Opinion

Selwyn Sanderson v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jun 27, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.0%

instructing the Board to consider the length of the delay in every good cause determination

How later courts described this case

instructing the Board to consider the length of the delay in every good cause determination

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SELWYN D. SANDERSON, DOCKET NUMBER

Appellant, SF-0752-19-0470-I-1

UNITED STATES POSTAL SERVICE, DATE: June 27, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Selwyn D. Sanderson , Houston, Texas, pro se.

Michael R. Tita , Esquire, and Roderick Eves , St. Louis, Missouri, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed his removal appeal as untimely filed without good cause shown.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the initial decision is based on an erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

judge’s rulings during either the course of the appeal or the initial decision

were not consistent with required procedures or involved an abuse of discretion,

and the resulting error affected the outcome of the case; or new and material

evidence or legal argument is available that, despite the petitioner’s due

diligence, was not available when the record closed. Title 5 of the Code of

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully

considering the filings in this appeal, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

consider the length of the filing delay in determining whether the appellant has

shown good cause for the untimely filing of his appeal and to consider the

potential effect of the Servicemembers Civil Relief Act of 2003 (SCRA), we

AFFIRM the initial decision.

We affirm the administrative judge’s findings that the appellant’s appeal was

untimely filed and that he has failed to show good cause for the untimely filing,

as modified to consider the length of the filing delay.

An appellant bears the burden of proving by preponderant evidence 2 the

timeliness of his Board appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). In cases such as

this removal appeal, when the appellant has filed a formal complaint of

discrimination with the agency in connection with a matter otherwise appealable

to the Board, the appeal must be filed within 30 days after he receives the agency

resolution or final decision on the discrimination issue. Brown v. U.S. Postal

Service, 106 M.S.P.R. 12, ¶ 8 (2007); 5 C.F.R. § 1201.154(b)(1).

For the reasons discussed in the initial decision, we agree with the

administrative judge’s finding that the appellant’s removal appeal was untimely

A preponderance of the evidence is the degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

filed. Initial Appeal File (IAF), Tab 12, Initial Decision (ID) at 5-6.

Specifically, the administrative judge found that the undisputed record reflects

that the appellant filed a formal equal employment opportunity (EEO) complaint

concerning his January 2016 removal and that he received the agency’s final

agency decision (FAD) on April 6, 2019. 3 ID at 6; IAF, Tab 6 at 14-25, 106-10.

The administrative judge further found that this removal appeal was due on or

before May 6, 2019, which was the 30th day after April 6, 2019. ID at 6; see

5 C.F.R. §§ 1201.23, 1201.154(b)(1). In addition, the administrative judge found

that the undisputed record reflects that the appellant electronically filed this

appeal on June 4, 2019. ID at 6; IAF, Tab 1; see 5 C.F.R. § 1201.4(l). Therefore,

the administrative judge found that this appeal was “untimely filed by at least

one day.” ID at 6.

The time limit for appealing an agency action to the Board may be waived

by the Board if the appellant demonstrates good cause for such waiver by

preponderant evidence. Walls v. Merit Systems Protection Board, 29 F.3d 1578,

1581 (Fed. Cir. 1994); see 5 C.F.R. §§ 1201.12 (providing that an administrative

judge may waive a Board regulation for good cause shown), 1201.22(c)

(providing that the Board will dismiss an untimely filed appeal unless a good

reason for the delay is shown). Although the administrative judge here correctly

discussed the factors set forth in 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), that

the Board considers in making a good cause determination, he erroneously failed

to consider the length of the filing delay. ID at 6; see Walls, 29 F.3d at 1582

(instructing the Board to consider the length of the delay in every good cause

determination). Therefore, we modify the initial decision as follows to consider

We defer to the agency’s implicit finding that the appellant’s EEO complaint was

timely filed. IAF, Tab 6 at 15 n.1; see Cloutier v. U.S. Postal Service, 89 M.S.P.R. 411,

¶ 6 (2001) (observing that the Board defers to the employing agency and the Equal

Employment Opportunity Commission’s determinations regarding the timeliness of

discrimination complaints).

the length of the filing delay in determining whether the appellant has shown

good cause for the untimely filing of his appeal.

For the reasons explained above and in the initial decision, we agree with

the administrative judge’s findings that the deadline for filing this removal appeal

was May 6, 2019, and the appellant filed this appeal on June 4, 2019. ID at 6.

Thus, we find that the length of the filing delay is 29 calendar days. We further

find that the length of the appellant’s 29-day filing delay does not weigh in his

favor because it is significant. See Summerset v. Department of the Navy,

100 M.S.P.R. 292, ¶ 7 (2005) (finding a 33-day filing delay significant).

Considering the significant length of the delay together with the other relevant

factors addressed in the initial decision, such as the appellant’s pro se status, we

agree with the administrative judge’s finding that the appellant has failed to show

good cause for the untimely filing of his appeal. ID at 6-8; see, e.g., Allen v.

Office of Personnel Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (finding that,

although the appellant’s pro se status was a factor weighing in his favor, it was

insufficient to excuse his unexplained, 14-day filing delay). In particular, the

administrative judge noted that the agency’s FAD expressly informed the

appellant that he had to file a Board appeal “no later than thirty (30) days of the

date of receipt of this decision.” ID at 7; IAF, Tab 6 at 24-25. Further, the

administrative judge found that the appellant did not adequately set forth any

factors addressing his ability to timely file this appeal. ID at 7.

The appellant has failed to provide a basis to disturb the initial decision.

For the first time on review, the appellant argues that he “tried to reach out

for help on this MSPB filing” from several attorneys, but they responded, “it was

too expensive, time consuming and they had a high case load.” Petition for

Review (PFR) File, Tab 1 at 4. Further, he claims that he was on a military

assignment on a “grand scale,” providing logistical support and serving as an

instructor for the Global Medic exercise. Id. at 4, 10-12. In particular, he asserts

that he was responsible for over 3 million dollars in medical supplies needed for

this exercise and that he collaborated with other members of his unit to create

real-world combat scenarios. Id. at 4. He argues that, after preparing for this

time-consuming exercise and while getting ready to travel, he “realized this

MSPB document” and “sent [his] response even if it was past due.” Id. In

addition, he states that he received an achievement award for the exercise and a

promotion. Id.

To support his arguments, the appellant has included the following

documentation for the first time on review: (1) a September 17, 2018 Army

memorandum contemplating revised Battle Assembly dates for fiscal year 2019;

(2) a February 20, 2019 Army order to report for 20 duty days on June 8, 2019;

(3) a March 13, 2019 Army order amending a prior order to reflect a 2-day duty

period beginning January 28, 2019; (4) a March 27, 2019 Army order to report for

13 duty days on April 14, 2019; (5) a March 29, 2019 Army order to report for

6 duty days on March 31, 2019; (6) an undated article about the June 2019 Global

Medic exercise; (7) a June 22, 2019 certificate of achievement for providing

training during the 2019 Global Medic exercise; and (8) a June 27, 2019 Army

order documenting his promotion to a higher rank effective July 1, 2019. 4

PFR File, Tab 1 at 5-15, Tab 4 at 5, Tab 5 at 9-10.

The appellant has not explained why, despite his due diligence, he was

unable to provide the arguments or evidence described above prior to when the

record before the administrative judge closed. See Banks v. Department of the

Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board generally will not

consider an argument raised for the first time in a petition for review absent a

showing that it is based on new and material evidence not previously available

despite the party’s due diligence); Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980) (finding that the Board generally will not consider evidence

submitted for the first time with the petition for review absent a showing that it

The appellant also has included a copy of the Office of the Clerk of the Board’s

September 12, 2019 letter acknowledging his petition for review. PFR File, Tab 2,

Tab 5 at 4-8.

was unavailable before the record was closed despite the party’s due diligence).

Nevertheless, even considering such arguments and evidence, we find they do not

change the outcome of this appeal for the following reasons. Cf. Brown,

106 M.S.P.R. 12, ¶¶ 3, 10, 12 (reopening the appellant’s removal appeal to

consider the SCRA’s effect on the timeliness issue when he presented for the first

time on review evidence and argument that his appeal was timely filed as a result

of his military duty).

The SCRA applies to active-duty servicemembers as well as to reserve

members of the uniformed services who are “ordered to report for military

service.” 50 U.S.C. § 3917(a); Brown, 106 M.S.P.R. 12, ¶ 13. The tolling

provision of the SCRA provides:

The period of a servicemember’s military service may not be

included in computing any period limited by law, regulation, or order

for the bringing of any action or proceeding in a court, or in any

board, bureau, commission, department, or other agency of a State

(or political subdivision of a State) or the United States by or against

the servicemember or the servicemember’s heirs, executors,

administrators, or assigns.

50 U.S.C. § 3936(a); see Neighoff v. Department of Homeland Security,

122 M.S.P.R. 86, ¶¶ 6-10 (2015) (applying the SCRA tolling provision to Board

proceedings); Brown, 106 M.S.P.R. 12, ¶¶ 12-16 (same). The Board has held that

a showing of military service under the SCRA and its predecessor the Soldiers’

and Sailors’ Civil Relief Act of 1940 (SSCRA) automatically tolls the filing

period. Neighoff, 122 M.S.P.R. 86, ¶ 10; see Brown, 106 M.S.P.R. 12, ¶ 13. The

SCRA defines “military service” in the case of a servicemember as “active duty,”

as defined at 10 U.S.C. § 101(d)(1). 50 U.S.C. § 3911(2)(A)(i); Brown,

106 M.S.P.R. 12, ¶ 13. In turn, title 10 defines “active duty” as “full-time duty in

the active military service of the United States” and includes “full-time training

duty, annual training duty, and attendance, while in the active military service, at

a school designated as a service school by law or by the Secretary of the military

department concerned.” 10 U.S.C. § 101(d)(1); Brown, 106 M.S.P.R. 12, ¶ 13.

Here, the Army’s March 27, 2019 order for the appellant to report for

active-duty training school for 13 duty days on April 14, 2019, suggests he

performed “active duty” service under 10 U.S.C. § 101(d)(1). 5 PFR File, Tab 4

at 5, Tab 5 at 9-10 (ordering him to “active duty training school”); cf. Brown,

106 M.S.P.R. 12, ¶ 15 (observing that the fact that “inactive-duty training” is

defined separately from “active duty” in title 10 and is not otherwise referenced

in or by the SCRA makes it likely that it does not constitute “military service”

under the SCRA). Even assuming, without deciding, that the appellant’s

attendance at active-duty training school constitutes “military service” under the

SCRA that tolled the relevant 30-day filing period for 13 days, from April 14

through 26, 2019, his Board appeal still would be 15 days untimely. Specifically,

because the 43rd day after the April 6, 2019 date on which the appellant received

the agency’s FAD fell on Sunday, May 19, 2019, the filing deadline would have

been Monday, May 20, 2019. See 5 C.F.R. §§ 1201.23, 1201.154(b)(1). Thus,

the appellant’s June 4, 2019 appeal would have been filed 15 days past the

May 20, 2019 deadline.

The appellant’s remaining Army orders concern the following duty periods:

January 28 through 29, 2019; March 31 through April 5, 2019; and June 8

through 27, 2019. PFR File, Tab 1 at 5-9. These potential periods of “military

service” under the SCRA cannot serve to toll the filing period for this Board

appeal because they did not occur during the relevant period discussed above,

from April 6 through May 20, 2019. Moreover, the appellant does not argue, and

the record does not establish, that he performed “military service” under the

The record before the administrative judge reflects that the appellant is a member of

the Army Reserve. IAF, Tab 6 at 84, 87, 103, 115, 120. The appellant’s claimed

periods of active-duty military service from May 2014 through March 2018 occurred

more than 1 year before he received the agency’s April 2019 FAD. ID at 7; IAF, Tab 9

at 40-41. Thus, they are not relevant to the dispositive issue of whether the appellant

timely filed this removal appeal with the Board after receiving the agency’s FAD.

Moreover, the administrative judge properly informed the appellant that he could file a

separate Board appeal under the Uniformed Services Employment and Reemployment

Rights Act of 1994. ID at 4-5.

SCRA on any of the monthly “Battle Assembly” dates for fiscal year 2019

contemplated in the September 17, 2018 Army memorandum. Id. at 14-15; cf.

Brown, 106 M.S.P.R. 12, ¶ 15 n.3 (noting that at least one court has determined

under the former SSCRA that regular, weekend reserve duty did not qualify as

“active duty” within the meaning of the SSCRA’s tolling provision).

In addition, we find that the appellant’s arguments and evidence submitted

on review do not show good cause for the untimely filing of his Board appeal.

Although the appellant’s pro se status is a factor weighing in his favor, see Allen,

97 M.S.P.R. 665, ¶ 8, we find that it is outweighed by the other relevant factors,

see Moorman, 68 M.S.P.R. at 62-63. In particular, a 15-day filing delay is not

minimal. See Allen, 97 M.S.P.R. 665, ¶ 8 (finding a 14-day delay not minimal).

As discussed in the initial decision, the agency’s FAD expressly informed the

appellant of the 30-day filing deadline. ID at 7; IAF, Tab 6 at 24-25. Further, the

appellant’s claims that he sought help from attorneys and was busy preparing for

the June 2019 Global Medic exercise do not establish good cause for the filing

delay. PFR File, Tab 1 at 4, 10-12; see Huskins v. U.S. Postal Service,

100 M.S.P.R. 664, ¶ 6 (2006) (stating that an appellant’s inability to retain or

afford an attorney does not establish good cause for a filing delay); see also

Crozier v. Department of Transportation, 93 M.S.P.R. 438, ¶ 9 (2003) (observing

that the Board has held that general personal difficulties do not constitute good

cause for waiving a filing deadline). Moreover, the appellant has not presented

any evidence of circumstances beyond his control or of unavoidable casualty or

misfortune that prevented him from timely filing his appeal. See Moorman,

68 M.S.P.R. at 63.

Accordingly, we affirm the dismissal of this removal appeal as untimely

filed without good cause shown. 6

The appellant’s argument on review that his case has merit and he was discriminated

against is immaterial to the dispositive timeliness issue. PFR File, Tab 1 at 4; see Dow

v. Department of Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding that the

appellant’s assertions and submissions concerning the merits of his appeal did not

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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).

establish good cause for waiving the filing deadline because they did not pertain to the

timeliness issue).

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. 8 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