Opinion

Trudy Brockington v. U.S. Postal Service

Court: Merit Systems Protection Board
Filed: Jun 22, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 41.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRUDY P. BROCKINGTON, DOCKET NUMBER

Appellant, PH-0752-23-0082-I-1

UNITED STATES POSTAL SERVICE, DATE: June 22, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allan Feldman , Houston, Texas, for the appellant.

Brandon Truman , 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

affirmed her removal. 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

The agency removed the appellant from her position as an EAS-17

Supervisor of Customer Services for matters concerning the timely delivery of

mail and reporting of the same. Initial Appeal File (IAF), Tab 6 at 17-20, 35.

She timely filed an appeal of her removal with the Board. IAF, Tab 1. After

holding a hearing, the administrative judge issued an initial decision affirming the

appellant’s removal. IAF, Tab 25, Initial Decision (ID) at 1, 14. The initial

decision explained that it would become final on August 23, 2023, unless the

appellant filed a petition for review by that date. ID at 14. The initial decision

further explained precisely how to do so. ID at 15.

The appellant filed the instant petition for review with the Clerk of the

Board in May 2025, more than 20 months after the deadline for doing so. Petition

for Review (PFR) File, Tab 1. Within, she argued that the agency representative

would have been amenable to settlement if he had been made aware of certain

facts of her case and she received poor representation in the proceedings below.

Id. at 2.

The Office of the Clerk of the Board notified the appellant that her petition

for review was untimely filed and she could file a motion to accept her filing as

timely and/or to waive the time limit for good cause. PFR File, Tab 2 at 1-2. In

response, the appellant suggests that the untimeliness of her petition for review

should be excused because she mistakenly filed with the U.S. Court of Appeals

for the Federal Circuit (Federal Circuit) during the filing period for filing a

petition for review with the Board. PFR File, Tab 3 at 1-4. The appellant

attached an August 25, 2023 letter from the court Clerk, addressed to the Board

Clerk, transmitting a document that “appear[ed] to be a petition for review before

the Board.” Id. at 1. According to this letter from the court Clerk, the Federal

Circuit received the document two days earlier, which would have been the final

day for filing a timely petition for review with the Board. Id. However, the

Board has no record of this letter from the court Clerk or the appellant’s enclosed

petition for review ever reaching the Board before the appellant submitted both in

May 2025.

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 petitioner shows that the initial

decision was received more than 5 days after the date of issuance, within 30 days

after the date the petitioner received the initial decision. Palermo v. Department

of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The record

reflects that the initial decision was served electronically on the appellant on

July 19, 2023—the date it was issued. IAF, Tab 26; see 5 C.F.R. § 1201.14(l)(2)

(providing that Board documents served electronically on e-filers are deemed

received on the date of electronic submission). Thus, the deadline for filing a

petition for review was August 23, 2023, the 35th day after the date of issuance

of the initial decision. See 5 C.F.R. § 1201.114(e). However, the appellant filed

the petition for review currently before us on May 2, 2025, more than 20 months

past the filing deadline. 2 PFR File, Tab 1.

The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R.

694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(g). The party who submits an

untimely petition for review has the burden of establishing good cause by

showing that she exercised due diligence or ordinary prudence under the

particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4; 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

Within her May 2025 petition, the appellant refers to something she submitted to the

Board, dated August 25, 2023. PFR File, Tab 1 at 2. To the extent that she is

referencing the August 25, 2023 letter from the court Clerk, the Board has no record of

receiving this letter prior to May 2025. PFR File, Tab 3 at 1. To the extent that she is

referring to some other submission, the Board has no corresponding record.

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. Palermo,

120 M.S.P.R. 694, ¶ 4; 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).

Generally, when an initial decision clearly informs an appellant where to

file her petition for review with the Board and she misdirects her petition to the

Federal Circuit, good cause does not exist for her later untimely filing with the

Board. Marino v. Office of Personnel Management, 96 M.S.P.R. 294, ¶ 8 (2004),

aff’d per curiam, 122 F. App’x 480 (Fed. Cir. 2005); Colon v. U.S. Postal

Service, 71 M.S.P.R. 514, 517 (1996). As previously noted, the initial decision

provided that it would become final on August 23, 2023, unless a petition for

review was filed with the Clerk of the Board by that date. ID at 14. The initial

decision clearly set forth how the appellant could do so. ID at 15-21.

Although the appellant has primarily handled her own filings on review and

filed a petition with the Federal Circuit before the initial decision became final,

that alone does not warrant a waiver of the filing deadline. PFR File, Tab 3 at 1;

see Evans v. Office of Personnel Management, 85 M.S.P.R. 36, ¶ 9 (1999);

Olson v. U.S. Postal Service, 66 M.S.P.R. 383, 387-88 (1995). Inexperience with

legal matters and unfamiliarity with Board procedures does not excuse a failure to

follow direct and explicit instructions. Olson, 66 M.S.P.R. at 387-88; see

Alexander v. Department of Veterans Affairs, 51 M.S.P.R. 368, 370 (1991)

(finding that the appellant failed to establish good cause for his untimely filed

petition for review when his confusion led him to file a petition with the Federal

court system instead of with the Board and his confusion was not caused by the

initial decision).

Even if the untimeliness of the appellant’s petition for review with the

Board was due to a mistaken belief that the Federal Circuit had successfully

forwarded her petition with the court for consideration by the Board, we must

find that the appellant has not proven that she exercised the due diligence or

ordinary prudence necessary to establish good cause for the lengthy delay in

filing her May 2025 petition with the Board. This is particularly so because she

received no acknowledgment from the Board after filing with the Federal Circuit

but waited 20 months to follow-up or take any action. See Lamb v. U.S. Postal

Service, 68 M.S.P.R. 500, 503 (1995) (concluding that an appellant did not

establish that she exercised due diligence when she waited 3 months after the

deadline before attempting to ascertain whether her attorney had filed a petition

for review on her behalf, and then delayed more than 3 additional months before

verifying with the Board whether such a petition had been filed), aff’d per

curiam, 78 F.3d 603 (Fed. Cir. 1996) (Table).

The appellant’s more than 20-month delay in filing the petition for review

before us was significant. See Scali v. Office of Personnel Management,

106 M.S.P.R. 409, ¶¶ 6, 8 (2007) (finding that 1 year was a significant filing

delay). Moreover, the delay was not due to circumstances beyond her control; the

delay resulted from her not following the instructions provided in the initial

decision.

We recognize that the appellant attached her correspondence to the court,

in which she asserted that she was under the care of a psychologist for

depression, anxiety, and brief psychotic disorder. PFR File, Tab 3 at 3.

Relatedly, the Board Clerk advised the appellant of what she must show in order

to establish good cause for an untimely petition for review if she was alleging

that her health affected her ability to meet the filing deadline, consistent with

Board precedent in Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).

PFR File, Tab 2 at 5 n.2. Nevertheless, the appellant has not identified the period

during which she experienced mental health issues. Nor has she submitted any

corroborating medical evidence or an explanation of how any such issues

prevented her from timely filing her petition for review or requesting an

extension of time. When, as here, an appellant does not provide any of the

information called for in Lacy, the Board has consistently declined to find good

cause for an untimely filing. See Cameron v. Department of the Navy,

112 M.S.P.R. 350, ¶ 13 (2009) (finding no good cause shown when a petition for

review did not offer any evidence or explanation as to why an appellant’s alleged

mental health issues resulted in her delay in filing); Davis v. U.S. Postal Service,

101 M.S.P.R. 107, ¶ 6 (2006) (finding that an appellant failed to establish good

cause for an untimely petition for review when he failed to explain how his

depression caused his delay in filing and he did not submit any medical

documentation in support of his claim), aff’d per curiam, 192 F. App’x 966

(Fed. Cir. 2006). Under these circumstances, we find that the appellant has not

met her burden of establishing good cause for a waiver of the filing deadline.

For all these reasons, we must dismiss the petition for review as untimely

filed without good cause shown. 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 removal appeal. 3

Even if we were to find that the appellant established good cause for her untimely

petition for review, the arguments within do not warrant a result different than that of

the initial decision. In both her letter sent to the Federal Circuit and her petition to the

Board, the appellant presented only cursory arguments. She faulted her representative

for not settling her appeal or establishing that the conduct underlying her removal was

unavoidable. PFR File, Tab 1 at 2, Tab 3 at 2-3. However, the Board has long held that

an appellant is responsible for the errors of her chosen representative. Mauldin v. U.S.

Postal Service, 115 M.S.P.R. 513, ¶ 13 (2011); Sofio v. Internal Revenue Service,

7 M.S.P.R. 667, 670 (1981). Thus, the appellant’s arguments are unavailing.

NOTICE OF APPEAL RIGHTS 4

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).

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.

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

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

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. 5 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