Petition for Writ of Certiorari — Bradley E. Green, Petitioner v. Merit Systems Protection Board

No. ________

In the

Supreme Court of the United States

BRADLEY E. GREEN,

Petitioner,

-againstMERIT SYSTEMS PROTECTION BOARD,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

Supreme Court of the United States

PETITION FOR WRIT OF CERTIORARI

Rachel Demarest Gold, Esq.

ABRAMS FENSTERMAN, LLP

Attorneys For Petitioner

Three Dakota Drive, Suite 300

Lake Success, New York 11042

(516) 328-2300

rgold@abramslaw.com

November 5, 2025

4121

i

QUESTIONS PRESENTED

1.

Whether the United States Postal Service

violated Petitioner’s Due Process Rights pursuant to

the Fifth Amendment of the Constitution by

terminating Petitioner’s employment, and depriving

Petitioner of a protected property interest, without

conducting a full, fair and impartial investigation

and hearing?

2.

Whether the Merit System Protections Board

decision, premised on multiple factual errors, was

arbitrary and capricious in violation of 5 U.S.C.

§7703 (c)(3), thereby warranting review by this

Court?

3.

Whether the Merit System Protections Board

abused its discretion by failing to consider and apply

all the Alonzo factors in determining whether good

cause existed for the appellant’s untimely filing in

violation of 5 U.S.C. §7703 (c)(1)?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES .................................... ii

INTRODUCTION .................................................... 1

OPINIONS BELOW ................................................ 7

JURISDICTION ...................................................... 7

RELEVANT STATUTORY PROVISIONS ............ 7

STATEMENT OF THE CASE ................................ 8

A. Background ................................................... 8

REASONS FOR GRANTING THE WRIT OF

CERTIORARI ........................................................ 13

Review Is Necessary To Bring Clarity And

Fairness To The Merit Systems Protections

Board .................................................................. 13

Petitioner Holds A Property Right In His

Civil Service Position......................................... 14

USPS Investigation Denied Petitioner Due

Process ............................................................... 17

iii

The MSPB And Court’s Final Order And

Decision Constitute An Abuse Of Discretion.... 19

This Court Must Resolve the Inconsistent

Application of Alonzo Amongst Jurisdictions ... 28

CONCLUSION ...................................................... 32

CERTIFICATE OF COMPLIANCE ...................... 33

AFFIDAVIT OF SERVICE.................................... 34

iv

APPENDIX CONTENTS

United States Court of Appeals for the Federal

Circuit Judgment, August 8, 2025 ........................ 1a

Merit System Protections Board Final Order,

January 31, 2024 ................................................... 3a

Administrative Law Judge Decision,

December 28, 2017............................................... 15a

Administrative Law Judge Order on Timeliness,

December 14, 2017............................................... 34a

United States Postal Service Letter of Decision –

Notice of Proposed Removal October 10, 2017 ... 41a

v

TABLE OF AUTHORITIES

Cases

Page

Alonzo v. Department of Air Force,

4 MSPR 180 (1980) ................................... Passim

Anderson v. Dep’t of Just.,

999 F.2d 532 (Fed. Cir. 1993) .................... 27, 28

Arnett v. Kennedy,

416 U.S. 134 (1974) .........................14, 15, 16, 17

Barnes v. MSPB,

625 Fed. Appx. 996 (Fed. Cir. 2015) ........ Passim

Baseden v. MSPB,

629 Fed. Appx. 962 (Fed. Cir. 2015) .......... 28, 29

Bell v. Burson,

402 U.S. 535 (1971) .......................................... 16

Bd. of Regents of State Colls v. Roth,

408 U.S. 564 (1972) .......................................... 14

Chevron U.S.A. Inc. v. Natural Resources

Defense Council,

467 U.S. 837 (1984) .......................................... 31

vi

Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532 (1985) .................................... 14, 15

Herring v. MSPB,

778 F.3d 1011 (Fed. Cir. 2015)..20, 21, 25, 27, 29

Kerr v. MSPB,

908 F.3d 1307 (Fed. Cir. 2018)......................... 29

Kutcher v. Gray,

199 F.2d 783 (D.C. Cir. 1952) .......................... 14

Loper Bright Enterprises v. Raimondo,

603 U.S. 369 (2024) .......................................... 31

Matthews v. Eldridge,

424 U.S. 319 (1976) .......................................... 15

Mauldin v. United States Postal Service,

115 M.S.P.R. 513 (2011) ................................... 25

Skaggs v. Merit Sys. Prot. Bd.,

253 Fed. Appx. 930 (Fed. Cir. 2007) .......... 29, 30

Webster v. Dep’t of Army,

911 F.2d 679 (Fed. Cir. 1990) .......................... 30

VanFossen v. Dep’t of Hous. & Urban Dev.,

748 F.2d 1579 (Fed. Cir. 1984)......................... 30

vii

Ziegler v. Merit. Sys. Prot. Bd.,

705 Fed. Appx. 997

(Fed. Cir. 2017) ................................19, 20, 22, 29

Statutes and Rules

5 C.F.R. § 1201.22(b) (2025) .................................... 9

28 U.S.C. §1254 (1) .................................................. 7

Civil Service Reform Act of 1978, Pub. L. No.

95-454, 92 Stat. 1111 (1978).? 5 U.S.C. §1101

et seq ................................................................... 6

U.S. Const. amend. V ............................................ 14

U.S. Const. amend. XIV, § 1 .................................. 14

5 U.S.C. § 7513 (1978) ..................................... 14, 15

Other Authorities

Merit Sys. Prot. Bd., MSPB Provides Update on

Inherited Inventory (October 1, 2024)

https://www.mspb.gov/publicaffairs/press_releas

es/MSPB_Provides_Update_on_Inherited_Inven

tory.pdf .............................................................. 12

1

INTRODUCTION

Bradley Green, (“Brad”, “Mr. Green”,

“Petitioner”), was a dedicated employee of the

United States Postal Service (“USPS”), with an

unblemished record, for 21 years. In 2017 he was

transferred from his assignment on Long Island,

New York to another. Specifically, Mr. Green was

moved to the Brentwood Post Office where he was

tasked with increasing productivity due to

performance issues that were being faced there. The

assignment did not sit well with the long-serving

Union leadership at the Brentwood branch.

Within months, Brad was facing charges by

Union members that that he had made racist

comments. In addition to the allegations being

personally motivated by the Union representative,

all the stories used to support them were secondhand and internally conflicting. In fact, no one heard

or saw Mr. Green engage in the alleged conduct of

which he was accused and which was the basis for

his termination.

The USPS investigation of the allegations

consisted of only a select portion of the workers

being interviewed, even fewer being mentioned in

the Notice because they disputed the other

statements, and only a portion of those included

being signed by those interviewed. Following the

Notice and Mr. Greens’ challenge of the charges, an

2

additional 10 statements turned over to Mr. Green

reveal that, consistent with most of the statements

mentioned in the notice, Mr. Green was not

observed engaging in the offensive and derogatory

behavior of which he was accused

In short, the allegations were not credible.

Nonetheless, and despite his having no

incident in 21 years of service, the U.S. Postal

Service terminated Mr. Green. When he tried to

defend himself, Mr. Green was denied the full

investigatory file pertaining to his proposed removal.

When he nonetheless tried to make his case, he was

denied a full and fair opportunity to refute the

slanderous, career-ending, hearsay allegations.

Mr. Green appealed his termination to the

Merit System Protections Board (the “MSPB”). He

started the application on October 20, 2017. His

deadline to finalize the appeal was November 27,

2017. As the MSPB acknowledges, on Thanksgiving

Day, November 23, 2017, Green logged into his

account on the MSPB’s electronic filing system, eAppeal Online, at approximately 9:30 a.m. to upload

the final piece of his appeal – the narrative.

Mr. Green was unable to upload the final

document and contacted his counsel by email to ask

for assistance. Counsel responded and attempted to

upload the final document themselves- both by

copying and pasting the response but even by

3

attempting to manually re-type it. On November 23,

2017, both Mr. Green and his counsel were unable

to submit the last document necessary to complete

his appeal submission due to technical malfunctions

that were outside of their control. As it was

Thanksgiving day and there was time left to perfect

the appeal, they decided to try again the next day.

The following day, Friday, November 24,

2017, both Mr. Green and counsel continued to

attempt to upload the appeal document. On this day,

the Board’s e-file system had a scrolling message

across its home screen that said, in sum, that the

system had been restored as of 1:30 p.m. EST and

included an apology for any inconvenience. Both Mr.

Green and counsel made daily attempts to file the

appeal, without success. The scrolling message

remained on the Board’s home screen on December

1, 2017. On December 1, 2017, Mr. Green obtained

the MSPB fax number and attempted to fax the

appeal but was unsuccessful. On December 4, Mr.

Green’s counsel was able to transmit the papers to

the MSPB by office fax.

Though he has never been given all the

information required to understand exactly why he

was unable to perfect the very last portion of his

appeal, the MSPB, in its Response to Mr. Green’s

filing, noted that November 29 was “a day after the

appeal was filed”- indicating that the appeal was

filed on November 28, 2017. Nonetheless, the MSPB

4

took the position that Mr. Green did not submit his

appeal until December 4, 2017. This discrepancy

alone is indicative of the inaccurate and

dysfunctional system that is being use to deny Mr.

Green of his livelihood, and calls for an examination

of the due process denied Petitioner. But it gets

worse.

When the case was reviewed by the MPSB, its

own Administrative Law Judge disregarded Mr.

Green’s explanation of the technical difficulties

encountered on the MSPB website without

examination of the issues alleged, nonetheless found

no good cause existed for the untimely filing (which,

even with the multiple filing attempts and failures,

amounted only to a 5-day delay). This decision

would become final on February 1, 2018, unless a

petition for review was filed by that date with the

MSPB. Mr. Green filed a petition for review.

On January 31, 2024, the MSPB issued a

Final Order denying the petition for review and

affirming the ALJ’s decision dismissing the appeal

for lack of timeliness. The MSPB determined that,

even crediting Mr. Green’s assertion about the

technical difficulties he encountered, Mr. Green did

not demonstrate good cause to excuse his delayed

filing because he failed to request technical

assistance from MSPB to resolve the filing issue or

pursue alternate means to submit his appeal before

the deadline.

5

Mr. Green timely filed a petition for review

with the United States Court of Appeals for the

Federal Circuit on March 31, 2024. After oral

argument on August 6, 2025, the Federal Circuit

affirmed the MSPB’s Final Order by Order dated

August 8, 2025, but with no explanation.

Alonzo v. Department of Air Force, 4 MSPR

180 (1980), sets forth the factors for the MSPB to

consider in determining whether a petitioner

established good cause to excuse an untimely Board

filing, including (1) the length of the delay; (2) the

existence of circumstances beyond the control of the

appellant which affected his ability to comply with

time limits; (3) the degree of negligence attributable

to the appellant; (4) circumstances demonstrating

excusable neglect; (5) a showing of unavoidable

casualty or misfortune; and (6) the extent and nature

of prejudice to the agency which would result from

waiver of the time limit. Alonzo, 4 MSPR at 184.

The merits of Mr. Green’s specious

termination from his long-tenured employment at

the United States Postal Service have never been

heard due to the MSPB’s erroneous and incomplete

application of the Alonzo factors. Pivotally, the

MSPB solely considered Mr. Green’s failure to

pursue alternate means of filing his appeal and to

seek technical assistance, while disregarding other

key Alonzo factors, including the existence of

technical circumstances beyond his control and,

6

most importantly, the lack of any prejudice to the

agency if the time limit were waived.

This case presents the opportunity for this

High Court to review the application of the Alonzo

factors within the MSPB, the Federal Circuit Court,

and Regional Circuit Courts, which has not been

consistent—an issue of utmost importance, because

failure to hear cases on the merits not only

undermines the purpose of the MSPB, but also the

Civil Service Reform Act (hereinafter “CSRA”)

which is designed to provide protections, including

rights,

remedies,

and

equal

employment

opportunities to employees like Mr. Green in the

federal civil service system. 5 U.S.C. §1101 et seq.

This case also presents the opportunity to

hold the MSPB accountable in properly effectuating

its role to protect federal employee’s rights, and in

doing so safeguard the merit system principles. The

rigid bar to a determination on the merits of Mr.

Green’s termination is contrary to the time-honored

principle that cases should be heard on the merits,

which allows employees to challenge adverse

employment actions and ensure they receive due

process, strengthening fairness and accountability

in federal practices. Since the financial stakes for

Mr. Green and other terminated federal workers are

enormous here, all factors should be considered

before his protected property rights in his

employment, his pension and other earned benefits

7

are taken away without the due process he is

entitled to receive. Review by this Court, and

remand for consideration of his claims on the merits,

is important to properly ensure that the rights of

civil servants everywhere are sufficiently protected.

OPINIONS BELOW

The United States Court of Appeals for the

Federal Circuit is reported as Case 24-1615.

The MSPB’s most recent decision is reported

as Docket Number NY-0752-18-0034-I-1.

The Administrative Law Judge’s most recent

opinion is reported as Docket Number NY-0752-180034-I-1.

JURISDICTION

The United States Court of Appeals for the

Federal Circuit heard Oral Arguments regarding

this matter on August 6, 2025. Judgment was

entered on August 8, 2025, affirming dismissal of

Petitioner’s claim due to untimeliness. This Court

has jurisdiction under 28 U.S.C. §1254 (1).

RELEVANT STATUTORY PROVISIONS

Relevant statutory provisions are set forth in

the Appendix.

8

STATEMENT OF THE CASE

A.

Background

Petitioner Bradley Green was a member of

the United States Postal Service for 21 years

without any complaint or incident. In 2017,

Petitioner was assigned to a new position in

Brentwood, Long Island, New York. The assignment

was for a specific purpose: to improve the failing

productivity rate of that location. His directive left

him in regular and direct conflict with the Union

leadership at his new assignment and, less than a

year after this transfer, Petitioner was terminated

following allegations by his supervisor that Mr.

Green made derogatory and offensive statements

about other employees.

Though the USPS claimed to have numerous

employee witnesses and substantial evidence

warranting Petitioner’s termination, there is only

one alleged firsthand account of the alleged behavior

to support the charge. That account was provided by

Paul Hinds, Petitioner’s new supervisor, who had

openly expressed animosity toward Petitioner. The

accounts of other employees did not corroborate

Hinds’ claims. In fact, the only common

denominator in all the allegations was that they

were all relayed to other employees by Paul Hinds,

the Acting Supervisor. None of the employees’

statements made mention of hearing Mr. Green

uttering the racist, offensive comments; they all

9

consisted of second-hand reports relayed to those

employees by Hinds.

On June 2, 2017, Petitioner was issued a

Notice of Proposed Removal. This Notice advised

Petitioner that he could respond to the charge by

contacting John Tortorice, Manager, Operations

and Programs Support, and provide information

deemed to be relevant to the charge. Petitioner

obtained counsel, Rachel Gold, Esq., who

subsequently responded to the Notice of Proposed

Removal on August 22, 2017. Following a meeting

and review of Petitioner’s arguments, Mr. Tortorice

determined that the charge in the Notice of

Proposed Removal was fully stated and supported

by the evidence of the record, thus warranting

Petitioner’s removal from the USPS.

Petitioner was issued a Letter of Decision

regarding his proposed removal on October 10, 2017.

His last day of pay status was October 27, 2017, and

the effective date of his removal was October 28,

2017. Petitioner was made aware of the 30-day

deadline for the appeal with the MSPB. See 5 C.F.R.

§ 1201.22(b) (2025).

Mr. Green appealed his termination to the

MSPB. His filing deadline was November 27, 2017.

Green began preparation for his appeal immediately,

and it was nearly perfect one week before filing. The

only item that remained to be uploaded to the

MSPB’s electronic filing system was Mr. Green’s

10

narrative. On Thanksgiving Day, November 23,

2017, things went awry.

Mr. Green logged into his account on

November 23 at approximately 9:30 a.m. He was

unable to upload the final document—his narrative.

Around 15 minutes later, he advised counsel of the

issue by email and asked for assistance. Counsel

attempted to upload the final document herself; not

only by copying and pasting the draft response but

even by trying to manually re-type the response.

Both Mr. Green and counsel were unable to submit

the last document necessary to complete the

submission due to these technical malfunctions,

which were circumstances outside of their control.

Because it was the holiday and there was time left

to perfect the appeal, they decided to resume efforts

to complete the filing the next day.

The following day, on Friday, November 24,

2017, both Mr. Green and counsel continued to

attempt to upload the last document. The Board’s efile system had a scrolling message across its home

screen that said, in sum, that the system had been

restored as of 1:30 p.m. EST and apologized for any

inconvenience. Between November 24, 2017, and

December 1, 2017, both Mr. Green and counsel made

daily attempts to file the appeal, without success.

The scrolling message remained on the Board’s

home screen on December 1, 2017. On December 1,

2017, Mr. Green obtained the MSPB fax number

11

and attempted to fax the appeal but was

unsuccessful. On December 4, Mr. Green’s counsel

was able to transmit the papers to the MSPB by

office fax. Ultimately, the MSPB stated the date of

submission was December 4th, 2017- in direct

contrast to its own papers saying the appeal was

filed November 28 Appx. MSPB AGENCY’S

RESPONSE TO APPELLANT’S EVIDENCE ON

TIMELINESS at 101. The next step was for the

MSPB Administrative Law Judge to review the

situation and determine whether cause for the

allegedly untimely appeal existed and whether it

could be excused.

On December 28, 2017, an Administrative

Law Judge, Nicole DeCrescenzo (the “ALJ”) ordered

Petitioner to show by preponderant evidence that

good cause existed for the delay in filing, noting:

“Preponderant evidence is the degree of relevant

evidence that a reasonable person, considering the

record as a whole, would need to find that a

contested fact is more likely true than untrue. In

other words, you must show that it is more likely

than not that your appeal was filed on time or good

cause exists for the delay.” Appx. ALJ Order on

Timeliness.

After review of Petitioner’s submissions,

which did NOT include MSPB filing system records

because they were not provided to the Petitioner, the

ALJ ultimately dismissed the Petitioner’s appeal as

12

untimely.

Appx. ALJ’s Initial Decision. In

particular, the ALJ stated that Petitioner did not

exercise due diligence or ordinary prudence under

the particular circumstances of this case. Appx.

ALJ’s Initial Decision. The Initial Decision stated

that Petitioner may request Board review of this

decision within 30 days after receiving this decision,

otherwise, it would become final on February 1,

2018.

Appx. ALJ’s Initial Decision. Mr. Green

timely filed a petition for review with the MSPB.

Despite the timely filing of his appeal with

the MSPB and denial of due process that

necessitated it, Mr. Green’s appeal was not heard

over four (4) years. From January 7, 2017, to March

3, 2022, the MSPB was unable to decide any

petitions for review or other cases which required

Board action since they lacked a quorum. See Merit

Sys. Prot. Bd., MSPB Provides Update on Inherited

Inventory

(October

1,

2024).

https://www.mspb.gov/publicaffairs/press_releases/

MSPB_Provides_Update_on_Inherited_Inventory.p

df.

On March 4, 2022, the new Board inherited

an inventory of 3,793 cases that accumulated during

that period. See id.

On January 31, 2024, the MSPB issued a

Final Order affirming the ALJ’s determination. The

MSPB determined that, even if Mr. Green’s excuse

were credited, his delay was not excusable since he

13

failed to request technical assistance to resolve his

inability to file or seek alternate means of filing.

Mr. Green appealed. The United States Court

of Appeals for the Federal Circuit heard Oral

Argument on Petitioner’s appeal on August 6, 2025.

Judgment was entered on August 8, 2025 affirming

dismissal of Petitioner’s appeal due to untimeliness.

Appx. U.S. Ct. of App. For Fed Cir. Decision.

Petitioner now seeks a grant of certiorari to this

Honorable Court.

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

Review Is Necessary To Bring Clarity And

Fairness To The Merit Systems

Protections Board

The fact that Mr. Green was terminated from

his postal service employment, but the merits of his

case were never heard below, underscores the need

for this Court to revisit the comprehensive

procedural protections established by the Civil

Service Reform Act of 1978, reflecting Congress’

intent to ensure fairness and accountability in

federal employment actions. See Civil Service

Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111 (1978).

The Fifth Amendment, applicable to federal

employees, and Fourteenth Amendment, applicable

to state and local employees, both establish that the

14

government cannot deprive a person of “life, liberty,

or property” without due process of the law. U.S.

Const. amend. V; U.S. Const. amend. XIV, § 1.

5 U.S.C. §7513(a) states that “an agency may

take an action covered by this subchapter against an

employee only for such cause as will promote the

efficiency of the service. 5 U.S.C. § 7513 (1978). An

employee is defined as, inter alia, one who has

completed more than one year of continuous service

in the United States Postal Service or Postal

Regulatory Commission. See 5 U.S.C. § 7513 (a)(1)

(1978). “For such cause as will promote the

efficiency of the service” are not vague and

overbroad and set limitations on the government’s

authority to discharge federal employees. See Arnett

v. Kennedy, 416 U.S. 134 (1974). It refers to the

efficiency of public service, rather than efficiency of

performance by a single employee. See also Kutcher

v. Gray, 199 F.2d 783 (D.C. Cir. 1952).

Petitioner Holds A Property Right In His

Civil Service Position

The Supreme Court has held that civil service

employees possess a property right in their

continued employment. See Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532 (1985); see Bd. of

Regents of State Colls v. Roth, 408 U.S. 564 (1972).

Public employees who can only be terminated for

“just cause” are afforded due process rights and thus

have a property interest in their continued

15

employment. See Cleveland Bd. of Educ., 470 U.S.

532.

Section (b) of this statute covers the proper

procedures required for employees against whom an

action is proposed. See 5 U.S.C. § 7513 (1978). It

states that employees are entitled to

1) at least 30 days advance written notice,

unless reason to believe the employee has

committed a crime for which a sentence of

imprisonment may be imposed; 2) a reasonable time,

but not less than seven days, to answer orally and

in writing and to furnish affidavits and other

documentary evidence in support of the answer; 3)

be represented by an attorney or other

representative; and 4) a written decision and the

specific reasons therefor at the earliest practicable

date.

5 U.S.C. § 7513. In accordance with judicial

precedent, employees are entitled to notice of the

charges against them, an explanation of the

employer’s evidence, and an opportunity to present

their side of the story, also known as an opportunity

to be heard. See Arnett v. Kennedy, 416 U.S. 134

(1974).

An opportunity to be heard includes a

pretermination process, evident from a balancing of

the competing interests at stake. See Matthews v.

Eldridge, 424 U.S. 319 (1976). While it need not be

16

elaborate, the pretermination hearing is necessary.

See id. This hearing does not need to resolve the

issue of discharge, but should be an initial check

against

mistaken

decisions,

essentially

a

determination of whether reasonable grounds exist

to believe that the charge(s) against the employee is

true and supported by the proposed action. See Bell

v. Burson, 402 U.S. 535 (1971). An employee’s

opportunity to present their side of the case has

immense value in reaching an accurate decision by

the decision-maker. See Loudermill, 470 U.S. 532.

Allowing an employee to respond prior to

termination

neither

imposes

significant

administrative burden nor intolerable delay. See id.

Where an employee has access to the material upon

which the charge was based and can respond orally

and in writing and present rebuttable affidavits, the

minimal constitutional standard is satisfied. See

Arnett v. Kennedy, 416 U.S. 134 (1974).

Petitioner, an employee of the USPS, and

these employees can only be terminated for “just

cause.” 5 U.S.C. § 7513. This gives these employees

due process rights which affords them a right to

their continued employment and procedural

safeguards. See 5 U.S.C. § 7513; see Loudermill, 470

U.S. 532. The Petitioner concedes that the USPS

gave him proper notice regarding his termination,

but not a proper opportunity to be heard.

17

USPS Investigation Denied Petitioner

Due Process

The USPS conducted what they claimed to be

a proper investigation. Yet, Petitioner was not given

access to or provided with File “552”, which

contained the full investigation, failing to satisfy the

minimum constitutional standard. See Arnett, 416

U.S. 134 (giving employee access to the material

upon which the charge was based satisfies the

“constitutional minima standard”). Petitioner

cannot be found to have had a meaningful

opportunity to mount a defense when he was

deprived of full access to the investigation file. See

id. Petitioner responded to the Notice of Proposed

Removal, highlighting the numerous discrepancies

in the employee statements and how this decision

relied on the biased? testimony of a singular

individual.

Specifically, the case against Mr. Green, he

pointed out, was based entirely on the word of one

man, Paul Hinds, who spread proven falsehoods

about the Petitioner. Hinds claimed to have been a

witness to numerous occasions where he allegedly

heard Petitioner use offensive and derogatory

language both to and about other employees. Those

other employees, however, make little to no mention

of such instances in their statements. In fact, rather

than corroborating the accounts, those interviewed

stated to the contrary; that they have never heard

18

nor witnessed such offensive behavior from

Petitioner. Most of the claims seem to have

originated from or had been relayed through Mr.

Hinds.

The USPS, nonetheless, determined there

was sufficient evidence in the record to show that

Petitioner generally mistreated subordinate

employees and often used offensive and obscene

language. Despite this thin and conflicting record,

John Tortorice in his Decision Letter from the USPS

stated he found the charge was fully supported by

the evidence of record and found Mr. Hinds to be

credible, thus warranting Petitioner’s removal from

the Postal Service.

Mr. Green was terminated without access to

the entirety of the investigation being used against

him. Not only did this undermine his ability to

defend himself on its face, it is particularly

disturbing because what was turned over entailed

such significant internal contradictions. This was a

constitutional violation of due process in general,

and even more so here because of Petitioner’s

heightened due process rights as a civil service

employee with a property interest in his position.

This termination of Petitioner, without proper due

process, vehemently offends the rights afforded by

the Constitution. Without full knowledge of the

evidence and allegations, Mr. Green was unable to

effectively challenge the charges or present a

19

complete defense, violating his due process rights

and threatening the fairness and integrity of the

disciplinary process.

The MSPB And Court’s Final Order And

Decision Constitute An Abuse Of Discretion

Petitioner urges the Court to grant the

Petition for Writ of Certiorari because the decision

by the MSPB, which was affirmed by the Circuit

Court, was unsupported by substantial evidence,

arbitrary, capricious, and an abuse of discretion. See

5 U.S.C. § 7703(c).

5 U.S.C.§ 7703(c) requires as follows:

In any case filed in the United States Court of

Appeals for the Federal Circuit, the court shall

review the record and hold unlawful and set aside

any agency action, findings, or conclusions found to

be: (1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law; (2) obtained

without procedures required by law, rule, or

regulation having been followed; or (3) unsupported

by substantial evidence.

Alonzo v. Department of Air Force, 4 MSPR

180 (1980), sets forth the factors to consider in

determining whether a petitioner established good

cause to excuse an untimely Board filing—a burden

that rests on the petitioner. See Ziegler v. Merit. Sys.

Prot. Bd., 705 Fed. Appx. 997 (Fed. Cir. 2017). The

20

factors to be assessed by the MSPB, as set forth in

Alonzo, are

(1) [T]he length of delay; whether appellant

was notified of the time limit or otherwise aware of

it; (2) the existence of circumstances beyond the

control of the appellant which affected his ability to

comply with time limits; (3) the degree to which

negligence by the appellant has been shown to be

present or absent; (4) circumstances which show

that any neglect involved is excusable neglect; (5) a

showing of unavoidable casualty or misfortune; and

(6) the extent and nature of prejudice to the agency

which would result from waiver of the time limit.

Alonzo, 4 MSPR at 184.

To excuse an untimely filing for good cause, a

party must show that they exercised ordinary

prudence or due diligence in attempting to make the

filing. See Ziegler, 705 Fed. Appx. at 998. Further,

the agency is to express the extent and nature of

prejudice, if any, that may result from the waiver of

the filing deadline. See Alonzo, 4 MSPR 180 at 184.

Where the prejudice to the agency caused by the

delay is not substantial, the delay in filing should be

excused. See id. The Federal Circuit has recognized

that waivers of an untimely appeal may be granted

"after considering all of the facts and circumstances

of a particular case." Herring v. MSPB, 778 F.3d

1011 (Fed. Cir. 2015).

21

The present decision of the MSPB before the

Court is a violation of 5 U.S.C.§7703(c)(3), Not only

is it unsupported by the evidence, it short-circuited

the proper Alonzo balancing test by failing to

explicitly address key factors, including, most

importantly, the existence of circumstances beyond

Petitioner’s control and the complete lack of

prejudice to the agency that would result from

excusing the minimal delay of, at most, only 5 days

over a holiday weekend. See Alonzo, 4 MSPR 180.

Mr. Green’s short delay should have been

excused here. In Herring v. Merit Systems Protection

Bd., 778 F.3d 1011 (Fed. Cir. 2015), the Federal

Circuit Court concluded that the Board abused its

discretion by finding that the employee failed to

show good cause for a ten-day delay in filing an

appeal from the denial of her application for

disability retirement benefits, especially where,

among other things, the MSPB was not prejudiced

by the delay. In Herring, the Circuit Court rejected,

as unreasonable, the Board’s suggestions that the

appellant could have personally filed her appeal,

and made clear that, in establishing that a delay

was occasioned by circumstances beyond a party’s

control, “[t]he appellant need not show an utter

impossibility, but only that the delay was excusable

in light of the particular facts and attending

circumstances where diligence or ordinary prudence

has been exercised.” Id. at 1014. By contrast, Mr.

22

Green’s delay of only 5 days pales in comparison to

the delays of much longer duration that have been

held inexcusable under the Alonzo test. See e.g.

Ziegler v. Merit Systems Protection Board, 705 Fed.

Appx. 997 (Fed. Cir. 2017) (13-year delay

inexcusable).

The MSPB Final Order contends that the

Board’s records show that after he initiated the

appeal on October 20, 2017, that the appellant did

not again access the account until November 23,

2017, and that that is somehow indicative of a lack

of due diligence. Such a conclusion ignores the

reality: the matter was opened immediately after he

was given the decision; all that the e-Appeal

submission was missing was the narrative portion,

a response to “Question 16” which he was unable to

submit due to the MSPB’s system’s own fault, that

Petitioner tried to upload this final document on

November 23, 2017 (Thanksgiving Day), on his

brother-in-law's computer since he did not have one

at home. Petitioner was clearly committed to and

engaged in due diligence to protect his rights, and

did not abandon his appeal.

The MSPB records themselves confirm

Petitioner logged into his e-Appeal account on

November 23, 2017 (Thanksgiving Day so he could

use his relative’s computer), at 9:28 am. Petitioner

was unable to enter the final part, the “Question 16”

narrative into the textbox on the e-appeal website.

23

Petitioner emailed counsel at 9:42 am that same day,

“for some reason, I can’t upload my appeal[,] me and

my brother-in-law are trying can you please send it

here is my login...”. Appx. Email Exhibit. Upon

receiving this email, counsel attempted to upload

Question 16 but encountered the same problem.

Appx. Email Exhibit. Counsel attempted to both

copy and paste the draft response and manually

retype the response; both attempts were

unsuccessful. Appx. Email Exhibit. Both Petitioner

and counsel continued to attempt to upload their

document the following day, November 24, 2017, as

well as the following days. Appx. Email Exhibit.

These numerous attempts by both the Petitioner

and counsel demonstrate due diligence in the timely

filing of this appeal. See Barnes v. MSPB, 625 Fed.

Appx. 996 (Fed. Cir. 2015).

In addition to these due diligence attempts,

on or about this day, the Board’s e-file system had a

scrolling message across its home screen that said,

in sum, the system had been restored as of 1:30 pm

EST and that they apologized for any inconvenience.

This message acknowledging a problem with the

Board’s e-filing system was still scrolling on the

Board’s home screen on December 1, 2017. The

Board has conceded previously that their systems

have experienced technical difficulties. See Barnes v.

MSPB, 625 Fed. Appx. 996 (Fed. Cir. 2015).However,

contrary to the experience of Petitioner and his

24

counsel, the MSPB Final Order stated that there

was no outage or malfunction on the e-appeal

website on or around November 24, 2017. It further

stated that there was a brief down-time on different

dates—November 4, 2017, and November 7, 2017—

which did not adversely affect Petitioner since he

did not attempt to access e-Appeal either of those

days.

During Oral Arguments, a representative of

the MSPB stated that the Board only receives data

regarding an entire system outage, and there is no

way to know whether petitioner and counsel could

or

could

not

upload.

https://www.cafc.uscourts.gov/08-06-2025-20241615-green-v-mspb-audio-uploaded/. Given that

partial website disruptions are not monitored or

reported to the Board, the possibility existed that

the Board was unaware of the interruption due to

technical issues that prevented Petitioner and

counsel from uploading documents. Petitioner’s

proof of these continued attempts to upload the

appeal should have been deemed to constitute due

diligence in complying with filing requirements, and

these technical issues beyond anyone’s control

ultimately preventing a timely submission, excused.

The Board has instituted this e-filing system and

requires counsel to be familiar with it. See Barnes,

625 Fed. Appx. 996. An administrative body cannot

reasonably expect compliance with deadlines or

25

requirements when the very platform intended to

facilitate that process is not working properly. See

id.

The MSPB argued there was a lack of due

diligence by not requesting technical support or

attempting an alternative filing route. First,

Petitioner did try himself to fax the documents

before his counsel’s office was successful on

December 4 (a fact completely ignored by all

decisions). Second, although November 27, 2017 was

a Monday, this expectation to fax it over to the

Board during Thanksgiving, a federal holiday,

which had fallen on that previous Thursday,

November 23, 2017, or during the following

weekend, is wholly unreasonable and a basis

unsupported in precedent. See Herring, 778 F.3d at

1016 (10-day delay excused where “no evidence of

lengthy delay, dilatory conduct, repeated neglect, or

unexplained non responsiveness”); Barnes, 625 Fed.

Appx. 996 (requiring alternative efforts to file on a

Saturday is not reasonable).

Although Barnes is cited as a nonprecedential decision, the Board may rely on nonprecedential Federal Circuit decisions if it finds the

Court's reasoning persuasive. See Mauldin v.

United States Postal Service, 115 M.S.P.R. 513

(2011) (relying on the Court’s analysis in Ladrido, a

non-precedential decision, considering the factual

similarities between Ladrido and their case).

26

Examination of Barnes should persuade the Justices

of this Court that the MSPB’s determination was

unsupported by the evidence required to deny

Petitioner the opportunity to defend his job.

In Barnes, technical issues were encountered

when the appellant logged into their account on the

MSPB website. See Barnes, 625 Fed. Appx. 996. The

Board conceded that the website was experiencing

technical difficulties during this time. See id. In the

instant case, there was a message on the Board’s

homepage acknowledging an interruption, which

stated that the system had been restored, which still

appeared on the website on December 1, 2017.

Although the appeal in Barnes was one day late, and

Petitioner’s was, at most, five days late, counsel in

both cases conducted diligent attempts in a similar

way. Both counselors continued to try and upload

the appeal and once they realized the systems were

not working, they then sought out alternative

means of submission. Barnes sought alternative

means that Saturday following the Friday the

appeal was due. See Barnes, 625 Fed. Appx. 996.

Although petitioner and counsel sought alternative

means several days later, it should not discount this

argument. There is a universal assumption that

issues online will be resolved quickly, so the

petitioner and counsel reasonably believed that they

would be able to upload their appeal, and later when

they realized these efforts were futile, alternative

27

means of submission were sought. At Oral

Arguments for Barnes, the Board conceded that

attempts to electronically file showed signs of

diligence.

https://www.cafc.uscourts.gov/08-062025-2024-1615-green-v-mspb-audio-uploaded/; see

Barnes, 625 Fed. Appx. 996.

Moreover, the email correspondence between

Petitioner and counsel substantiate the multiple

good faith attempts that were made to upload the

necessary documents. See also Barnes, 625 Fed.

Appx. 996. Although Petitioner bears the burden of

a showing of good cause, at the time of the filing

attempts, Petitioner reasonably believed the

submission would successfully upload through the

Board’s electronic system. The MSPB argued that

the email correspondence was not sufficient

evidence to show due diligence, and they should

have mailed or faxed it. Cf. Barnes, 625 Fed. Appx.

996 (conceding attempts to electronically file

showed signs of diligence). Under these

circumstances, however, it was not practical or

required to show additional evidence. It is well

established that “[t]he appellant need not show

utter impossibility, but only that delay was

excusable in light of the particular facts and

attending circumstances where diligence or

ordinary prudence have been exercised.” See

Herring, 778 F.3d at 1014, quoting Anderson v. Dep’t

of Just., 999 F.2d 532 (Fed. Cir. 1993). Requiring

28

parties to anticipate technical issues and generate

such proof in advance would contradict the Board’s

representation that e-Appeal is the proper method

for submissions. See Barnes, 625 Fed. Appx. 996.

Most importantly, the MSPB never stated

that it was substantially prejudiced by this delay –

or even effected at all. See Anderson v. Dep’t of Just.,

999 F.2d 532 (Fed. Cir. 1993) (“The Board stated: If

the employee gives a reasonable excuse for the delay,

such excuse should be accepted by the presiding

official, absent a showing of substantial prejudice to

the agency caused by the delay in filing.”). Given the

short delay over a holiday weekend, it is unlikely

that the Board was unduly prejudiced in these

circumstances.

Petitioner respectfully urges the Court to

recognize these multiple instances of unsupported

findings the MSPB relied upon in reaching this

decision, and to grant the Petition for Writ of

Certiorari to review these errors, as the decision

should be reversed for an abuse of discretion, and

remanded for consideration of the merits of Mr.

Green’s appeal. See 5 U.S.C. § 7703(c)(3).

This Court Must Resolve the Inconsistent

Application of Alonzo Amongst Jurisdictions

The decision by the MSPB before the Court is

a violation of 5 U.S.C.§7703(c)(1). It is arbitrary,

capricious, and an abuse of discretion. In general,

29

review of a decision due to it being arbitrary and

capricious is extremely narrow. See Baseden v.

MSPB, 629 Fed. Appx. 962 (Fed. Cir. 2015) (citing

U.S. Postal Serv. v. Gregory, 534 U.S. 1 (2001)).

Under this standard, the MSPB receives “wide

latitude” of discretion, and it is not for the Federal

Circuit Court to substitute their own judgment for

that of the Board. See Baseden, 629 Fed. Appx. 962

(citing U.S. Postal Serv. 534 U.S. 1 (2001)).

Inconsistent and/or incomplete application of the

Alonzo factors is per se arbitrary, capricious, and an

abuse of discretion.

The MSPB is supposed to be an independent,

quasi-judicial agency, and although it is granted

wide discretion to leverage its specialized expertise

and promote a fair and efficient federal workforce, it

needs guidance in its unyielding application of the

Alonzo factors. It is not only legally necessary, it is

in the best interests of federal employees and society.

Throughout the Federal and Regional Circuit

Courts, the Alonzo factors have been applied in

different, and contradictory, ways. See Ziegler v.

MSPB, 705 Fed. Appx. 977 (Fed. Cir. 2017)

(considering all of the Alonzo factors); see Kerr v.

MSPB, 908 F.3d 1307 (Fed. Cir. 2018). (considering

three of the Alonzo factors); see Herring v. Merit Sys.

Prot. Bd., 778 F.3d 1101 (Fed. Cir. 2015)

(considering approximately four of the Alonzo

factors); see Skaggs v. Merit Sys. Prot. Bd., 253 Fed.

30

Appx. 930 (Fed. Cir. 2007) (remanding this case for

further consideration as to whether good cause

exists for a delay since “the AJ seems to have given

little consideration to the range of factors relevant

to whether good cause for delay has been shown”

and focused solely on the negligence of Skaggs’

attorney, which was “too narrow of an approach”).

In analogous circumstances, the Federal Circuit has

held that, in the application of the Douglas factors

in determining the reasonableness of the penalty of

removal, failure to consider a relevant factor is an

abuse of discretion. See Webster v. Dep’t of Army, 911

F.2d 679 (Fed. Cir. 1990); see also VanFossen v.

Dep’t of Hous. & Urban Dev., 748 F.2d 1579 (Fed.

Cir. 1984). The same conclusion should be reached

here.

There are strong policy arguments recognized

by the Board to hear cases on their merits. See

Skaggs v. Merit Sys. Prot. Bd., 252 Fed. Appx. 930

(Fed. Cir. 2007) (quoting Alonzo v. Dep’t of the Air

Force, 4 M.S.P.B 262 (1980)). Further, the Board has

said that “generally...in cases such as these, any

doubt about whether good cause has been shown

should be resolved in favor of the appellant.” See

Alonzo, 4 M.S.P.B. 262, 266. The good cause that the

Alonzo factors seek to determine is an "elastic

concept [which] entitles the employee to the

application of the broad equitable principles of

justice and good conscience.” See id. at 183-184.

31

Taking this a step further, the Civil Service

Reform Act was enacted in 1978 to improve and

modernize federal civil service. See Civil Service

Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111 (1978). The Act’s Statement of Purpose states:

“[f]ederal [e]mployees should receive appropriate

protection through increasing authority and powers

of the Merit Systems Protection Board in processing

hearings and appeals affecting federal employees.”

See id. Federal employees are the foundation of the

federal system and agencies they service. It is vital

to uphold the utmost level of protection for these

employees. In doing so, the Alonzo factors must be

consistently applied in each case. Not only does even

application of those factors ensure that each case is

being decided on the merits, rather than procedural

technicalities, such consistency upholds fairness in

adjudication, safeguards employee interests, and

reenforces principles of due process by the MSPB.

Further, a decision in this matter would clarify this

Court’s recent decision in Loper Bright Enterprises

v. Raimondo, 603 U.S. 369 (2024) as it pertains to

decisions of the MSPB. In Loper Bright, this Court

overturned the concept of Chevron deference, see

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, 467 U.S. 837 (1984). Applying Loper Bright

and its effective shift of authority from federal

agencies to courts by eliminating deference to

agency interpretation, deference to the MSPB’s

interpretation of the case before this Court is

32

unwarranted, and provides an opportunity for this

Honorable Court to review and rectify the abuses

below that resulted in denial of a long-tenured civil

servant’s livelihood.

CONCLUSION

The variation in application of the Alonzo

factors is an issue that must be resolved. The

resolution is a uniform and routine application of all

Alonzo factors by the Merit Systems Protections

Board that is consistent with its mandate to protect

the federal workforce. Petitioner urges the Supreme

Court of the United States to grant the Petition for

Writ of Certiorari to present a solution. Such action

would ensure unity throughout the United States.

For all the foregoing reasons, Petitioner

respectfully submits that the Court should grant the

Petition.

Dated: November 5, 2025

Respectfully Submitted,

/s/ Rachel Demarest Gold, Esq.

Rachel Demarest Gold, Esq.

ABRAMS FENSTERMAN, LLP

Attorneys For Petitioner

Three Dakota Drive, Suite 300

Lake Success, New York 11042

(516) 328-2300

rgold@abramslaw.com

33

CERTIFICATE OF COMPLIANCE

As required by Supreme Court Rule 33.1(h), I certify

that the PETITION FOR A WRIT OF CERTIORARI

and APPENDIX filed in the above entitled case

complies with the typeface requirement of Supreme

Court Rule 33.1(b), being prepared in New Century

Schoolbook 12 point for the text and 10 point for the

footnotes, and this brief contains 6,891words,

excluding the parts that are exempted by Supreme

Court Rule 33.1(d), as needed.

Dated: New York, New York

November 5, 2025

/s/ Rachel Demarest Gold, Esq.

Rachel Demarest Gold, Esq.

ABRAMS FENSTERMAN, LLP

Attorneys For Petitioner

Three Dakota Drive, Suite 300

Lake Success, New York 11042

(516) 328-2300

rgold@abramslaw.com

l