The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TONY BRYANT, DOCKET NUMBER
Appellant, CH-0752-20-0148-I-1
v.
DEPARTMENT OF THE ARMY, DATE: July 17, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
C. Mike Moulton , Esquire, Elizabethtown, Kentucky, for the appellant.
Timothy Harner , Esquire, and Whitney Alfred Campbell , Esquire, Fort
Knox, Kentucky, 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.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
REMAND the appeal to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was employed as a GS-7 Human Resources Assistant with
the agency. Initial Appeal File (IAF), Tab 4 at 22. On December 3, 2019, the
appellant was removed from his position, and thus had until January 2, 2020, to
file an appeal of his removal with the Board. Id. at 22-23; 5 C.F.R. § 1201.22(b).
Due to the Board’s record showing that the appellant filed his appeal on January
3, 2020, the administrative judge dismissed the appellant’s appeal as untimely
filed. IAF, Tab 11, Initial Decision (ID). Although the administrative judge
acknowledged that the appeal was only filed a day late, she found that absent a
showing of good cause, the timeliness requirement could not be waived. ID
at 3-4.
The appellant filed a petition for review of the initial decision. Petition for
Review (PFR) File, Tab 1. With his petition, the appellant attaches a signed
statement by his previous attorney explaining the relevant events. Id. at 24.
According to the statement, the appellant retained the attorney on January 2,
2020, for the limited purposes of drafting his initial Board appeal. Id. Due to
technical difficulties with his email, the appellant was unable to receive and sign
the appeal; accordingly, the attorney faxed a copy of the unsigned appeal to the
regional office on January 2, 2020, to meet the filing deadline. 2 Id. at 24-25. The
appellant also attaches to his petition for review a copy of the unsigned appeal,
which bears an automatically generated printing typically created when a
document is faxed—the printing shows that it was faxed to the fax number at the
Board’s Central Regional Office on January 2, 2020. Id. at 26-45. The attorney
further explained that, on January 3, 2020, he faxed a copy of the signed appeal to
2
Because the attorney was retained for the limited purpose of drafting the appeal, the
attorney did not file the appeal as the appellant’s representative. PFR, Tab 1 at 4-5,
24-25.
3
the regional office to correct the previous filing’s deficiency. Id. at 25. The
January 3, 2020 signed appeal is the only copy of the appellant’s appeal included
in the Board’s record. IAF, Tab 1.
The agency has filed a response to the appellant’s petition for review. PFR
File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board's regulations provide that an appeal must be filed with the Board
no later than 30 days after the effective date of the agency's action, or 30 days
after the date of the appellant's receipt of the agency decision, whichever is later.
5 C.F.R. § 1201.22(b). The date of a filing submitted by facsimile transmittal is
determined by the date of the fax. 5 C.F.R. § 1201.4(l). The Board will waive
the filing deadline only upon a showing of good cause. 5 C.F.R. § 1201.22(c). In
this appeal, as discussed above, the administrative judge determined that the
appeal was filed 1 day late and the appellant failed to show good cause. ID
at 2-4.
Upon review of the record, we find that a remand is appropriate in this
matter because the evidence establishes that the appellant’s appeal was timely
filed and it was the regional office’s failure to adhere to the Board’s procedures
for processing appeals that resulted in the dismissal of the appellant’s appeal.
According to the Judge’s Handbook, when an appeal is received, the regional or
field office must review the appeal and determine whether it contains the
information required by 5 C.F.R. § 1201.24(a). Merit Systems Protection Board,
Judge’s Handbook 3, available at https://www.mspb.gov/appeals/files/
ALJHandbook.pdf . While deficiencies, such as a lack of signature, may be cause
for rejecting the appeal, the appeal should still be docketed as long as it contains
sufficient information. Id. at 3-4. If the office determines that it should reject the
appeal, then a standard rejection notice must be issued to the appellant identifying
the specific deficiency. Id. at 5, 8. Whether formally rejected or not, for the
4
purposes of determining timeliness, the receipt date of the incomplete appeal is
considered the filing date of the appeal. Id.; Taylor v. Office of Personnel
Management, 73 M.S.P.R. 142, 143 (1997) (finding that the original filing of the
deficient submission was the filing date after the filing was returned by the
receiving office for a technical deficiency).
In this matter, the unsigned appeal faxed on January 2, 2020 had sufficient
information for the regional office to docket the appeal. PFR File, Tab 1
at 26-45. Indeed, the appeal contained everything listed in 5 C.F.R. § 1204.24(a)
except for the appellant’s signature. Id. While the regional office could have
rejected the appeal due to the lack of signature, if that was the route it decided
upon, it should have issued a rejection notice to the appellant, which it did not.
Judge’s Handbook at 5, 8.
In sum, the evidence establishes that the appellant faxed an incomplete
appeal to the regional office on January 2, 2020. PFR File, Tab 1 at 24-45.
Consistent with the Board’s practice, January 2, 2020, should be treated as the
filing date of the appellant’s appeal. Judge’s Handbook at 5, 8; Taylor,
73 M.S.P.R. 142, 143. Therefore, we find that the appeal was timely filed and
that the administrative judge erred in dismissing the appeal as untimely filed. 3
Our finding in this appeal is similar to our reasoning in Gordon v.
Department of the Air Force, 104 M.S.P.R. 358, ¶ 5 (2006). In Gordon, the
Board remanded an appeal that was dismissed for failure to prosecute after the
appellant missed several deadlines and conferences scheduled by the
administrative judge. Id., ¶ 2-3. Upon review, the Board determined that the
regional office failed to serve the appellant in the manner he elected, serving him
3
The agency argues in its response to the petition for review that the Board should not
consider the evidence presented by the appellant on review because he did not establish
that this evidence was unavailable before the record closed. PFR File, Tab 4. Pursuant
to 5 C.F.R. § 1201.115(e), the Board has the authority to consider any argument on
appeal. Because the appellant’s rights were substantively prejudiced by an error
committed by the regional office, we do not believe the timing of the submission of the
evidence should control the outcome of this matter.
5
via mail as opposed to electronically. Id., ¶ 5. The Board found that the regional
office’s failure to adhere to Board regulations prejudiced the appellant. Id. As a
result, the Board remanded the appeal to the regional office for processing. Id.,
¶ 6. We find that a remand is appropriate here for the same reasons.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication as a timely filed appeal in accordance with this Remand
Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.