The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PHILIP WESTERMAN, DOCKET NUMBER
Appellant, DA-0752-15-0141-I-1
v.
DEPARTMENT OF HOMELAND DATE: May 11, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Philip Westerman, McAllen, Texas, pro se.
Eric J. Drootman, Edinburg, Texas, 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 his removal appeal as untimely filed without a showing of good cause
for the filing delay. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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. Except as
expressly MODIFIED by this Final Order, we AFFIRM the initial decision.
¶2 By notice dated October 23, 2014, the agency informed the appellant that he
would be removed from his position as a GS-12 Border Patrol Agent effective
October 31, 2014. Initial Appeal File (IAF), Tab 7 at 11 (Standard Form 50),
13-16 (decision letter). The notice also advised that any appeal of the removal
must be filed with the Board within 30 calendar days after the effective date of
the action, or 30 days after receipt of the notice, whichever was later; provided
the mailing address and facsimile number of the regional office; and attached a
copy of the MSPB appeal form. Id. at 14-15. The appellant appealed his removal
to the Board on December 4, 2014. IAF, Tab 1. The agency moved to dismiss
the appeal as untimely filed, asserting that the decision letter was delivered to the
appellant’s address and signed for by his wife on October 31, 2014, more than
30 days before the appellant initiated his appeal. IAF, Tab 7 at 4-10. In support
of its motion to dismiss, the agency submitted a signed certified mail receipt and
a U.S. Postal Service (USPS) tracking report showing the date of delivery as
October 31, 2014. Id. at 17, 19.
¶3 On December 22, 2014, the administrative judge issued an order on
timeliness informing the appellant that his appeal appeared to be untimely and
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affording him an opportunity to respond. IAF, Tab 4. Having received no
response to the timeliness order, the administrative judge issued a second order
on January 21, 2015, advising the appellant that his appeal would be dismissed as
untimely filed unless he presented evidence and argument showing that his appeal
was timely filed or that he had good cause for the untimely filing. IAF, Tab 9.
The appellant responded to the second order, stating that his “wife had signed for
delivery of a letter around Halloween 2014,” but that he did not read the decision
until on or about November 7, 2014, which he appears to consider his date of
receipt for timeliness purposes. See IAF, Tabs 10-11. He also contended that the
decision was delivered on November 3, 2014, based on a “2nd notice Nov 03
2014” stamp on the front of the envelope. See IAF, Tab 10 at 4-5. The appellant
further explained that he could not have filed the appeal any sooner than he did
because he was waiting on the union to assist him. See id. at 5.
¶4 The administrative judge found that the 30-day filing period began on
October 31, 2014, when the USPS tracking report indicated that the agency’s
decision letter was delivered to the appellant’s designated address and, therefore,
that the appellant’s December 4, 2014 appeal was untimely filed by 3 days. IAF,
Tab 14, Initial Decision (ID) at 5. The administrative judge further found that the
appellant failed to establish good cause for the untimely filing because the
unavailability of a union representative does not constitute good cause. ID at 5-6.
¶5 The appellant has filed a petition for review in which, inter alia, he
reiterates his contention that the decision letter was delivered on November 3,
2014. See Petition for Review (PFR) File, Tab 1 at 4-5. The agency has
responded in opposition; and the appellant has replied to the agency’s
opposition. 2 PFR File, Tabs 1-3.
2
In his reply to the agency’s opposition, the appellant asserts that the agency’s
discussion of the charges underlying h is removal is irrelevant to the timeliness issue and
has prejudiced the Board. See PFR File, Tab 3 at 3. The appellant is correct that the
underlying charges are irrelevant to disposition of the instant petition for review.
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¶6 Generally, 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’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). As an initial matter, we find that the administrative judge erred
in determining that the decision letter was delivered on October 31, 2014, and not
November 3, 2014. See ID at 5. The parties do not dispute that the agency
mailed the decision letter to the appellant via USPS certified mail, tracking
number 7008 2810 0000 6666 2918. See IAF, Tab 7 at 17, 19-20, Tab 10 at 4.
The USPS tracking report indicates that USPS delivered the certified mail
carrying the decision letter on October 31, 2014, at 2:56 p.m. IAF, Tab 7 at 19.
It also shows that USPS first attempted to deliver the decision letter on
October 28, 2014, but that there was no authorized recipient available. Id.
¶7 As the appellant notes, however, the envelope bears a stamp indicating “2 nd
notice Nov 3 2014.” IAF, Tab 10 at 4. In making her determination, the
administrative judge did not address the appellant’s contention that this stamp
establishes that the decision letter was delivered on November 3, 2014. This was
error. See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589
(1980) (An initial decision must identify all material issues of fact and law,
summarize the evidence, and include the administrative judge’s conclusions of
law and her legal reasoning, as well as the authorities on which that reasoning
rests).
¶8 We find that the only plausible explanation for the stamp is that the
envelope was in the possession of the USPS until it was delivered on
November 3, and that the tracking information to the contrary was the result of
administrative error. The appellant’s statement in his response to the show cause
order that his wife had “signed for delivery of a letter around Halloween 2014” is
However, we fail to see how the agency’s discussion of the factual background of this
case is prejudicial to the appellant.
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not dispositive. First, it does not specify an exact date. Second, it is unclear
from the appellant’s statement that his wife “signed for delivery of a letter”
whether she signed upon actual receipt of the letter or whether she signed to
authorize its re-delivery at a later date.
¶9 Considering the evidence as a whole, we conclude that the decision letter
was delivered to the appellant’s residence on November 3, 2014, and not
October 1, 2014. Thus, the deadline for filing a Board appeal was December 3,
2014. See 5 C.F.R. § 1201.22(b). Because the appellant’s Board appeal was not
filed until December 4, 2014, however, it was still untimely filed by 1 day.
¶10 To establish good cause for the untimely filing of an appeal, a party must
show that he exercised due diligence or ordinary prudence under the particular
circumstances of the case. Marcantel v. Department of Energy, 121 M.S.P.R.
330, ¶ 10 (2014). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
his 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 appeal. Id. Here, the appellant contends that it was “virtually
impossible” for him to file his appeal any earlier because he believed the union
would seek arbitration on his behalf and was waiting on their assistance. See PFR
File, Tab 1 at 4-5.
¶11 As the administrative judge correctly pointed out, however, the
unavailability of a union representative does not establish good cause for an
untimely filing. ID at 5-6; see Rosati v. U.S. Postal Service, 91 M.S.P.R. 122,
¶¶ 6, 8, aff’d, 53 F. App’x 95 (Fed. Cir. 2002). Moreover, the Board has declined
to excuse even delays that are not particularly lengthy absent other factors
showing good cause. See, e.g., Gaetos v. Department of Veterans
Affairs, 121 M.S.P.R. 201, ¶ 6 (2014); Melendez v. Department of Homeland
6
Security, 112 M.S.P.R. 51, ¶ 16 (2009). Thus, we discern no basis to disturb the
administrative judge’s determination that the appellant failed to show good cause
for his untimely filing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
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Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.