The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2017 MSPB 5
Docket No. AT-0752-16-0347-I-1
Lawrence Little, Jr.,
Appellant,
v.
United States Postal Service,
Agency.
January 6, 2017
A. Brian Henson, Esquire, Decatur, Georgia, for the appellant.
Cynthia R. Allen, Esquire, Memphis, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we
DENY the appellant’s petition for review, VACATE the initial decision
dismissing the appeal for lack of jurisdiction, and instead DISMISS the appeal as
untimely filed without good cause shown.
BACKGROUND
¶2 The appellant is employed by the agency as an Electronic Technician.
Initial Appeal File (IAF), Tab 1 at 1. On May 18, 2013, he filed a formal equal
employment opportunity (EEO) complaint of discrimination alleging that the
2
agency discriminated against him on the bases of his race, age, and disability
when management followed him and stared at him, spoke to him in a
disrespectful and demeaning manner, yelled at him and threatened him, stated
that he did not work like the other electronic technicians, and gave him an
investigative interview about a log book. IAF, Tab 4 at 251-52, 262. On
August 12, 2013, the agency amended the appellant’s EEO complaint to include
additional claims he raised in his affidavit, including his receipt of a May 31,
2013 notice of proposed placement on enforced leave. Id. at 251-54. By letter
dated October 1, 2013, the agency sustained the proposal to place the appellant
on enforced leave. Id. at 244.
¶3 On January 8, 2016, the agency issued a final agency decision (FAD)
finding no merit to the appellant’s discrimination claims. 1 Id. at 16-38. On
February 13, 2016, the appellant filed a Board appeal. IAF, Tab 1. The agency
moved to dismiss the appeal as untimely filed and/or for lack of jurisdiction.
IAF, Tab 4 at 4-7. The agency argued that the appellant’s February 13, 2016
appeal was untimely filed both as an appeal of its January 8, 2016 FAD and as a
direct appeal of its October 2013 decision to sustain the proposal to place the
appellant on enforced leave. Id. at 7. Alternatively, the agency argued that the
Board lacks jurisdiction over the appeal unless it deems the October 2013
decision to sustain the proposed enforced leave to be part of the claims
investigated by the agency in the appellant’s EEO complaint. Id. at 5-6.
1
The appellant initially requested a hearing before an administrative judge with the
Equal Employment Opportunity Commission (EEOC) instead of a FAD. IAF, Tab 4
at 240. The EEOC administrative judge, however, deemed the enforced leave claim to
be part of the appellant’s EEO complaint and found that the appeal was a mixed-case
appeal, which did not entitle the appellant to a hearing before the EEOC. Id. at 56-57.
Consequently, she dismissed the appellant’s hearing request and remanded the case to
the agency for issuance of a FAD. Id.
3
¶4 The administrative judge issued a show cause order informing the appellant
that his appeal appeared to be untimely filed by 1 day because the record
reflected that he received the FAD on January 13, 2016. IAF, Tab 6 at 4. The
administrative judge further informed the appellant that it appeared that the Board
lacks jurisdiction over his appeal because he had not amended his EEO complaint
to include his October 2013 placement on enforced leave. Id. at 3. Thus, the
administrative judge ordered the appellant to file evidence and argument
establishing the Board’s jurisdiction over his appeal and that his appeal was
either timely filed or good cause existed for his untimely filing. Id. at 3, 5-6.
¶5 In response, the appellant argued that his appeal was timely filed because
he did not actually receive the FAD until he checked his post office box on
January 16, 2016. IAF, Tab 8 at 9. The appellant also argued that his enforced
leave claim was part of his EEO complaint because the Equal Employment
Opportunity Commission administrative judge determined as much. IAF, Tab 8
at 6-9. The administrative judge issued an initial decision dismissing the appeal
for lack of jurisdiction, finding that the appellant’s EEO complaint encompassed
only his proposed placement on enforced leave, not the October 1, 2013 decision
sustaining the enforced leave, and the Board lacks jurisdiction over a proposed
adverse action. IAF, Tab 11, Initial Decision (ID) at 5-6. Because of his
jurisdictional determination, the administrative judge did not reach the issue of
the timeliness of the appeal. ID at 6 n.4.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 3.
ANALYSIS
¶7 When, as here, an appellant has filed a timely formal complaint of
discrimination with the agency, a subsequent Board appeal must be filed within
30 days after the appellant receives the agency’s FAD. 5 C.F.R. § 1201.154(b).
Previously, both the Board and its reviewing court held that the time period under
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a prior version of this regulation began to run from the date of the appellant’s
actual receipt of the FAD, even in situations in which the appellant’s receipt was
delayed by his own negligence. See Hamilton v. Merit Systems Protection Board,
75 F.3d 639, 646-47 & n.9 (Fed. Cir. 1996); Saddler v. Department of the Army,
68 F.3d 1357, 1358-59 (Fed. Cir. 1995); Cody v. Department of the Navy,
104 M.S.P.R. 161, ¶ 13 (2006). However, the Board issued a new regulation,
effective November 13, 2012, providing that an appellant may be deemed to have
constructively received a FAD under certain circumstances. 77 Fed. Reg. 62,350,
62,364, 62,371 (Oct. 12, 2012) (codified at 5 C.F.R. §§ 1201.22(b)(3), 1201.154);
77 Fed. Reg. 33,663, 33,673, 33,679 (June 7, 2012).
¶8 Under the new regulation, the date the appellant receives the FAD is
determined according to the standard set forth at 5 C.F.R. § 1201.22(b)(3), which
states that:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and 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. While such a
presumption may be overcome under the circumstances of a
particular case, an appellant may not avoid service of a properly
addressed and mailed decision by intentional or negligent conduct
which frustrates actual service.
5 C.F.R. § 1201.22(b)(3); see 5 C.F.R. § 1201.154. The rule provides several
illustrative examples, including the following: “An appellant who fails to pick up
mail delivered to his or her post office box may be deemed to have received the
agency decision.” 5 C.F.R. § 1201.22(b)(3) (Example A).
¶9 Here, it is undisputed that the FAD was delivered to the appellant’s post
office box on January 13, 2016. IAF, Tab 4 at 14, 39, Tab 8 at 9. The appellant
contends that his appeal was timely filed because he di d not actually receive the
FAD until he checked his mail on January 16, 2016. IAF, Tab 8 at 9. According
to the unsworn statement of the appellant, he checks his mail twice weekly and
5
had checked it on January 12 and 16, 2016. Id. We find such arguments
unavailing. 2 Under 5 C.F.R. § 1201.22(b)(3), the appellant constructively
received the FAD on January 13, 2016, the date it was delivered to his post office
box. Thus, under the Board’s regulations, the appellant was required to file his
appeal on or before February 12, 2016, 30 days after his receipt of the FAD.
5 C.F.R. § 1201.154(b)(1). Accordingly, the appellant’s February 13, 2016
appeal was untimely filed by 1 day. See 5 C.F.R. § 1201.4(l) (stating that the
date of filing by mail is determined by the postmark date).
¶10 If an appellant fails to timely submit his appeal, it will be dismissed as
untimely filed absent a showing of good cause for the delay in filing. 5 C.F.R.
§ 1201.22(c). 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 if an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of his
excuse and his showing of 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 unfavorable
casualty or misfortune which similarly shows a causal relationship to his inability
to timely file his claim. Moorman v. Department of the Army, 68 M.S.P.R. 60,
2
The appellant was expecting the agency FAD and is presumed to understand
procedural deadlines for appeals. He was, therefore, under a heightened obligation to
monitor his incoming mail. See generally Rocha v. Merit Systems Protection
Board & Department of State, 688 F.3d 1307 (Fed. Cir. 2012) (finding that, although
the appellant claimed that he did not receive the administrative judge’s initial decision,
the record showed that the decision was sent to the email address the appellant provided
to the Board when he filed his appeal; the court noted that, as a registered e -filer, the
appellant consented to accept all documents issued by the Board in electronic form, and
he was required by regulation to monitor his case online to insure that he received all
case-related documents).
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62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Beyond his assertion
that he did not receive the FAD until January 16, 2016, because he did not check
his post office box every day, the appellant has not offered any other evidence or
argument regarding any additional circumstances that affected his ability to
timely file his appeal. Thus, we find that he has not established good cause for
his untimely filing. Accordingly, we dismiss the appeal as untimely filed without
good cause for the delay. 3
ORDER
¶11 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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 reques t 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
3
Because we find the appeal untimely, we do not address whether the Board has
jurisdiction over the appeal. See, e.g., Popham v. U.S. Postal Service, 50 M.S.P.R. 193,
197-98 (1991) (holding that, if the record is sufficiently developed on the issue of
timeliness, the Board may dismiss an appeal as untimely without making a
determination as to jurisdiction).
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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 servi ces provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.