The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT G. HULST, DOCKET NUMBER
Appellant, SF-0752-17-0215-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: January 24, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
John Rodriguez, San Diego, California, for the appellant.
Justin Strong, Los Angeles Air Force Base, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. For the reasons discussed below, we
GRANT the appellant’s petition for review and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant has been a GS-9 Machinist with the Department of the Air
Force since 2016. Initial Appeal File (IAF), Tab 1 at 7. On June 22, 2016, the
appellant received a notice of proposed removal for falsifying questionnaire
responses during the hiring process, which was later amended on August 17,
2016. Id. at 7, 9. On October 17, 2016, the appellant received notice of the
agency’s decision to remove him from the position, with an effective date of
October 18, 2016. Id. at 11. This notice included the appellant’s appeal rights
and deadline for filing such an appeal to the Board. Id. The appellant’s
representative filed an appeal with the Board on January 19, 2017. Id. at 18.
¶3 The administrative judge advised the appellant that appeals not filed within
the time period required by the Board’s regulations may be dismissed as untimely
without addressing the underlying merits of the case. IAF, Tab 2 at 2. The
administrative judge indicated that the filing period began on October 18, 2016 ,
but that the appeal was filed by regular mail on January 19, 2017, well after the
30-day filing deadline. Id. The administrative judge ordered the appellant to file
evidence and/or argument that the appeal was filed on time or that good cause
exists for the delay in filing. Id. at 3.
¶4 The appellant responded and indicated that his union representative sent the
appeal to the Board via certified mail on November 8 or 9, 2016 , but that the
receipt had been misplaced. IAF, Tab 4 at 1. He further asserted that, upon
calling the Board and discovering it had not received the appeal, the union
representative re-filed the appeal on January 19, 2017. Id. The appellant also
provided certified mail receipts dated November 8, 2016, to demonstrate that
copies of the appeal were mailed to the agency, as it requested, and to the
appellant. Id. at 3. The agency filed a motion and urged that the appeal be
dismissed as untimely. IAF, Tab 11.
¶5 Without holding a hearing, the administrative judge dismissed the appeal as
untimely filed without good cause shown for the delay. IAF, Tab 12, Initial
3
Decision (ID). Specifically, the administrative judge found that the appellant’s
representative failed to mail the appeal to the Board in November 2016, and that
the appellant, through his representative, demonstrated a lack of due diligence by
not obtaining a postal receipt and by allowing 2 months to pass after the filing
deadline before contacting the Board to question receipt of the appeal. ID at 5-7.
The appellant filed a petition for review and the agency filed a response in
opposition to the appellant’s petition. Petition for Review (PFR) File, Tabs 1, 3. 2
In his petition for review, the appellant reasserts his argument that his union
representative mailed his appeal on November 8 or 9 of 2016. PFR File, Tab 1
at 2-3. He further states that he was being proactive by following up with the
Board in January of 2017 when he was told it had not received his appeal. Id.
at 2.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 An appeal must be filed with the Board within 30 days of the effective date
of an appealable agency action, or 30 days after the individual receives notice of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). The Board will
dismiss an appeal that is filed untimely unless the appellant shows good cause for
the delay. 5 C.F.R. § 1201.22(c). The agency’s October 17, 2016 decision letter
informed the appellant that he had 30 days after the October 18, 2016 effective
date of the removal or 30 days after the date he received the agency’s decision
letter, whichever was later, to file his appeal. IAF, Tab 1 at 11. The appellant
received the decision letter on October 17, 2016. Id. at 2. Consequently, the
deadline for filing this appeal was November 17, 2016. See 5 C.F.R.
§ 1201.22(b).
2
Although the appellant’s petition for review appeared to lack a signature , as required
by 5 C.F.R. § 1201.114(c), the Office of the Clerk of the Board did not reject the
petition, and we therefore take no further action regarding this issue . PFR, Tab 1.
4
¶7 If the appellant’s January 19, 2017 appeal was the only appeal, it was
untimely filed by 63 days. IAF, Tab 1 at 18. However, the appellant alleged, in
both his responses to the administrative judge and his petition for review, that his
union representative filed his appeal on November 8 or 9, 2016. IAF, Tab 1; PFR
File, Tab 1. In support of that claim, the appellant provided a signed statement
from his union representative that the appeal was timely filed on November 8
or 9, 2016 and was sent by certified mail to the Board’s Western Regional
Office’s address at 201 Mission Street, Suite 2310, San Francisco, CA,
94105-1831. 3 IAF, Tab 1 at 15-16. The appellant also provided certified mail
receipts dated November 8, 2016, allegedly documenting that copies of the appeal
were also mailed to the agency, as it requested, and the appellant. IAF, Tab 1
at 17. In response to the administrative judge’s order regarding timeliness, the
appellant also submitted his own unsworn statement reiterating when and how the
appeal was filed in November 2016 and provided the same certified mail receipts.
IAF, Tab 4. The agency has not rebutted the appellant’s argument that his
representative sent a copy of the initial appeal to the agency nor shown that it
would be prejudiced if the appeal were granted. IAF, Tab 11; PFR File, Tab 3.
¶8 When an appellant presents facially credible evidence sufficient to establish
a dispute as to material facts regarding the timely filing of his appeal or good
cause excusing his late filing, the administrative judge must hold a hearing to
resolve the factual dispute. Stout v. Merit Systems Protection Board,
389 F.3d 1233, 1241 (Fed. Cir. 2004); Nelson v. U.S. Postal Service,
88 M.S.P.R. 331, ¶ 5 (2001). The Board has held that evidence that a pleading
was sealed, properly addressed to the Board with postage prepaid, and placed in
the U.S. Postal Service mail stream gives rise to a presumption that it was filed
on the date it was placed in the U.S. Postal Service mail stream, regardless of
whether the Board receives it. Gaydon v. U.S. Postal Service, 62 M.S.P.R. 198,
3
This was the correct address for the Board’s San Francisco Regional Office at the
time. In the fall of 2017, the regional office moved to Oakland, California.
5
202, review dismissed, 36 F.3d 1113 (Fed. Cir. 1994) (Table). Direct evidence is
required to invoke the presumption of delivery and receipt, which may be in the
form of a document or testimony. Foust v. Department of the Treasury,
80 M.S.P.R. 477, ¶ 5 (1998), review dismissed, 194 F.3d 1332 (Fed. Cir. 1999)
(Table). The party invoking the presumption must present specific details
concerning the mailing, such as the time of day and place of the mailing . Freeze
v. Department of Veterans Affairs, 65 M.S.P.R. 149, 152 (1994).
¶9 In this case, the question of whether the appellant’s representative filed an
appeal on November 8 or 9, 2016, is a factual matter in dispute. The appellant
asserts, with more than a bare allegation, that he did. The documentary evidence
submitted thus far establishes the existence of a genuine factual dispute and
supports the appellant’s assertion that he timely filed his appeal. See Hutchison
v. Merit Systems Protection Board, 91 F.3d 1458, 1460-61 (Fed. Cir. 1996); see
also Scott v. Department of Justice, 69 M.S.P.R. 211, 228 (1995) (holding that
while an unsworn statement by an appellant is admissible e vidence, the fact that it
is unsworn may detract from its probative value), aff’d, 99 F.3d 1160 (Fed. Cir.
1996) (Table); Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168
(1995) (finding that while statements of a party’s representative in a pleading do
not constitute evidence, unchallenged assertions of the party’s representations
may constitute nonfrivolous allegations raising factual questions).
¶10 Here, the appellant raised a factual issue and requested a hearing. IAF
Tab 1 at 1. Thus, we find it necessary to remand this matter to the regional office
with the instruction that an evidentiary hearing be held on the timeliness issue.
On remand, the appellant may present evidence and argument to show that the
November 8, 2016 receipt he provided reflects a mistaken filing of the petition
for appeal with the agency, and if it does, he must present evidence and argument
to show that he filed the petition with the Board as soon as he learned of the
mistake. See Sanford v. Department of Defense, 61 M.S.P.R. 207, 210 (1994).
The appellant also may present evidence and argument to support his assertion
6
that he filed his petition for appeal with both the agency and the B oard on
November 8 or 9, 2016. If the administrative judge finds that the appellant timely
filed his appeal, or that good cause exists to waive the filing time limit, the case
should proceed on its merits. If, however, the administrative judge finds, after
reviewing the evidentiary and testimonial evidence, that the appellant failed to
timely file his appeal or failed to demonstrate that good cause exists to waive the
filing deadline, then the administrative judge may dismiss the appeal as untimely
filed.
ORDER
¶11 For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.