Terrell M. Fraser v. Department of Commerce

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERRELL M. FRASER, DOCKET NUMBER

Appellant, DC-0752-14-0425-I-1

v.

DEPARTMENT OF COMMERCE, DATE: February 9, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Brooke L. Beesley, Alameda, California, for the appellant.

David M. Brown, Esquire, Washington, D.C., 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 his removal appeal as untimely. Generally, we grant petitions such as

this one only when: the initial decision contains erroneous findings of material

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

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A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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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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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was an Air Conditioning Equipment Mechanic Helper at the

agency’s National Institute of Standards and Technology. Initial Appeal File

(IAF), Tab 4 at 16. On June 17, 2013, the agency issued a letter proposing his

removal due to medical inability to perform an essential function of his position.

Id. The letter was mailed to the appellant’s then-residence of record. Id. On

August 7, 2013, the appellant responded orally. Id. at 25. The agency issued a

letter of decision on September 27, 2013, upholding the appellant’s removal

effective that day. Id. at 26-29. The removal letter provided the appellant with

notice of his right to file an appeal with the Board within 30 days of his receipt of

the letter or the effective date of his removal, whichever was later. Id. at 29. The

letter of decision was mailed to the appellant’s address of record and was

received by someone other than the appellant on September 30, 2013. Id. at 33.

¶3 On February 6, 2014, the appellant filed this appeal of his removal. IAF,

Tab 1. The agency filed a motion to dismiss the appeal as untimely, to which the

appellant responded. IAF, Tab 4 at 4-7, Tab 5. The administrative judge issued

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an initial decision dismissing the appeal as untimely without holding the

requested hearing. IAF, Tab 1 at 2, Tab 6, Initial Decision (ID). The appellant

has submitted a timely petition for review. Petition for Review (PFR) File, Tab 1.

The agency has responded to the petition for review, and the appellant has replied

to the agency’s response. PFR File, Tabs 3-4.

The appeal is untimely.

¶4 The appellant argued below and on review that he did not receive the

agency’s letter of decision. IAF, Tab 1 at 3, Tab 5 at 8; PFR File, Tab 1 at 6, Tab

4 at 2. Nonetheless, the administrative judge found that the appeal was untimely.

ID at 2-3. We agree. 2

¶5 The appellant bears the burden of proving by preponderant evidence that he

timely filed his appeal, or that there was a good reason for the delay. 5 C.F.R.

§§ 1201.22(c), 1201.56(a)(2)(ii); see Walsh v. Social Security

Administration, 93 M.S.P.R. 617, ¶ 5 (2003) (applying this rule in an individual

right of action appeal). An appellant is entitled to a hearing on the issue of

timeliness only if he provides specific, nonfrivolous evidence raising a dispute as

to material facts affecting the timeliness issue. Persons v. U.S. Postal Service, 75

M.S.P.R. 428, 433 (1997). An appeal must be filed no later than 30 days after the

effective date of the action being appealed, or 30 days after the date of the

appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R. §

1201.22(b)(1). Here, the appellant’s removal was effective September 27, 2013.

IAF, Tab 4 at 29. However, the agency’s letter of decision was delivered to the

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Although we agree with the appellant that the administrative judge erred by not

provid ing notice of his burden to prove timeliness or good cause for untimeliness, we

find that the administrative judge corrected th is error by providing sufficient notice in

the in itial decision. PFR File, Tab 1 at 2-4; ID at 2-3; see Hamilton v. Merit Systems

Protection Board, 75 F.3d 639, 645-47 (Fed. Cir. 1996) (holding that, before dismissing

an appeal as untimely, an administrative judge must provide the appellant with notice of

the timeliness issue and an opportunity to respond); Easterling v. U.S. Postal Service,

110 M.S.P.R. 41, ¶ 11 (2008) (failure to provide proper jurisdictional notice can be

cured if sufficient information is contained in the agency’s pleadings or the initial

decision).

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appellant’s residence on September 30, 2013. Id. at 32-33. Thus, the appellant’s

deadline for filing the appeal was October 30, 2013, and his February 6, 2014

appeal was over 3 months late. IAF, Tab 1.

¶6 The appellant indicated below that he resided at the address of record with

his wife, despite the initiation of legal separation proceedings. IAF, Tab 5 at 6-7.

However, he alleged that “[o]n many occasions” he would not receive mail sent to

him at this address and that, “[a]t times, [his] wife or her friends would simply

throw [his] mail or packages, addressed to [him], in the garbage with the other

junk mail without [him] knowing.” Id. at 6. Further, he claimed that he advised

his wife never to sign for any mail addressed to him and that she and her friends

were not authorized to receive mail or delivery items on his behalf. Id. at 6-7.

He stated that he had his “important financial paperwork from work” sent to his

mother’s home. Id. at 7. Nevertheless, we find that the appellant constructively

received the agency’s decision letter.

¶7 Both the Board and its reviewing court have found constructive receipt

where documents are received by relatives at the address designated by the

appellant for the receipt of notice. Crearer v. Department of Justice, 84 M.S.P.R.

434, ¶ 5 (1999). Pursuant to Examples A and C in 5 C.F.R. § 1201.22(b)(3), an

appellant may be deemed to have received an agency decision when he failed to

pick up mail delivered to his post office box, or when it was received by his

roommate. In Horton v. Department of the Navy, the Board did not find

constructive receipt where: (1) the notice was delivered to a rooming house

where the appellant was temporarily staying; (2) the appellant “[had] no

relationship” with the person who signed the receipt for the notice; (3) the

appellant did not authorize anyone to accept mail deliveries on his behalf; and

(4) the appellant did not provide the rooming house address to the agency as a

mailing address. 105 M.S.P.R. 332, ¶ 10 (2007).

¶8 In the instant case, on September 23, 2012, the appellant changed his

address, via the National Finance Center Employee Personal Page website, to his

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mother’s home. IAF, Tab 4 at 5, 11. Moreover, the letter of decision was signed

for by an unnamed woman, and thus we do not know for certain if a relative

signed for it. IAF, Tab 4 at 33. However, the address of record was the

appellant’s residence and not a place he was staying temporarily. When the

agency mailed the June 17, 2013 letter of proposed removal to his then-known

address of record, he timely responded, stating that he received the proposal on

June 20, 2013. Id. at 16, 22. The appellant did not indicate in his response that

he did not want to receive correspondence at his residence. See id. at 22-23.

Further, he provided his residential address as a mailing address in an equal

employment opportunity complaint dated March 25, 2013. IAF, Tab 4 at 15.

Thus, the evidence shows that after changing his official mailing address, he

continued to use his residential address for official correspondence. Under these

circumstances, we find that the appellant constructively received the decision

letter. Therefore, his appeal was filed over 3 months late.

The appellant has not proved good cause for the untimeliness of his appeal.

¶9 On review, the appellant asserts without specifics that he nonfrivolously

alleged good cause for the untimeliness of his appeal. PFR File, Tab 1 at 2. The

appellant alleged below that when he received the letter of proposed removal, he

was under doctor’s care for chronic pain, anxiety, and depression, and was in a

“state of daily worry and fear causing nausea, diarrhea, couldn’t concentrate and

trouble sleeping.” IAF, Tab 5 at 6. He claimed further that his medical

conditions “were also significantly aggravated by the fact that [he] was on a

nonpay status since approximately December 28, 2012.” Id. Nevertheless, the

administrative judge found that the appellant failed to allege that these medical

conditions caused him to be unable to timely file his appeal. ID at 4. We agree.

¶10 The Board will find good cause for waiver of its filing time limits where a

party demonstrates that a medical condition affected his ability to file on time.

Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). As noted by the

administrative judge, this requires nonfrivolously alleging, in pertinent part, that

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the illness prevented him from timely filing his appeal or a request for an

extension of time. Id.; ID at 4.

¶11 The appellant did not argue below or on review that his untimeliness should

be excused on the grounds of medical incapacity. See IAF, Tabs 1, 5; PFR File,

Tabs 1, 4. In finding that the appellant failed to link his medical conditions to an

inability to timely file his appeal, the administrative judge did not refer to Lacy

but cited to Blaske v. Department of the Navy, 76 M.S.P.R. 164, 169 (1997),

aff’d, 168 F.3d 1322 (Fed. Cir. 1998) (Table). Although Blaske predates Lacy by

a year, it also identifies the requirement that the appellant explain how his

medical condition prevented him from filing on time, and the Board’s decision in

Blaske was affirmed by the U.S. Court of Appeals for the Federal Circuit. See

id.; ID at 4. Despite receiving this notice of his burden, the appellant has not

provided any evidence on review connecting his untimeliness with his medical

condition. Under these circumstances, we find that the appellant has not made a

nonfrivolous allegation of good cause for the delay.

¶12 On petition for review, the appellant argues that it was erroneous for the

administrative judge “to deny and/or reject any consideration for appellant[’s]

timely served jurisdictional discovery.” PFR File, Tab 1 at 3. The appellant

stated below that he intended to serve the agency a discovery request on the issue

of timeliness. IAF, Tab 5 at 4. We find that the administrative judge committed

harmless error by closing the record before completion of discovery.

¶13 An appellant is entitled to conduct discovery that might assist him to meet

his burden to establish timeliness. Cf. Rison v. Department of

Defense, 73 M.S.P.R. 390, 394-95 (1997) (finding that an administrative judge

erred in dismissing an appeal without affording the appellant an opportunity to

pursue discovery related to the issue of jurisdiction). The rules governing

discovery in Board proceedings are set out in the Board’s regulations at 5 C.F.R.

§§ 1201.71-.75. These regulations provide that initial discovery requests must be

served within 30 days of the administrative judge ordering the agency to produce

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its file and response. 5 C.F.R. § 1201.73(d)(1). Responses are due within 20

days of service. 5 C.F.R. § 1201.73(d)(2).

¶14 Consistent with these regulations, the administrative judge set the time

frame for discovery indicating that a party’s initial discovery request must be

served within 30 days of February 18, 2014, or by March 20, 2014. IAF, Tab 2 at

3. The appellant indicated on March 17, 2014, that he intended to timely serve

such discovery. IAF, Tab 5 at 4. He attaches, with his petition for review,

discovery requests dated March 18, 2014. PFR File, Tab 1 at 3, 5-9. Assuming

these requests were timely served, as represented, the initial decision was issued

before the expiration of the agency’s 20-day deadline to respond. IAF, Tab 2 at

3; ID.

¶15 However, the appellant’s initial discovery request does not seek information

that would establish his appeal as timely because it would not rebut the fact that

the appeal was filed over 3 months after constructive receipt of the agency’s

decision letter. See PFR File, Tab 1 at 9 (requesting that the agency admit that it

addressed the decision letter to the appellant’s residential address of record

without authorization and that there was no delivery receipt). Further, any

evidence relating to the appellant’s medical condition that would excuse the

untimely filing would presumably be in his, and not the agency’s, possession. Cf.

Davis v. Department of Defense, 103 M.S.P.R. 516, ¶ 13 (2006) (finding in an

individual right of action appeal that the appellant was not prejudiced by a lack of

discovery because his discovery requests did not seek pertinent information and

the determination of whether he exhausted his remedies were based on evidence

in his possession). Therefore, we find that it was harmless error for the

administrative judge to make the determination that the appeal was untimely

before the close of discovery. See Karapinka v. Department of

Energy, 6 M.S.P.R. 124, 127 (1981) (an administrative judge’s procedural error is

of no legal consequence unless it is shown to have adversely affected a party’s

substantive rights).

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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.