Opinion

Keschena Photo v. U.S. Postal Service

Court
Merit Systems Protection Board
Filed
Mar 13, 2026
Status
Unpublished
Cited by
0 cases

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KESCHENA PHOTO, DOCKET NUMBER

Appellant, AT-0752-24-0747-I-1

v.

U.S. POSTAL SERVICE, DATE: March 13, 2026

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Lorenzo Cobb, Sr. , Esquire, Sugarhill, Georgia, for the appellant.

Roderick Eves and Ayana Bowman , Esquire, St. Louis, Missouri,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

REMAND ORDER

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

dismissed her removal appeal as untimely filed by 1 day without good cause

shown. For the reasons discussed below, we GRANT the appellant’s petition for

review, REVERSE the initial decision, and REMAND the case to the regional

office for further adjudication in accordance with this Remand Order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 was removed from Federal service, effective

September 9, 2023. Initial Appeal File (IAF), Tab 1 at 3, 11. She filed an equal

employment opportunity complaint challenging her removal in September 2023.

IAF, Tab 8 at 3, 22. On June 24, 2024, the agency issued a final agency decision

(FAD) notifying the appellant of her right to appeal to the Board, which

she received on June 27 or 28, 2024. IAF, Tab 6 at 45, Tab 8 at 4, 22-25, Tab 9

at 2-6, 12. The FAD notified the appellant that any Board appeal was due no later

than 30 days after receipt of the decision. IAF, Tab 9 at 5.

Counsel for the appellant asserts that, on July 24, 2024, he unsuccessfully

attempted to file a Board appeal using the Board’s electronic system, eAppeal.

IAF, Tab 8 at 4. Thereafter, on July 24 and 25, 2024, he attempted to send her

appeal to the Atlanta Regional Office using the facsimile number provided with

the FAD. 2 Id.; IAF, Tab 9 at 15-18, 24. The transmissions were unsuccessful.

IAF, Tab 8 at 4, Tab 9 at 15-18, 24. Counsel for the appellant asserts that he

called the regional office to explain his filing difficulties and that the staff

provided him with an alternate facsimile number. IAF, Tab 8 at 4.

On July 29, 2024, counsel for the appellant successfully transmitted the

initial appeal to the alternate facsimile number provided by the regional office.

Id.; IAF, Tab 9 at 20-21, 24. The cover sheet to the facsimile erroneously

contained the name of a different appellant in the subject line. IAF, Tab 9

at 20-21. Below the subject line, the cover sheet contained the following text:

“Attached please find Ms. Photo’s Appeal in above referenced matter. I was

unable on 7/24/24 to create her file electronically. I would input information, and

the system would crash. I am therefore faxing her appeal.” Id. at 20. According

to the appellant’s counsel, a representative from the regional office contacted him

on July 30, 2024, and notified him that the cover sheet contained an erroneous

2

The same fax number is listed in Appendix B to the Board’s Initial Appeal Form,

MSPB Form 185. IAF, Tab 9 at 11.

3

name in the subject line. IAF, Tab 8 at 5. The representative purportedly

instructed the appellant’s counsel to send a new appeal with a corrected cover

page. Id. According to the appellant’s counsel, he was “assured [that] the

July 29, 2024 receipt date of the original document would be considered for filing

purposes for that particular document.” Id. On July 30, 2024, the appellant’s

counsel again sent a copy of the appellant’s initial appeal to the regional office by

facsimile with a corrected cover sheet. Id.; IAF, Tab 9 at 23-24. The cover sheet

contained the following text: “Attached please find Ms. Photo’s Appeal in above

referenced matter. This is replacing the document sent on July 29, 2024 with an

erroneous title.” IAF, Tab 9 at 23. The regional office docketed the appeal

reflecting a filing date of July 30, 2024. IAF, Tab 1. The corrected facsimile

cover sheet, which references the July 29 filing, is included in the docket. Id.

at 1.

On August 12, 2024, the administrative judge issued an order explaining

that the appeal appeared to be untimely and ordering the appellant to submit

evidence and argument demonstrating the timeliness of her appeal or good cause

for her delayed filing no later than August 22, 2024. IAF, Tab 4. The appellant

submitted her response by facsimile on the deadline. Petition for Review (PFR)

File, Tab 1 at 81-89. However, the response was not uploaded to the docket.

Rather, on August 26, 2024, the regional office sent an email to the appellant’s

counsel confirming receipt of three facsimiles and expressing confusion as to the

correct order of the documents. Id. at 91-93. The email instructed the appellant’s

counsel to upload the documents to eAppeal or to “resend in an order that can

easily be determined.” Id. at 91.

Several things happened on September 4, 2024. First, the administrative

judge issued an initial decision dismissing the appeal as untimely. IAF, Tab 7,

Initial Decision (ID). The administrative judge found that the appeal was due by

July 29 and was filed on July 30—one day late—and further found that the

appellant, having not responded to his order on timeliness, did not establish good

4

cause for her late filing. ID at 2-4. Also, on September 4, the appellant

resubmitted her response to the administrative judge’s order on timeliness by

facsimile. PFR File, Tab 1 at 95-96. The response was then uploaded to the

docket, reflecting a filing date of September 4, 2024. IAF, Tabs 8-9.

The appellant has filed a timely petition for review of the initial decision

and the agency has filed a response in opposition. PFR File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

An appellant who was subjected to an action that is appealable to the Board

and who filed a timely formal discrimination complaint with the agency may file

a Board appeal within 30 days after receipt of a FAD on the complaint. 5 C.F.R.

§ 1201.154(b). In this case, the appellant received the FAD on June 27 or 28,

2024, making her Board appeal due no later than Monday, July 29, 2024. 3 See

5 C.F.R. § 1201.23 (providing that, if a deadline falls on a weekend, the deadline

will be extended to the next workday). The record evidence supports a finding

that the appeal was timely filed on July 29, 2024. IAF, Tab 1 at 1, Tab 8 at 4,

Tab 9 at 20-21, 24. 4 Accordingly, we grant the appellant’s petition for review

and reverse the initial decision. We remand this appeal to the regional office for

adjudication on the merits.

3

The deadline is the same regardless of whether the appellant received the FAD on June

27 or 28, 2024.

4

To the extent the agency objects to the consideration of the appellant’s response to the

administrative judge’s timeliness order because it was docketed after the issuance of the

initial decision, IAF, Tabs 8-9, we find that the appellant has proved that her pleading

was timely filed in accordance with the administrative judge’s order, PFR File, Tab 1

at 81-89.

5

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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