The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADDYS LAMB, DOCKET NUMBER
Appellant, NY-3443-21-0123-I-2
v.
U.S. POSTAL SERVICE, DATE: May 28, 2026
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Alan J. Shapiro , Warrensville Heights, Ohio, for the appellant.
Lori L. Markle , 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 his restoration appeal for lack of jurisdiction. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
On March 12, 2024, the administrative judge issued an initial decision in
the instant appeal dismissing the appellant’s restoration claim as a partially
recovered employee for lack of jurisdiction. Lamb v. U.S. Postal Service, MSPB
Docket No. NY-3443-21-0123-I-2, Appeal File, Tab 32, Initial Decision (ID).
The initial decision advised the appellant that the deadline to file a petition for
review was April 16, 2024, and it provided him with information as to how to file
a petition for review. ID at 8-9.
On October 25, 2024, the appellant submitted a filing purporting to
challenge the March 12, 2024 initial decision in this case. Petition for Review
(PFR) File, Tab 1 at 1. However, the appellant’s filing was addressed to a
different administrative judge who on October 10, 2024, had issued an initial
decision in an entirely separate appeal at MSPB Docket No. NY-0752-19-0223-
B-2 involving the appellant’s reduction-in-grade claim. Id.; PFR File, Tab 2 at 1.
On October 30, 2024, the Office of the Clerk of the Board issued an
acknowledgement letter accepting the appellant’s submission as a petition for
review in the instant matter and also directing him to file a pleading indicating
whether he intended his October 25, 2024 submission to also be considered as a
petition for review in MSPB Docket No. NY-0752-19-0223-B-2. PFR File, Tab 2
at 1 n.2. The acknowledgement order also informed the appellant that his petition
for review in this case was untimely filed because it had not been postmarked or
received by April 16, 2024, the 35th day following the issuance of the initial
decision. Id. at 2. The letter explained to 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 it set a deadline for him to file such a motion. Id. The Clerk
specifically informed the appellant that, if he did not timely submit the motion,
“the Board may issue an order dismissing your petition for review as untimely,
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which would result in the initial decision becoming the Board’s final decision.”
Id. at 3.
The appellant filed a response to the Board’s acknowledgment letter
restating his claims in the instant matter and also discussing the Board’s
October 10, 2024 initial decision “that was to become final November 14, 2024.”
PFR File, Tab 3. The appellant did not address the untimeliness of his petition
for review in this appeal. Id. The Office of the Clerk of the Board subsequently
issued an order again directing the appellant to file a pleading clarifying whether
his October 25, 2024 submission was a petition for review of the March 12, 2024
initial decision in MSPB Docket No. NY-3443-21-0123-I-2, a petition for review
of the October 10, 2024 initial decision in MSPB Docket No. NY-0752-19-0223-
B-2, or a petition for review of both decisions. PFR File, Tab 4. The appellant
did not respond. 2
DISCUSSION OF ARGUMENTS ON REVIEW
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
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). It is the appellant’s burden of proof, by a preponderance
of the evidence, to establish the timeliness of his petition for review.
5 C.F.R. § 1201.56(b)(2)(B); see McPherson v. Department of the Treasury,
104 M.S.P.R. 547, ¶ 4 (2007). Here, the initial decision was issued on
March 12, 2024, and sent via U.S. Mail to the appellant the same day. ID at 16.
The appellant does not allege that he did not receive the initial decision within
2
On December 20, 2024, the Office of the Clerk of the Board issued the appellant a
letter informing him that because he did not clarify the intent of his October 25, 2024
submission or indicate that he wished to pursue a petition for review in MSPB Docket
No. NY-0752-19-0223-B-2, his October 25, 2024 submission would be considered as a
petition for review in this appeal only.
4
5 days of its issuance. Therefore, we find that the appellant’s petition for review
filed on October 25, 2024, is untimely by more than 6 months. PFR File, Tab 1;
see 5 C.F.R. § 1201.114(e).
The Board will waive its filing deadline only upon a showing of good cause
for the delay. 5 C.F.R. § 1201.114(g). To establish good cause for an untimely
filing, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Gaetos v. Department of Veterans
Affairs, 121 M.S.P.R. 201, ¶ 5 (2014). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Id.; 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).
Here, we find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. The appellant has not provided any
explanation for his late filing despite being afforded the opportunity to do so and
explicitly warned that his failure to establish good cause for his untimely filing
would result in dismissal of his petition for review. His failure to address the
timeliness of his petition for review, or to respond to the Board’s repeated
requests for clarification about his submission, and the lack of evidence of
circumstances beyond his control or of unavoidable casualty or misfortune that
prevented him from filing a timely petition for review weigh against finding good
cause. Although it appears that the appellant may now be proceeding pro se, his
6-month delay is significant. See, e.g., Mashack v. U.S. Postal Service,
96 M.S.P.R. 174, ¶ 8 (2004) (finding a 3 1/2-month delay significant); Floyd v.
Office of Personnel Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month
5
delay not minimal). Furthermore, neither the argument contained in the
appellant’s petition for review submissions nor the documents he provides
therewith establish good cause for his untimeliness; they only challenge the
merits of his restoration appeal.
Accordingly, we dismiss the petition for review 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 restoration appeal.
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.
6
(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
7
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:
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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.
9
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.