The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM A. WILKINS, DOCKET NUMBER
Appellant, DC-0752-17-0238-I-1
v.
DEPARTMENT OF THE ARMY, DATE: October 7, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
William A. Wilkins, Hanau, Hessen, Germany, pro se.
Scott Stauffer, APO, AE, 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 removal appeal as untimely. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
BACKGROUND
¶2 On January 9, 2017, the appellant, appearing pro se, filed an appeal
challenging the agency’s action removing him effective October 15, 2016. Initial
Appeal File (IAF), Tab 1. On his appeal form, the appellant certified as true that
he received the removal decision on December 12, 2016, and he indicated that he
did not want a hearing on his appeal. Id. at 2-3, 7. Because the appeal appeared
to have been untimely, the administrative judge ordered the appellant to show that
the appeal was timely filed or that he had good cause for his untimely filing.
IAF, Tab 3. The appellant did not respond to the timeliness order.
¶3 The agency responded to the order by moving that the appeal should be
dismissed because the appellant filed his appeal long after the filing period
expired. IAF, Tab 6 at 6. In support of its motion, the agency provided a
stamped U.S. Postal receipt, confirming that the removal decision letter was
mailed to the appellant’s forwarding address on October 13, 2016. Id. at 19-20.
However, the agency did not provide any documentation confirming delivery. A
search on the U.S. Postal Service website, usps.com, of the tracking number on
the postal receipt revealed that the letter was “return[ed] to sender” without
explanation. 2 The U.S. Postal Service returned it to the agency on October 20,
2016.
¶4 The administrative judge issued an initial decision, dismissing the appeal as
untimely filed without good cause shown. IAF, Tab 7, Initial Decision (ID) at 3.
She found that the decision letter notified the appellant with notice of his appeal
rights and instructions for timely filing his appeal, and that the effective date of
2
Although the U.S. Postal Service tracking report is not part of the record, it is publicly
available and therefore we take official notice of it. See 5 C.F.R. § 1201.64 (providing
that an administrative judge may take official notice of matters of common knowledge
or that can be verified).
3
his removal was October 15, 2016. The administrative judge also found that the
appellant’s appeal was untimely filed on January 9, 2017. ID at 1, 3. The
administrative judge found, moreover, that the appellant failed to support his
claim that he did not receive the removal decision until December 12, 2016, or to
otherwise show good cause for his filing delay. ID at 3.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to his petition, and the
appellant has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant argues that his filing delay was caused by a
medical condition and he submits supporting medical documentation with his
petition. PFR File, Tab 1 at 2-19, Tab 5 at 2-5. In response, the agency argues
that the Board should deny the petition for review because the appellant failed to
respond to the administrative judge’s timeliness order, and he has not shown that
the evidence he submits on review is new and material or previously unavailable.
PFR File, Tab 4 at 6-7. Although the appellant did not respond to the
administrative judge’s order regarding timeliness, we find that the record on
appeal was sufficient to conclude that his appeal was timely filed for the reasons
discussed below. Thus, we need not consider the appellant’s evidence and
argument on review that his medical condition provided good cause to waive the
filing deadline. See 5 C.F.R. § 1201.115(d) (providing that a petition for review
may be granted based on a showing that new and material evidence is available
that, despite the petitioner’s due diligence, was not available when the record
closed); see also Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998)
(setting forth the elements that a party must prove to establish that an untimely
filing was the result of an illness).
¶7 To be timely, an appellant must file his appeal within 30 calendar days after
the effective date of the challenged action or receipt of the agency’s decision,
4
whichever is later. See 5 C.F.R. § 1201.22(b)(1). Properly addressed
correspondence sent to the appellant via postal or commercial delivery generally
is presumed to have been duly delivered to the addressee. See 5 C.F.R.
§ 1201.22(b)(3).
¶8 Here, the appellant stated on his appeal form that he received the agency’s
removal decision letter on December 12, 2016. IAF, Tab 1 at 3. He also averred
that the contents of his appeal form were true. Id. at 7. The administrative judge
dismissed the appeal as untimely filed based in part on the appellant’s failure to
respond to her timeliness order. ID at 3. In dismissing the appeal, however, the
administrative judge did not explicitly identify the appellant’s deadline for
appealing his removal to the Board. Thus, the basis for the administrative judge’s
finding that the appeal was untimely filed is unclear. Nonetheless, i t appears that
she found that the agency delivered the removal decision letter to the appellant
before the October 15, 2016 removal date identified in the letter, and that he
should be deemed to have received it before the December 12, 2016 receipt date
that he certified on his appeal form. ID at 3.
¶9 We disagree with the administrative judge’s finding that this appeal was
untimely filed because there is no evidence in the record either that the appellant
received the removal decision before the effective date of his removal or
discrediting his certification on his appeal form that he received the removal
decision on December 12, 2016. Although the Board generally presumes that
documents placed in the mail are received in 5 days , that presumption was
rebutted here by the appellant’s certified statement that he received the decision
later. See Cabarloc v. Department of Veterans Affairs, 110 M.S.P.R. 695, ¶¶ 7-8
(2009); 5 C.F.R. §§ 1201.22(b)(3), 1201.23. Moreover, as stated above, the
decision letter that the agency sent to the appellant on October 13, 2016, was
returned. IAF, Tab 6 at 19. The agency submitted no proof of delivery. Based
on the record, we therefore find that the appellant proved that he received the
decision letter on December 12, 2016, requiring that he file his appeal on or
5
before January 11, 2017, within 30 days of receiving the decision. See 5 C.F.R.
§ 1201.22(b)(1). The appellant filed his appeal on January 9, 2017, before the
filing deadline. Accordingly, we find that his appeal was timely filed.
ORDER
¶10 For the reasons discussed above, we vacate the initial decision and remand
this case to the Board’s Washington 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.