The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD JAMES HAYNES, DOCKET NUMBER
Appellant, NY-0752-15-0321-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward James Haynes, Fairlawn, New Jersey, pro se.
Anne M. Gallaudet, Esquire, New York, New York, 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 for lack of jurisdiction. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown for the delay. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 Effective August 12, 2015, the agency removed the appellant from his Mail
Handler position. Initial Appeal File (IAF), Tab 7 at 8. 2 The appellant appealed
his removal to the Board and requested a hearing. IAF, Tab 1. The agency filed
a motion to dismiss the appeal for lack of jurisdiction. IAF, Tab 7 at 4-6. In an
order to show cause, the administrative judge informed the appellant that the
Board may lack jurisdiction over his appeal. IAF, Tab 8 at 1. The administrative
judge apprised the appellant of his burden of proving the following for the Board
to exercise jurisdiction over his appeal as a Postal Service employee: (1) that he
is a preference-eligible employee, a management or supervisory employee, or an
employee engaged in personnel work in other than a purely nonconfidential
clerical capacity; and (2) that he has completed 1 year of current, continuous
service in the same or similar position. Id.; see 39 U.S.C. § 1005(a)(4)(A);
5 U.S.C. § 7511(a)(1)(B)(ii); Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12
(1996). The administrative judge ordered the appellant to file evidence and
argument on the jurisdictional issue, but the appellant did not respond. IAF, Tab
8 at 1.
¶3 Without holding the requested hearing, the administrative judge dismissed
the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 4. The
administrative judge found that the appellant failed to raise a nonfrivolous
allegation that he is an employee entitled to appeal a removal action to the Board.
ID at 3-4.
¶4 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded, PFR File, Tab 3. The appellant
also has filed a motion to waive the time limit. PFR File, Tab 4.
¶5 Generally, a petition for review must be filed within 35 days after the
issuance of the initial decision, or, if the petitioner shows that he received the
initial decision more than 5 days after the date of the issuance, within 30 days
2
The administrative judge made a typographical error in stating that the effective date
of the appellant’s removal was “August 21, 2015.” IAF, Tab 9, Initial Decision at 1.
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after the date he received the initial decision. 5 C.F.R. § 1201.114(e). In the case
of e-filers, like the appellant, documents are deemed received on the date of
electronic submission. IAF, Tab 1 at 2; see 5 C.F.R. § 1201.14(m)(2). Here, the
administrative judge issued the initial decision on October 9, 2015, ID at 1, and
the certificate of service reflects that the initial decision was sent to the appellant
through email on the same day, IAF, Tab 10. In the initial decision, the
administrative judge informed the parties that the initial decision would become
the Board’s final decision if neither party filed a petition for review by
November 13, 2015. ID at 5; see 5 C.F.R. § 1201.113. The appellant filed a
petition for review on December 9, 2015, nearly 1 month past the initial
decision’s finality date. 3 PFR File, Tab 1. In an acknowledgment letter, the
Office of the Clerk of the Board informed the appellant that his petition for
review was untimely filed and that he could file a motion with the Board to
accept his filing as timely or to waive the time limit for good cause. PFR File,
Tab 2 at 1-2.
¶6 In his motion to waive the time limit, the appellant argues that the Board
should find good cause for his untimely filing because he has received new
information regarding how to prove his preference-eligible status. PFR File,
Tab 4 at 1. He alleges that a U.S. Senator’s assistant told him that he meets one
of the criteria for being a preference eligible by “sharing a special familiar [sic]
relationship with a preference eligible.” Id.; see 5 U.S.C. § 2108(3). He further
claims that his wife is a preference eligible and submits copies of his wife’s
DD Form 214, Certificate of Release or Discharge from Active Duty, and a
marriage certificate. PFR File, Tab 4 at 1, 3-4.
3
According to the Board’s regulations, the date of filing by mail where there is no
legible postmark date is presumed to be 5 days (excluding days on which the Board is
closed for business) before its receipt. 5 C.F.R. § 1201.4(l). Because the appellant’s
petition for review has no postmark and it was received by the Board by mail
on December 16, 2015, we find the date of filing is December 9, 2015.
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¶7 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(f)-(g).
To establish good cause, the appellant must show that he 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 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 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).
¶8 We find that the appellant has not demonstrated good cause for the untimely
filing of his petition for review. His nearly 1-month delay in filing is not
insignificant. See, e.g., Floyd v. Office of Personnel Management, 95 M.S.P.R.
260, ¶ 6 (2003) (finding a 1-month delay not minimal); Crozier v. Department of
Transportation, 93 M.S.P.R. 438, 441 (2003) (finding a 13-day delay not
minimal). Although the appellant’s pro se status is a factor weighing in his favor,
it is insufficient to excuse his untimeliness. See Allen v. Office of Personnel
Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se
appellant’s 14-day, unexplained delay in filing a petition for review); see also
Wallace v. Department of Veterans Affairs, 81 M.S.P.R. 88, ¶ 5 (finding that an
appellant’s inexperience with legal matters and unfamiliarity with Board
procedures do not warrant waiver of the filing deadline), aff’d, 217 F.3d 856
(Fed. Cir. 1999) (Table). His argument that he has received new information
regarding how to prove his preference-eligible status is not a reasonable excuse
and does not establish that he exercised due diligence or ordinary prudence in this
case. PFR File, Tab 4 at 1. The appellant was informed below of the criteria for
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showing preference-eligible status in the agency’s motion to dismiss, which was
referenced by the administrative judge in the show cause order. IAF, Tab 7 at 4-
5, Tab 8 at 1; see 5 U.S.C. § 2108(3). Included in the agency’s motion was the
possibility of claiming preference eligibility based on a familial relationship.
IAF, Tab 7 at 5. Further, the appellant has not demonstrated that the documents
submitted on review were not readily available before the record closed below.
PFR File, Tab 1 at 4, Tab 4 at 3-4; see De Le Gal v. Department of Justice,
79 M.S.P.R. 396, 399 (1998) (finding that the discovery of new evidence may
establish good cause for the untimely filing of a petition for review if the
appellant shows that it was not readily available before the record closed below
and that it is of sufficient weight to warrant an outcome different from that of the
initial decision), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table).
¶9 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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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 an appeal to
the U.S. 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.