Opinion

Keithy Bailey v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jan 27, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

finding good cause for a 10-day filing delay when the appellant had taken all steps necessary to ensure a timely filing, including contacting her attorney 6 days before the deadline and getting assurance that the appeal would be timely filed

How later courts described this case

finding good cause for a 10-day filing delay when the appellant had taken all steps necessary to ensure a timely filing, including contacting her attorney 6 days before the deadline and getting assurance that the appeal would be timely filed

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITHY L. BAILEY, DOCKET NUMBER

Appellant, DA-0752-21-0428-I-1

UNITED STATES POSTAL SERVICE, DATE: January 27, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Vanessa Duncan-Smith, Hackensack, New Jersey, for the appellant.

Albert Lum, Brooklyn, New York, for the appellant.

Theresa M. Gegen, Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, 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.

On review, the appellant challenges the administrative judge’s finding that

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

she did not exercise due diligence or ordinary prudence in monitoring her appeal

to ensure it was timely filed after submitting the relevant paperwork to her

representatives. Petition for Review (PFR) File, Tab 1 at 3. She argues that the

untimeliness of her appeal is due to Postal Service delivery errors and her

representatives’ lack of diligence. Id. at 3-5. Generally, we grant petitions such

as this one only in the following circumstances: the initial decision cont ains

erroneous findings of material fact; the initial 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 administrative 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 argu ment is available that,

despite the petitioner’s due diligence, was not available when the record closed.

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, 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 to explain why her arguments regarding

mail delivery and lack of due diligence by her representatives do not provide

good cause to excuse the delay, we AFFIRM the initial decision.

¶2 The Board has routinely held that an appellant is bound by the action or

inaction of her chosen representative, and delays caused by a representative will

not constitute good cause to excuse a filing delay. Strong v. Department of the

Navy, 86 M.S.P.R. 243, ¶ 7 (2000). The Board will bypass this general rule when

the appellant has proven that her diligent efforts to prosecute her appeal were,

without her knowledge, thwarted by her representative’s deceptions and

negligence. Id. However, an appellant remains responsible for monitoring the

progress of her appeal, and her unwarranted belief that her representative is

pursuing her appeal is not a proper basis for finding due diligence. Id. Here,

the appellant has not alleged deception by her representatives. Further,

as discussed below, she has not shown that she monitored her appeal.

¶3 Alternatively, it may be appropriate to find good cause for an attorney’s

negligent failure to meet a deadline when an appellant did “everything that could

reasonably be expected of her” to ensure her attorney met the deadline, but he

still failed to do so. Herring v. Merit Systems Protection Board, 778 F.3d 1011,

1012-15, 1017-18 (Fed. Cir. 2015) (finding good cause for a 10-day filing delay

when the appellant had taken all steps necessary to ensure a timely filing,

including contacting her attorney 6 days before the deadline and getting assurance

that the appeal would be timely filed) (emphasis in original). We find the

circumstances here are not appropriate for finding good caus e on this basis.

¶4 On August 12, 2021, the appellant mailed her appeal form and other

materials to her representatives via U.S. Postal Service Express Mail. Initial

Appeal File (IAF), Tab 7 at 12-13. One of her representatives submitted a

declaration below stating that he regularly checked the post office box to which

the appellant mailed her Express Mail package on August 12, 2021, and he did

not receive either the package or notice that it was available for pick up .

Id. at 13. The agency’s tracking information reflects that, as of August 16, 2021,

it had generated two notices that the package was available. IAF, Tab 10 at 27.

After no one retrieved the package, the agency designated it as unclaimed on

August 28, 2021, and proceeded to return it to the appellant. IAF, Tab 7 at 13,

Tab 10 at 27. The Postal Service ultimately delivered the returned package to the

appellant after the deadline for filing the instant appeal. 2 IAF, Tab 10 at 26.

The Board has found that an appellant who fails to pick up mail delivered to her post

office box is deemed to have constructively received the mail the date it was delivered

to the box. Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶ 9 (2017); 5 C.F.R.

§ 1201.22(b)(3). We find it unnecessary here to resolve whether the appellant’s

representatives received constructive notice of the appellant’s August 12, 2021 package

when the Postal Service attempted delivery. Assuming that her representatives did not,

as claimed, receive either the package or notices that it was available, we still find the

appellant failed to exercise due diligence.

¶5 Here, the appellant did not do everything she could to ensure timely filing

of her appeal. For the first time on review, she attests that, on the same day that

she mailed her package containing her appeal form, she “verbally notified” one of

her representatives that she sent the paperwork and emailed another a copy of all

paperwork she had mailed via Express Mail along with the Express Mail tracking

number. PFR File, Tab 1 at 3. She indicated that her representatives never

notified her that they did not receive her paperwork. Id.; IAF, Tab 7 at 12-13.

However, she also did not contact her representatives to inquire about her appeal

until September 29, 2021, when she received information that she was “being

taken off the employment roll.” IAF, Tab 7 at 12-13. At that time, one of her

representatives advised her that he never received her appeal paperwork. Id. The

appellant filed her appeal the next day but by that point was untimely by

approximately 45 days. IAF, Tab 1, Tab 10 at 28-33.

¶6 We agree with the administrative judge that the appellant did not take the

necessary steps to ensure her appeal was timely filed. IAF, Tab 12, Initial

Decision (ID) at 5. On review, she does not challenge the administrative judge’s

finding that she did not contact her representatives at any point between

August 12, when she mailed her appeal package, and the August 16, 2021 filing

deadline to confirm that they received her paperwork and would file the appeal on

her behalf. ID at 5. She also does not dispute that she failed to check the

tracking information for her package, which reflected that it was unclaimed and

being returned to her as of August 28, 2021. ID at 5; IAF, Tab 7 at 9. Instead,

she waited until she learned she was being taken off the a gency’s rolls to follow

up on whether her representatives had filed her appeal.

NOTICE OF APPEAL RIGHTS 3

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your cas e, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may h ave updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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 secur ity. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the