Opinion

John Chapman v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Sep 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOHN WAYNE CHAPMAN, DOCKET NUMBER

Appellant, CH-0752-22-0269-I-1

UNITED STATES POSTAL SERVICE, DATE: September 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marisa L. Williams , Esquire, Englewood, Colorado, for the appellant.

Alexander R. Rivera , Esquire, Denver, Colorado, 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

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

affirmed the appellant’s 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2 The appellant filed the instant appeal challenging his removal. Initial

Appeal File (IAF), Tab 1. On May 22, 2023, the administrative judge issued an

initial decision affirming the appellant’s removal. IAF, Tab 67, Initial Decision

(ID). She found that the agency proved its charges and that the appellant failed to

prove his affirmative defenses of sex discrimination, due process violation,

harmful procedural error, laches, and retaliation for his prior Board appeal.

ID at 6-32. She also concluded that the penalty of removal was reasonable and

promoted the efficiency of the service. ID at 33-37. The initial decision

informed the appellant how to file a petition for review and explained that the

deadline for filing a petition for review was June 26, 2023. ID at 37.

¶3 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. However, he did not file until June 29, 2023, three days after the

deadline for doing so. Id. The agency has filed a response requesting that the

petition for review be dismissed as untimely filed without good cause shown.

PFR File, Tab 3 at 4-8.

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 A petition for review generally must be filed within 35 days after the date of

the issuance of the initial decision, or if the party filing the petition shows that

the initial decision was received more than 5 days after it was issued, within

30 days after the party 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 Board will

waive the time limit for filing a petition for review only upon a showing of good

cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.

§ 1201.114(g).

¶5 The party who submits an untimely petition for review has the burden of

establishing good cause for the untimely filing by showing that he exercised due

diligence or ordinary prudence under the particular circumstances of the case.

Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good

cause, the Board will consider the length of the delay, the reasonableness of his

excuse and the party’s showing of due diligence, whether he is proceeding pro se,

and whether he has presented evidence of the existence of circumstances beyond

his control that affected his ability to comply with the time limits or of

unavoidable casualty or misfortune which similarly shows a causal relationship to

his inability to timely file his petition. Id.; see 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).

¶6 Here, the administrative judge issued the initial decision on May 22, 2023,

and served it on the appellant that same day. 2 ID at 1; IAF, Tab 68. Thus, the

appellant was required to file his petition for review no later than June 26, 2023.

ID at 37. As noted above, the appellant’s petition for review of the initial

decision was filed on June 29, 2023, three days after the deadline set forth in the

initial decision. 3 PFR File, Tab 1. Because the filing appeared untimely, the

Board’s e-Appeal system automatically generated questions concerning

timeliness, to which the appellant responded, “I am not late on this response. I

live in Missouri and i initially tried to submit my respone [sic] at 11:11pm on the

26th of June. It is currently 11:23 pm in Missouri and i need to submit this.”

Id. at 5.

On review, the appellant asserts that he received the initial decision on May 27, 2023.

PFR File, Tab 1 at 4. However, Board documents served electronically on e-filers are

deemed received on the date of electronic submission. 5 C.F.R. § 1201.14( l)(2) (2023).

When a statute or regulation “deems” something to be done or to have been done, the

event is considered to have occurred whether or not it actually did. Lima v. Department

of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Further, even if the appellant received

the initial decision on May 27, 2023, as he claimed, he would still be required to file his

petition for review by June 26, 2023. See 5 C.F.R. § 1201.114(e).

Pursuant to the Board’s regulations, all pleadings filed via e-Appeal are time stamped

with Eastern Time, but the timeliness of a pleading is determined based on the time

zone from which the pleading was submitted. See 5 C.F.R. § 1201.14(m) (2023). The

petition for review in this matter was stamped “2023-06-30 00:43:29” by e-Appeal. As

the appellant’s address of record at the time of filing was located in the Central Time

Zone, the pleading was filed on June 29, 2023, at 11:43 p.m. Central Time. PFR File,

Tab 1.

¶7 The Clerk of the Board issued an acknowledgment letter, instructing the

appellant that an untimely filed petition for review must be accompanied by a

motion to either accept the filing as timely and/or waive the time limit for good

cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)). The letter further

instructed the appellant that if he wished to file the aforementioned motion, he

must include a statement signed under penalty of perjury or an affidavit showing

that the petition was either timely filed or good cause existed for the

untimeliness. Id. at 1-2. It also included a form for the motion, sworn statement,

and affidavit and provided a deadline of July 15, 2023. Id. at 2, 7-8. Despite the

instructions contained in the acknowledgment letter, the appellant did not submit

a sworn statement, affidavit, or further explanation for the untimely filing.

¶8 We considered whether the appellant’s claim that he timely filed his petition

for review was accurate, PFR File, Tab 1 at 4, and the apparent delay resulted

from issues with the Board’s e-Appeal system. Under limited circumstances, the

Board will excuse delays in filing caused by difficulties encountered with the e-

Appeal system. E.g., Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶¶ 6-

8 (2010) (excusing a filing delay when the appellant alleged that he attempted to

electronically file his petition for review on time and the e-Appeal system showed

that he had, in fact, accessed the system prior to the date that his petition was due,

and after he became aware that his petition had not been filed, the appellant

promptly contacted the Board and submitted a petition for review that included an

explanation of his untimeliness); Lamb v. Office of Personnel Management, 110

M.S.P.R. 415, ¶ 9 (2009) (finding good cause for the untimely filing of a petition

for review when the appellant reasonably believed he timely filed his appeal by

completing all questions on the appeal form and exited the website without

receiving a clear warning that his appeal was not filed). However, we find that

the appellant’s failure to timely file his submission is not excusable here.

¶9 The appellant has not shown any circumstances beyond his control, such as

unavoidable casualty or misfortune, which affected his ability to comply with the

time limits. To the extent the appellant contends that he was unable to comply

with the June 26, 2023 deadline, the Board notes that he did not submit a request

for an extension of time to file his petition for review nor did he file the

timeliness motion, as mentioned above, to explain his untimeliness. Further, to

the extent the appellant alleges that he experienced difficulty submitting his

petition via e-Appeal, there is no evidence in the record that he attempted to

pursue alternate means to timely file his petition. See 5 C.F.R. § 1201.14(f)

(2023) (“A party or representative who has registered as an e-filer may file a

pleading by non-electronic means, i.e., via postal mail, fax, or personal or

commercial delivery.”). Although he is proceeding pro se on review and his

3-day filing delay is minimal, under the circumstances of this case, we find that

the appellant has failed to establish good cause for his delay in filing his petition

for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to excuse a 7-day

delay); Schuringa v. Department of the Treasury, 106 M.S.P.R. 1, ¶¶ 4 n.*, 9, 14

(2007) (finding a 4-day delay minimal). Smith v. Department of the Army,

105 M.S.P.R. 433, ¶ 6 (2007) (declining to excuse the appellant’s 1 -day delay in

filing his petition for review when the appellant failed to explain the delay).

¶10 Accordingly, we dismiss the petition for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petition for review. The initial decision remains the final decision of the

Board regarding the appellant’s removal.

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

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.

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).

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

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

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