Tab 3; Meneses v. U.S. Postal Service, MSPB
Docket SF-0353-25-0235-I-1, Petition for Review (0235 PFR) File, Tab 3. On
March 6, 2025, the appellant requested, and the Clerk of the Board granted, an
extension of time to file a petition for review of the 0235 ID on or before May 2,
2025. 0235 PFR File, Tabs 1-2. The appellant filed her petition for review of the
0235 appeal on May 4, 2025, two days after the filing deadline. 5 0235 PFR File,
Tab 3. The Clerk of the Board issued an acknowledgment letter explaining that
the filing deadline was May 2, 2025, identifying May 4. 2025, as the filing date,
and informing the appellant that the Board’s regulations require a petition for
review that appears untimely to be accompanied by a motion to accept the filing
as timely and/or to waive the time limit for good cause, and setting a deadline for
the appellant to file such a motion. 0235 PFR File, Tab 4 at 1-2, 5-6. The agency
filed responses in opposition to each petition for review. 0706 PFR File, Tab 5;
0235 PFR File, Tab 5. The appellant filed a reply to the agency’s response in the
0235 appeal but did not respond to the acknowledgment letter. 0235 PFR File,
Tab 6.

5
In her 0235 petition for review, the appellant does not address or dispute the
administrative judge’s findings in the initial decision. 0235 PFR File, Tab 3 at 5-29.
Instead, it is the same pleading filed in her 0706 appeal. Compare id., with 0706 PFR
File, Tab 3 at 4-28.
6

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the appellant did not prove that the
agency denied her request for restoration by preponderant evidence.
The Federal Employees’ Compensation Act (FECA) and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions.
Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 9 (2016); see 5 U.S.C.
§ 8151(b). Under OPM’s regulations, such employees have different substantive
rights based on whether they have fully recovered, partially recovered, or are
physically disqualified from their former or equivalent positions. Kingsley,
123 M.S.P.R. 365, ¶ 9; 5 C.F.R. § 353.301. Partially recovered employees, like
the appellant, are those who, “though not ready to resume the full range” of
duties, have “recovered sufficiently to return to part-time or light duty or to
another position with less demanding physical requirements.” Kingsley,
123 M.S.P.R. 365, ¶ 9 (quoting 5 C.F.R. § 353.102).
OPM’s regulations require that agencies “make every effort to restore in
the local commuting area, according to the circumstances in each case, an
individual who has partially recovered from a compensable injury and who is able
to return to limited duty.” Id., ¶ 10 (quoting 5 C.F.R. § 353.301(d)). To prevail
on the merits of a restoration appeal as a partially recovered employee, an
appellant must prove by a preponderance of the evidence that: (1) she was absent
from her position due to a compensable injury; (2) she recovered sufficiently to
return to duty on a part-time basis or to return to work in a position with less
demanding physical requirements than those previously required of her; (3) the
agency denied her request for restoration; and (4) the denial was arbitrary and
capricious. Cronin v. U.S. Postal Service, 2022 MSPB 13, ¶ 12; Kingsley,
123 M.S.P.R. 365, ¶¶ 11-12; 5 C.F.R. § 1201.57(c)(4). An agency’s denial of
restoration is only arbitrary and capricious if it failed to make every effort to
7

search within the local commuting area for vacant positions to which it could
restore the employee and to consider her for any such vacancies. Cronin,
2022 MSPB 13, ¶¶ 20-21.
The administrative judge found, and the parties do not dispute, that the
appellant proved the first element of her restoration claim. 0706 ID at 12, 18.
We discern no basis to disturb this finding. He also determined that the appellant
could establish the fourth element of her claim since it was undisputed that the
agency did not search within the local commuting area for a vacant position for
the appellant. 0706 ID at 12. Nonetheless, the administrative judge concluded
that the appellant’s restoration claim failed because she had not proven by
preponderant evidence that the agency denied her request for restoration.
0706 ID at 14-19. Specifically, he found that the agency offered the appellant a
limited-duty assignment to an SSA position consistent with the medical
restrictions of her compensable injury and it had no obligation to restore her to a
position based on her non-work-related injury. Id. On review, the appellant
challenges the administrative judge’s findings. 6 0706 PFR File, Tab 3 at 4-22.
For the following reasons, we agree that the appellant did not prove her
restoration claim by preponderant evidence.

The appellant is not entitled to restoration rights under 5 C.F.R. part 353 based on
her noncompensable medical conditions.
The appellant asserts on review that the agency denied her restoration
when, according to her, it forced her to take sick leave because it did not allow
her “to work within her known medical restrictions.” 0706 PFR File, Tab 3

6
For the first time on review, the appellant has submitted a decision from OWCP’s
Branch of Hearings and Review vacating its December 30, 2024 decision denying her
wage loss claim based on her absences beginning in July 2024 and remanding the case
for further action. 0706 PFR File, Tab 3 at 29-35. Even considering this
documentation, we find that it does not warrant a different outcome of this appeal. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (finding that the Board
generally will not grant a petition for review based on new evidence absent a showing
that it is of sufficient weight to warrant an outcome different from that of the initial
decision).
8

at 4-28. According to her, a position as a Customer Care Agent at the Los
Angeles Customer Care Center (LACCC) or a Lobby Director would allow her to
work within her restrictions. Id. at 15-24. In referencing her “known medical
restrictions,” the appellant suggests that she is entitled to restoration to a position
that accommodates both her compensable and noncompensable injuries. Id.
at 4-28. Her argument is without merit. As the administrative judge correctly
explained, restoration rights apply to an employee’s compensable injuries.
0706 ID at 14; see 5 C.F.R. §§ 353.102, 353.301. A compensable injury is
defined as one that is accepted by OWCP as job-related and for which medical or
monetary benefits are payable from the Employees’ Compensation Fund. See
Hamilton v. U.S. Postal Service, 123 M.S.P.R. 404, ¶ 14 (2016). The
determination of whether an individual suffers from a compensable medical
condition is within the exclusive purview of OWCP. Id.
Here, the appellant is essentially challenging the agency’s failure to restore
her to a position that allows her to avoid using a keyboard, mouse, and
handwriting for more than 10 minutes per hour based on her essential tremor
diagnosis. 0706 PFR File, Tab 3 at 5-10; 0706 IAF, Tab 1 at 2, Tab 5 at 15-17.
However, the record reflects, and the appellant testified, that her tremors are not a
work-related injury and OWCP has not accepted her claim for that injury.
0706 PFR File, Tab 3 at 13-14, 29-35; 0706 IAF, Tab 1 at 7-8, Tab 57,
HA (testimony of the appellant). Therefore, she is not entitled to restoration
based on that noncompensable injury. See Hamilton, 123 M.S.P.R. 404, ¶ 14
(finding that an appellant had no restoration rights under FECA based on a
medical condition that was not job-related). Further, as the administrative judge
correctly acknowledged, the Board has found that an agency is not obligated to
restore or provide limited duty for restrictions resulting from non-work-related
injuries. 0706 ID at 14; see As’Salaam v. U.S. Postal Service, 85 M.S.P.R. 76,
¶ 15 (2000) (holding that the appellant’s arguments regarding his medical
limitations not related to a compensable injury were not relevant to his restoration
9

appeal). Accordingly, we agree that the agency did not deny her request for
restoration when it did not consider her noncompensable injury in its limited-duty
assignment offer.

The appellant did not prove that the agency denied her restoration when it offered
her a limited-duty assignment to an SSA position.
The appellant also argues that the agency effectively denied her restoration
when it offered her the SSA position because it is “well outside of [her] known
restrictions.” 0706 PFR File, Tab 3 at 4-15. Her assertion is unavailing. Under
certain circumstances, the Board has determined a restoration may be deemed so
unreasonable as to amount to a denial of restoration. See Kingsley, 123 M.S.P.R.
365, ¶ 13. For example, a job offer that requires an appellant to perform duties
outside of her medical restrictions is tantamount to a denial of restoration. See
Paszko v. U.S. Postal Service, 119 M.S.P.R. 207, ¶ 9 (2013). Allegations that a
partially recovered appellant is incapable of performing the job duties of the
position to which she was restored may also be an effective denial of restoration.
Kingsley, 123 M.S.P.R. 365, ¶ 13. Here, the record reflects that the SSA position
incorporates her restrictions from her compensable injury. 0706 IAF, Tab 1
at 14-15, 21-24. Moreover, as the administrative judge correctly determined,
although the appellant is unable to perform the duties of the SSA position, her
inability to perform “is solely due to the restrictions that derive from her
non-work-related medical condition that results in tremors in her hands.”
0706 ID at 14-15. Thus, the agency’s offered position is not an effective denial
of restoration.

The appellant did not establish that the agency engaged in disability
discrimination because she did not meet her burden of proving that she is a
qualified individual with a disability.
On review, the appellant challenges the administrative judge’s findings
with respect to her disability discrimination affirmative defense. 0706 PFR File,
Tab 3 at 14-24. In particular, she reasserts that the agency failed to accommodate
10

her disability. Id. It is illegal for an employer to “discriminate against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a); 7 Haas v.
Department of Homeland Security, 2022 MSPB 36, ¶ 28. An employer is
required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 12112(b)(5)(A); Haas, 2022 MSPB 36,
¶ 28. Thus, both a claim of disability discrimination based on an individual’s
status as disabled and a claim based on an agency’s failure to reasonably
accommodate that disability require that the individual be “qualified.” Haas,
2022 MSPB 36, ¶¶ 28-30.
A qualified individual with a disability is one who can “perform the
essential functions of the . . . position that such individual holds or desires” with
or without reasonable accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB
36, ¶ 28. The administrative judge found that the appellant was not “qualified”
and thus could not establish disability discrimination on a failure to accommodate
or disparate treatment theory. 0706 ID at 21-26. In so finding, he reasoned that
(1) she could not perform the essential functions of her position with or without
an accommodation; (2) there is no Lobby Director position at the agency; and
(3) she did not establish that she could perform the essential functions of the
Customer Care Agent with or without a reasonable accommodation when it
requires the consistent use of a keyboard and mouse and she did not identify a
reasonable accommodation that would allow her to perform the essential duties of
the position within her medical restrictions. 0706 ID at 16-18, 20-25.
The appellant asserts on review that she is qualified because she could
perform the same Lobby Director duties as another postal employee or the duties
of a Customer Care Agent at the LACCC with a reasonable accommodation of a
headset and some unidentified technological solution. 0706 PFR File, Tab 3

7
The Rehabilitation Act has incorporated the standards of the Americans with
Disabilities Act, as amended by the Americans with Disabilities Amendments Act of
2008. Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 35.
11

at 15-24. We agree with the administrative judge. The appellant has not
established that the Lobby Director is a vacant, funded position to which the
agency could have reassigned her. Id.; see Clemens v. Department of the Army,
120 M.S.P.R. 616, ¶ 11 (2014). Furthermore, her assertion that the agency could
have considered different technology vendors to accommodate her is insufficient
to meet her burden of showing that an accommodation was available that would
have enabled her to perform the duties of a Customer Care Agent. See Clemens,
120 M.S.P.R. 616, ¶ 17 (finding that an appellant’s mere assertion that the agency
could have allowed him to use specific software was insufficient to establish his
burden that an accommodation existed and was reasonable). Therefore, we agree
with the administrative judge that the appellant’s disability discrimination claims,
based on both disparate treatment and reasonable accommodation theories, must
fail because she has not established that she is a qualified individual with a
disability.

The appellant’s remaining arguments in her 0706 petition for review provide no
basis for review.
On review, the appellant argues that the administrative judge erred in
dismissing her appeal without properly reviewing her discrimination claims.
0706 PFR File, Tab 3 at 4-5. However, the initial decision reflects otherwise.
0706 ID at 8-11, 19-28. We recognize that the administrative judge did not cite
or discuss everything in the appellant’s discrimination statement below.
0706 IAF, Tab 33. However, an administrative judge’s failure to mention all of
the evidence of record does not mean that he did not consider it in reaching his
decision. Marques v. Department of Health and Human Services , 22 M.S.P.R.
129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, the
appellant has not identified any particular evidence that the administrative judge
may have overlooked that might affect the outcome of this appeal. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
12

no basis to reverse an initial decision). Accordingly, this argument provides no
basis to disturb the initial decision.
The appellant also argues that the administrative judge’s erred in denying
her motion to compel discovery. 0706 PFR File, Tab 4 at 3. The record does not
indicate that the appellant preserved any objection to the administrative judge’s
discovery rulings, as required to preserve the alleged error for the Board’s
review. Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 14 (2008), aff’d,
324 F. App’x 883 (Fed. Cir. 2009); see also Tarpley v. U.S. Postal Service,
37 M.S.P.R. 579, 581 (1988) (stating that the appellant’s failure to object to
rulings precludes him from doing so on review). Moreover, the Board has held
that administrative judges have broad discretion in ruling on discovery matters,
and absent a showing of an abuse of discretion, the Board will not find reversible
error in such rulings. Kingsley, 123 M.S.P.R. 365, ¶ 16; Vores, 109 M.S.P.R.
191, ¶ 14. Additionally, even if the administrative judge abused his discretion
concerning his rulings below, the appellant must show how that error affected the
result reached in his appeal. Vores, 109 M.S.P.R. 191, ¶ 14. In denying in part
the appellant’s motion to compel, the administrative judge found that her requests
were either answered, duplicative, irrelevant, unclear, or overbroad. 0706 IAF,
Tab 30. The appellant’s mere disagreement with the administrative judge’s
findings on review provides no basis to find that he abused his discretion or, even
if he did, that such abuse of discretion affected the outcome in this appeal. See
Vores, 109 M.S.P.R. 191, ¶ 14. This argument likewise provides no basis to
disturb the initial decision. Consequently, we affirm the administrative judge’s
finding that the appellant is not entitled to corrective action in the 0706 appeal.

The appellant’s petition for review of the initial decision dismissing her
0235 appeal as barred by adjudicatory efficiency was untimely filed without good
cause shown for the delay.
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
13

decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). Here, the initial decision was issued on February 26, 2025, the
appellant’s petition for review was originally due on April 2, 2025, and the Clerk
of the Board granted her request for an extension of time to file her petition for
review no later than May 2, 2025. 0235 ID at 1, 8; 0235 PFR File, Tab 2 at 1.
Therefore, her May 4, 2025 petition for review is untimely by 2 days.
The Board will waive this time limit only upon a showing of good cause for
the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for the
untimely filing of a petition, a party must show that she exercised 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) (citing Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of her excuse and her 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. Rivera,
111 M.S.P.R. 581, ¶ 4 (citing 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)).
We find that the appellant has not demonstrated good cause for the
untimely filing of her petition for review. Although the appellant has a
non-attorney representative and her 2-day delay is not especially lengthy, the
Board will waive its filing time limit only upon a showing of good cause. See
Melendez v. Department of Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009)
(declining to waive the filing time limit for a 3-day filing delay when the
appellant failed to show good cause for the delay). Here, the appellant has failed
to make such a showing; indeed, she failed to respond to the notice affording her
14

the opportunity to file a motion to accept the filing as timely and/or to waive the
time limit for good cause. See Smith v. Department of the Army, 105 M.S.P.R.
433, ¶ 6 (2007) (finding that the appellant failed to show good cause for his 1-day
delay in filing his petition for review when he failed to respond to the notice
instructing him to establish good cause for the untimely filing).
Accordingly, we dismiss the appellant’s petition for review of the initial
decision dismissing her 0235 appeal as barred by adjudicatory efficiency 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 appellant’s 0235 appeal.

NOTICE OF APPEAL RIGHTS 8
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.

8
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.
15

(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
16

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:
17

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. 9 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

9
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.
18

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/11271014. Public record. Not legal advice.