The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA A. GOULART, DOCKET NUMBER
Appellant, SF-0353-13-4838-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 5, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Gerald Cohen, Santa Monica, California, for the appellant.
Denise M. Alter, Long Beach, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal as untimely filed. Generally, we grant petitions such as this
one only when: 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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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 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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed an appeal alleging that the agency failed to restore her
following her partial recovery from a compensable injury action. Initial Appeal
File (IAF), Tab 1. The administrative judge dismissed the appeal as untimely
filed. Initial Decision (ID) at 1. Specifically, in January 2013, the appellant, who
has not worked since 2010, submitted on three separate occasions medical
documentation to the agency. The agency conducted a search for work but found
none for her. On May 2, 2013, the agency notified the appellant in writing that
there was no work available for her and the letter advised her that she could file
an appeal with the Board within 30 days of the May 2, 2013 letter. IAF, Tab 6
at 67. In response to additional documentation submitted by the appellant, the
agency conducted another work search and again found no available work within
her medical restrictions. On July 31, 2013, the agency sent the appellant another
letter advising her that another work search had been performed and that no
available work had been found. The letter also advised the appellant of her Board
appeal rights from the July 31, 2013 letter and notified her of the 30-calendar day
deadline for filing a Board appeal. Id. at 9. The deadline for filing a Board
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appeal of the July 31st letter was August 30, 2013. The appellant filed her appeal
on September 9, 2013. IAF, Tab 1.
¶3 It is undisputed that the appellant filed her appeal 40 days after the effective
date of the agency’s July 31, 2013 letter denying her request to be restored
following her partial recovery from a compensable injury. See id. Thus, the
appellant’s appeal was untimely filed and the issue is whether she has shown that
she exercised due diligence or ordinary prudence under the particular
circumstances of this case.
¶4 On appeal, the appellant argued that she was not bound by the deadlines in
the letters because she did not receive a “formal agency decision.” IAF, Tab 7.
She asserted that she filed an equal employment opportunity (EEO) complaint on
May 2, 2013, and that a redress-mediation was held on August 9, 2013, which
failed to allow her to return to work. Id. She also asserted that she timely filed
her appeal based on the date of the unsuccessful August 9, 2013 EEO mediation.
Id. However, the administrative judge found that the July 31, 2013 letter notified
the appellant of her Board appeal rights including the 30-day filing deadline. ID
at 4. The administrative judge found further that the unsuccessful August 9, 2013
EEO mediation is unrelated to her Board appeal, and that the record contains no
indication that the appellant ever filed a formal EEO complaint. ID at 2-3. Thus,
the administrative judge dismissed the appeal as untimely, finding that waiting on
the outcome in another forum, or pursuing other avenues of redress, do not
constitute good cause for the untimely filing of an appeal. ID at 4.
¶5 On review, the appellant argues that the agency’s July 31, 2013 letter did
not constitute a final agency decision, and thus she should not be required to meet
the 30-day filing deadline based on that letter. Petition for Review (PFR) File,
Tab 1. She asserts that she has received seven similar letters in the past few years
and that each time she declined the option to file an appeal with the Board
knowing that another work search would be performed within a few months. The
appellant also asserts that she should not be held to filing within 30 days from the
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July 31, 2013 letter because she was hoping to resolve the matter during the
August 9, 2013 EEO mediation. Id.
¶6 The Board’s regulations provide that an appeal must be filed no later than
30 days after the effective date, if any, of the action being appealed, or 30 days
after the date of receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b). The regulations further provide that, if a party does not submit an
appeal within the applicable time limit, it will be dismissed as untimely filed
unless a good reason for the delay is shown. 5 C.F.R. § 1201.22(c); Cranston v.
U.S. Postal Service, 106 M.S.P.R. 290, ¶ 8 (2007). To establish good cause for
an untimely appeal, a party must show that she exercised due diligence or
ordinary prudence under the particular circumstances of the case. Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of her excuse and her showing of due diligence,
whether she is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to her inability to timely file her petition. 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).
¶7 Here, the record reflects that the agency’s decision letter properly informed
the appellant, who is represented, of her right to appeal to the Board, and it
specified that any appeal with the Board had to be filed “within thirty (30)
calendar days from the receipt of this letter.” IAF, Tab 6, at 9. The appellant
does not dispute that she timely received a copy of the agency’s decision letter.
See IAF, Tabs 4, 7; PFR File, Tabs 1, 6. Nor has she argued that she was
unaware of the deadline to file a Board appeal. See IAF, Tabs 4, 7; PFR File,
Tabs 1, 6. Rather, she asserts that “there was no reason to file an MSPB appeal
using 7/31/13 when all hopes were to resolve the issue at the 8/9/13 mediation.”
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PFR File, Tab 1 at 3 (emphasis in original). The record indicates that the
appellant’s failure to file a timely Board appeal was a result of her own lack of
due diligence in preserving her appeal rights before the Board.
¶8 As the administrative judge correctly found, the EEO “Redress Mediation
Conference” was unrelated to the agency’s July 31, 2013 letter denying her
restoration request. Rather, the August 9, 2013 mediation was scheduled in an
attempt to resolve an EEO complaint she had filed prior to her receipt of the
agency’s July 31, 2013 letter. IAF, Tab 4, Exhibit 4. While the appellant had
hoped to resolve all restoration issues in the August 9, 2013 EEO mediation,
including those that were raised in the agency’s July 13, 2013 denial letter, her
decision to negotiate directly with the agency rather than file a Board appeal does
not demonstrate good cause for an untimely filed appeal. See Staton v.
Department of Homeland Security, 103 M.S.P.R. 318, ¶ 12 (2006).
¶9 To the extent that the appellant may be asserting that the agency’s July 31,
2013 letter provided her an additional 30 days to file an appeal because she had
participated in mediation, there is no evidence that the agency and the appellant
mutually agreed in writing to attempt to resolve this matter through an alternative
resolution process prior to her filing her appeal with the Board. The fact that the
appellant agreed in writing to attempt to resolve her EEO complaint through
mediation is unrelated to her having entered into a written agreement to resolve
the July 31, 2013 denial of her request for restoration following her partial
recovery from a compensable injury. Thus, the appellant has shown no
circumstances beyond her control that prevented her from complying with the
time limit or that unavoidable casualty or misfortune prevented her from
complying with the filing time limit. After considering the appellant’s arguments
on review, along with her arguments and submissions below, we find that she has
failed to establish good cause for the untimely filing of her appeal. Accordingly,
we find that the administrative judge correctly dismissed the appeal as untimely
filed.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.