The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VANESSA L. DAVIS, DOCKET NUMBER
Appellant, SF-0353-15-0068-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 29, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
JC Andrews, Jr., Gardena, California, for the appellant.
Catherine V. Meek, Long Beach, 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 as untimely filed her appeal of an alleged denial of restoration.
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A nonprecedential order is one that the Board has determined does not add
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 Parties may cite nonprecedential orders,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).
2
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 concerning the administrative judge’s application of the
presumption of receipt rule, we AFFIRM the initial decision.
¶2 On June 21, 2010, the agency notified the appellant that she should not
report for duty because there was no work available within her medical
restrictions. 2 Initial Appeal File (IAF), Tab 6 at 35. The appellant filed a formal
discrimination complaint alleging that the agency’s action was retaliation for her
prior equal employment opportunity activity, and the agency issued a Final
Agency Decision (FAD) finding no discrimination and stating the appellant’s
right to file an appeal with the Board within 30 days after receipt of the FAD. Id.
at 14-30. The appellant’s representative filed a Board appeal on October 27,
2014, and attached a copy of the February 1, 2011 FAD. IAF, Tab 1.
¶3 The administrative judge notified the appellant that her appeal appeared to
be 1,328 days late and ordered her to submit evidence and argument to meet her
burden of proof on the timeliness issue. IAF, Tab 2 at 5-6. After the parties
responded, the administrative judge dismissed the appeal as untimely filed
without good cause shown for the delay. IAF, Tab 11, Initial Decision (ID) at 2,
2
The appellant, a nonpreference-eligible carrier technician, has filed several restoration
appeals with the Board, the details of which are set forth in the background section of
the initial decision. Initial Appeal File (IAF), Tab 11, Initial Decision (ID) at 2-3.
3
5-6. In reaching her decision, the administrative judge found that the appeal
should have been filed by March 8, 2011, applying the presumption that the
appellant’s representative received the FAD on February 6, 2011, which was
within 5 days after the February 1, 2011 mailing date stated by the agency. 3 ID
at 3, 5. The administrative judge also found, inter alia, that the appellant made no
effort to show good cause for her untimely appeal and she repeatedly requested
dismissal. ID at 6.
¶4 The appellant filed a petition for review of the initial decision arguing, as to
the timeliness issue, that the administrative judge “failed to acknowledge the date
the Agency recently gave the Appellant her appeal rights,” and that her appeal
was timely filed thereafter. Petition for Review (PFR) File, Tab 1 at 7. She also
disputes the administrative judge’s presumption that her representative received
the FAD, reiterating that he “does not recall ever receiving it,” and she argues the
agency failed to prove his receipt. Id. The agency opposed her petition for
review reasserting the argument it made on appeal that the appellant’s
representative received his copy of the FAD in 2011, and he should have filed her
Board appeal by March 8, 2011. PFR File, Tab 3 at 5-6; IAF, Tab 8 at 5-6. The
agency also reasserts that, “[a]t the very least,” the appellant knew that she
needed to file her Board appeal on July 5, 2014, when she attempted to reactivate
her case before the Equal Employment Opportunity Commission (EEOC), but that
she failed to “file diligently after learning she could do so.” PFR File, Tab 3
at 6-7; IAF, Tab 8 at 6-7.
¶5 If an appellant fails to timely submit her appeal, it will be dismissed as
untimely filed absent a showing of good cause for the filing delay. 5 C.F.R.
§ 1201.22(c). To establish good cause for the untimely filing of an appeal, a
3
The administrative judge determined that the presumption of receipt should apply
based on the protestations of the appellant’s representative that he did not recall
receiving the FAD, and the lack of any information about when either he or the
appellant discovered the FAD was issued. ID at 5.
4
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 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). The appellant bears
the burden of proof with regard to timeliness, which she must establish by
preponderant evidence. 5 C.F.R. § 1201.56(a)(2)(ii).
¶6 An employee who timely files a formal complaint of discrimination with her
employing agency regarding a matter that is within the Board’s jurisdiction may
file an appeal with the Board. See 5 C.F.R. § 1201.154(b)(1); 29 C.F.R.
§ 1614.302(d)(1)(ii). For such an appeal to be considered timely, it must be filed
within 30 days after the employee receives the FAD. See 5 C.F.R.
§ 1201.154(b)(1)-(2). Under the Board’s regulations, the appellant is deemed to
have received the agency’s decision if it was received by her designated
representative. 5 C.F.R. § 1201.22(b)(3).
¶7 In this case, it is undisputed that the agency failed to serve the appellant
properly. In determining whether the appellant filed her appeal late, the
administrative judge relied entirely on the presumption that the appellant’s
representative received the FAD 5 days after the agency purportedly mailed it on
February 1, 2011. 4 ID at 5. However, we find no evidence in the record proving
4
Although the issues of timeliness and jurisdiction in restoration appeals may be
inextricably intertwined when the resolution of the timeliness issue depends on whether
the appellant was subject to an appealable action, this is not the case here. See Delalat
v. Department of the Air Force, 103 M.S.P.R. 448, ¶ 9 (2006).
5
that the agency actually mailed the FAD to the appellant’s representative on
February 1, 2011. This lack of evidence is significant considering that the agency
in this case is the United States Postal Service, the FAD was not accompanied by
certification that a named individual mailed the document to the appellant’s
representative on February 1, 2011, and he claims to have no recollection of
receiving the FAD. See Butler v. Department of Veterans Affairs, 119 M.S.P.R.
112, ¶ 10 (2013). Moreover, in the acknowledgment order, the administrative
judge should have ordered both parties to provide evidence and argument
concerning the actual receipt date of the FAD or issued a show cause order
limited to timeliness and obtained additional evidence from both parties to
resolve the ambiguity regarding the actual receipt date. See Hamilton v. Merit
Systems Protection Board, 75 F.3d 639, 646-47 (Fed. Cir. 1996). The Board will
not simply assume that the agency mailed the FAD to the appellant and her
representative on February 1, 2011, and that he received it 5 days later, because
there is no specific evidence that either action actually occurred. See
Butler, 119 M.S.P.R. 112, ¶ 10. We nonetheless agree with the administrative
judge’s decision to dismiss the appeal as untimely filed, because we find that the
appellant was required to file her appeal diligently once she learned that she
could file, and she failed to do so. See McCurn v. Department of
Defense, 119 M.S.P.R. 226, ¶ 8 (2013).
¶8 As noted by the administrative judge, the appellant is an experienced
litigant who is clearly aware of her Board appeal rights, and her designated
representative acted on her behalf in several appeals before the Board. ID at 2-3.
Although the appellant certified on her appeal form that she received her copy of
the FAD on October 27, 2014, the record includes a July 5, 2014 letter to an
EEOC administrative judge from the appellant’s representative indicating that the
agency gave her appeal rights in four cases, including the case underlying this
appeal, and stating that she “had no other recourse but to appeal to the Board.” IAF,
Tab 8 at 14. Based on this evidence, we find that the appellant and her
6
representative knew that she could appeal to the Board on July 5, 2014, but she
failed to act diligently and waited more than 3 months before filing her appeal
with the Board on October 27, 2014. 5 IAF, Tab 1, Tab 8 at 10, 14. The appellant
thus has failed to demonstrate good cause for this delay. See Alonzo, 4 M.S.P.R.
at 184. We therefore find that the administrative judge properly dismissed this
appeal as untimely filed without good cause for the delay. 6
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. 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
5
The record also includes a September 14, 2014 order from an EEOC administrative
judge notifying the appellant and her representative of the February 1, 2011 FAD and of
her right to file an appeal with the Board. IAF, Tab 8 at 10; see IAF, Tab 5 at 2.
6
Given our disposition, we need not address whether the administrative judge’s
alternative findings on collateral estoppel are correct.
7
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 appeal to
the 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 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.