The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EMMIE D. REED, DOCKET NUMBER
Appellant, SF-0752-14-0587-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: April 16, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Emmie D. Reed, Walnut, California, pro se.
Mikel C. Deimler, Esquire, San Francisco, California, for the agency.
BEFORE
Susan Tsui Grundmann, 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 without good cause shown for the delay.
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 regulation or the erroneous application of
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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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 Prior to her removal, the appellant was employed with the agency as an
appeals officer. Initial Appeal File (IAF), Tab 7 at 40. The agency proposed her
removal on February 12, 2014, id. at 76-82, and removed her effective April 9,
2014, id. at 48-51. The removal decision informed the appellant of her right to
appeal to the Board no later than 30 calendar days after the effective date of the
action being appealed or 30 days after receipt of the agency’s decision, whichever
was later. Id. at 49-51. The appellant filed the instant Board appeal on May 27,
2014, asserting, inter alia, that her appeal was timely because she only received
notice of her removal when she received a Standard Form 50 from the agency on
May 10, 2014. IAF, Tab 1, Tab 4 at 4. The administrative judge issued an order
stating that the appeal appeared to be untimely, and notifying the appellant of her
burden of proving that either her appeal was timely or that, although it was
untimely filed, there was good cause for the delay in filin g; the administrative
judge’s order included the standard for establishing good cause for untimely
filing due to illness. IAF, Tab 2. The agency responded, asserting, inter alia, that
the appellant attempted to avoid service or failed to provide the agency with
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updated contact information and that it properly sent the decision letter and other
correspondence to the appellant via the United States Postal Service (USPS) and
United Parcel Service (UPS). IAF, Tab 7 at 5.
¶3 In the initial decision, the administrative judge found that the appeal was
untimely filed because the appellant had constructive notice of the removal
decision when it was delivered to her house; he further found that the appellant
had not shown good cause for the delay. IAF, Tab 24, Initial Decision (ID)
at 15-18. The administrative judge cited the declaration of an agency employee
stating that the agency sent the decision letter on March 27, 2014, by UPS to the
appellant’s home address and by USPS to her post office box and home address.
ID at 9 (citing IAF, Tab 20); see IAF, Tab 7 at 52-57 (copies of envelopes used to
mail the decision letter via UPS and USPS and UPS tracking detail stating that
the letter had been delivered to the appellant’s porch on March 28, 2014). The
administrative judge also cited the employee’s statement that neither of the
decision letters sent by USPS nor the five boxes of personal belongings that he
sent to the appellant via UPS was returned to the agency. ID at 9 (citing IAF,
Tab 9 at 51-52, Tab 20 at 5-6). The administrative judge found that the agency’s
letters were actually delivered but that the appellant was attempting to avoid
receipt of letters from the agency related to disciplinary matters. ID at 13-15. In
support of this finding, the administrative judge noted that, although the appellant
claimed not to have received letters related to discipline, such as the February 12,
2014 proposed removal letter, IAF, Tab 1, an agency employee stated in a
declaration that the agency received a facsimile from the appellant on
February 13, 2014, responding to a notice concerning her health benefits that the
agency mailed to her post office box on January 14, 2014, ID at 9 (citing IAF,
Tab 10 (letter from the agency concerning health benefits election and response
from the appellant sent by facsimile on February 12, 2014)). He also noted that a
newly packaged/repackaged decision letter was shipped to the agency by someone
through a San Francisco UPS receptacle, receiver, or office on June 10, 2014, but
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that nothing indicated that it was not originally delivered. ID at 14; see IAF,
Tab 7 at 29-35 (decision letter, UPS envelope, and UPS tracking information for
returned decision letter). He therefore found that the decision letter was
delivered by UPS to the appellant’s home address on March 28, 2014, that she
intentionally avoided receiving the decision, and that she thus had constructive
notice of the decision letter on March 28, 2014. ID at 15.
¶4 The appellant has petitioned for review, asserting that she diligently filed
her appeal after receiving notice of her removal, that the instant case should have
been treated as a mixed case with respect to the applicable deadlines for filing her
appeal, and that the administrative judge did not properly consider her illness in
assessing the timeliness of her appeal. Petition for Review (PFR) File, Tab 3
at 6. The agency has filed a response. PFR File, Tab 7.
¶5 An appellant bears the burden of proving through preponderant evidence
that her appeal has been timely filed. 2 Kirkland v. Department of Homeland
Security, 119 M.S.P.R. 74, ¶ 5 (2013); 5 C.F.R. § 1201.56(a)(2)(ii). Generally,
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)(1). The Board will dismiss
an appeal that is untimely filed unless a good reason for the delay is
shown. 5 C.F.R. § 1201.22(c).
¶6 Here, the administrative judge found, and we agree, that the decision letter
was delivered by UPS to the appellant’s home address on March 28, 2014. ID
at 15. Under 5 C.F.R. § 1201.22(b)(3), “correspondence which is properly
addressed and sent to the appellant’s address via postal or commercial delivery is
presumed to have been duly delivered to the addressee.” The regulation further
states, “While such a presumption may be overcome under the circumstances of a
2
A preponderance of the evidence is that 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. § 1201.56(c)(2).
5
particular case, an appellant may not avoid service of a properly addressed and
mailed decision by intentional or negligent conduct which frustrates actual
service.” Id. The appellant has not presented evidence or argument, other than
her bare assertions, that she did not receive the decision letter on the date that it
was delivered to her home address. The appellant thus has not established by
preponderant evidence that she did not receive the decision letter when it was
delivered via UPS on March 28, 2014. Cf. Marcantel v. Department of
Energy, 121 M.S.P.R. 330, ¶ 9 (2014) (regardless of whether the appellant’s
father was authorized to receive letters on his behalf, the appellant constructively
received the decision letter on the date that it was delivered and signed for at his
father’s address (his address of record)).
¶7 Additionally, the appellant has not established that she did not receive the
decision letter delivered to her post office box. The Board’s regulations provide
that an appellant may be deemed to have received an agency decision when she
failed to pick up mail delivered to her post office box. 5 C.F.R. § 1201.22(b)(3),
Example A. The appellant has failed to rebut the presumption that she received
the decision letter that was properly addressed and sent to her post office box via
postal delivery. See 5 C.F.R. § 1201.22(b)(3). Therefore, even if, as the
appellant alleges, she did not receive the decision letter that was delivered to her
house via USPS or UPS, we find that she is deemed to have received the decision
letter that was delivered to her post office box.
¶8 Because the appellant’s removal was not effective until April 9, 2014, IAF,
Tab 7 at 48-51, after the appellant was deemed to have received the decision
letter, we agree with the administrative judge that the filing deadline was 30 days
later, on May 9, 2014, see 5 C.F.R. § 1201.22(b)(1). The appellant did not file
her appeal until May 27, 2014, or 18 days after the deadline. IAF, Tab 1. We
therefore find that the appellant has not established that her appeal was timely
filed.
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¶9 On petition for review, the appellant asserts that the timeframes for filing a
mixed case should apply to her appeal. PFR File, Tab 3 at 6. A mixed case
appeal is an appeal filed with the Board alleging that an appealable agency action
was effected, in whole or in part, because of discrimination on the basis of race,
color, religion, sex, national origin, disability, age, or genetic
information. 29 C.F.R. § 1614.302(a)(2). The timeframe for filing mixed case
appeals is governed by 5 C.F.R. § 1201.154. Under 5 C.F.R. § 1201.154(a), the
appellant may either file a timely complaint of discrimination with the agency or
file an appeal with the Board no later than 30 days after the effective date, if any,
of the action being appealed or 30 days after the date of the appellant’s receipt of
the agency's decision on the appealable action, whichever is later. If the
appellant had filed a direct Board appeal under 5 C.F.R. § 1201.154(a), just as
under 5 C.F.R. § 1201.22(b), she would have had to file her appeal within 30 days
of the effective date of her removal. Therefore, as previously discussed, her
appeal would have been filed 18 days after the deadline.
¶10 Under 5 C.F.R. § 1201.54(b), if the appellant has filed a formal complaint
of discrimination with the agency prior to appealing to the Board, the right to
appeal to the Board does not vest until the agency issues a final decision on the
discrimination complaint or 120 days elapse from the date the complaint is filed
with the agency. Although the appellant states that her appeal should be
governed by the timeframes for mixed appeals, she has not presented evidence
that she filed a formal complaint of discrimination concerning her removal prior
to filing her appeal. 3 Thus, the appellant’s arguments concerning mixed-case
3
In its response, the agency submitted a July 2014 final agency decision that addressed
the appellant’s August 2013 and December 2013 formal complaints concernin g other
agency actions (not the appellant’s removal). PFR File, Tab 7 at 22-41. The agency
also submitted a June 2014 equal employment opportunity counseling report that
reflected that the appellant wanted to initiate a complaint concerning her removal, but
there is no evidence of a formal complaint. Id. at 106-07.
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procedures are unsubstantiated and, in any event, do not warrant a different
outcome.
¶11 Next, we find that the administrative judge properly determined that the
appellant did not show good cause for the untimely filing. 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 if 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 evidence of unavoidable casualty or misfortune which similarly shows a
causal relationship to her inability to timely file her petition. 4 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). Where an appellant asserts that an untimely filing was the
result of an illness, she must: (1) identify the time period during which she
suffered from the illness; (2) submit medical evidence showing that she suffered
from the alleged illness during that time period; and (3) explain how the illness
prevented her from timely filing her appeal or a request for an extension of time.
Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).
¶12 The administrative judge found that the appellant failed to show good cause
for the untimely filing of her appeal. ID at 17-18. On review, the appellant
presents general arguments that her illness prevented her from focusing on
routine habits such as checking her post office box or her home mail. PFR File,
Tab 3 at 7-8. Under 5 C.F.R. § 1201.115(d), the Board will not consider evidence
4
Although the appellant is proceeding pro se on petition for review, PFR File, Tab 6,
she was represented below, see IAF, Tab 1, and we therefore do not consider her pro se
for purposes of determining whether she has shown good cause for the untimely filing
of her initial appeal.
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submitted for the first time with the petition for review absent a showing that it
was unavailable before the record was closed below despite the party’s due
diligence. Although the appellant’s arguments concerning her illness may be
new, we do not consider them because the information upon which the arguments
are based is not new. See Clemens v. Department of the Army, 120 M.S.P.R. 616,
¶ 19 n.10 (2014). Furthermore, even if we did consider these arguments, we find
that they do not establish that the appellant’s illness affected her ability to timely
file an appeal or to request an extension of time to file her appeal. See Tacujan v.
U.S. Postal Service, 109 M.S.P.R. 553, ¶ 8 (2008) (finding that the appellant did
not establish that his mental illness affected his ability to file a petition for appeal
or request an extension of time to file an appeal where he submitted no medical
documentation to support his assertion that his condition prevented him from
timely filing his appeal).
¶13 We further find that the delay in filing of 18 days is not minimal. See
Harris v. Department of Defense, 101 M.S.P.R. 123, ¶ 10 (2006) (declining to
excuse an 8-day delay in filing an appeal where there was no good cause shown
for the delay). Considering the record as a whole, we agree with the
administrative judge that the appellant did not establish good cause for her
untimely filing. Accordingly, we find that the administrative judge properly
dismissed the appeal as untimely filed without good cause shown for the delay.
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
9
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
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.