Robin Brown v. National Credit Union Administration

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBIN BROWN, DOCKET NUMBER

Appellant, PH-0432-19-0213-I-1

v.

NATIONAL CREDIT UNION DATE: March 28, 2024

ADMINISTRATION,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Robin Brown , Wilmington, Delaware, pro se.

Shamar R. Cowan , Alexandria, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal as untimely filed without good cause shown for the delay.

Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous findings of material fact;

the initial decision is based on an erroneous interpretation of statute or regulation

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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 argument 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). For the reasons

discussed below, we GRANT the appellant’s petition for review, VACATE the

initial decision, and REMAND the case to the regional office for further

adjudication in accordance with this Remand Order.

BACKGROUND

By decision dated March 5, 2019, the agency removed the appellant

effective March 8, 2019, from her position of CU-12 Principal Examiner for

performance reasons under the provisions of 5 U.S.C. chapter 43. Initial Appeal

File (IAF), Tab 5 at 35-40. On April 10, 2019, the appellant filed the instant

Board appeal challenging her removal and indicating that she received the

agency’s decision on March 11, 2019. IAF, Tab 1 at 1, 6. The administrative

judge issued a timeliness order, stating that the appeal appeared to be untimely

and informing the appellant of the general timeliness standards. IAF, Tab 3

at 2-4. He ordered both the appellant and the agency to file evidence and

argument on the issue. Id. at 3-4. The appellant did not respond within the

deadline, and the agency moved to dismiss the appeal as untimely filed. IAF,

Tab 5. It submitted evidence showing that the decision letter was delivered to the

appellant’s home address via Federal Express on March 6, 2019. Id. at 42.

The administrative judge issued an initial decision dismissing the appeal as

untimely filed without good cause shown for the delay. IAF, Tab 7, Initial

Decision (ID). The administrative judge found that, because the appellant

received the agency’s decision before its effective date, the 30-day filing period

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began to run on March 8, 2019, the effective date of the removal. ID at 3. He

further found that the appellant failed to offer any evidence to show that the

appeal was timely filed or that good cause existed to justify a waiver of the filing

deadline. ID at 4.

The appellant has filed a petition for review, arguing that, although the

agency’s decision was delivered on March 6, 2019, she did not actually receive it

until March 11, 2019, because she had been traveling abroad. Petition for Review

(PFR) File, Tab 1 at 4-5. The agency has filed a response. PFR File, Tab 3.

ANALYSIS

Under 5 C.F.R. § 1201.22(b)(1), an appeal must be filed no later than

30 days after the effective date of the action being appealed, or 30 days after the

date of the appellant’s receipt of the agency’s decision, whichever is later. In this

case, the filing date of the appeal, April 10, 2019, is undisputed. IAF, Tab 1;

see 5 C.F.R. § 1201.4(l) (“The date of filing by e-filing is the date of electronic

submission.”). Therefore, the timeliness issue hinges on the date that the

appellant received the agency’s decision, a matter which is in dispute and upon

which the appellant bears the burden of proof. See 5 C.F.R. § 1201.56(b)(2)(i)

(B).

In his initial decision, the administrative judge found that “[b]ecause the

appellant received the letter of decision on March 6, 2019, and the effective date

of her removal was March 8, 2019, the appeal deadline runs from her date of

removal.” ID at 3. However, the only evidence that the appellant received the

decision letter on March 6, 2019, was a Federal Express delivery notification

showing that the letter had been delivered to her address on that date. 2 IAF,

Tab 5 at 42. Although this delivery notice created a rebuttable presumption that

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Along with its response to the timeliness order, the agency submitted a copy of a

March 5, 2019 email from the deciding official to the appellant at her work email

address that included an “advance copy” of the decision letter. IAF, Tab 5 at 44. The

appellant, however, was on leave during this time, and there is no indication that she

was monitoring her work email. PFR File, Tab 1 at 5.

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the appellant received the letter on March 6, 2019, see 5 C.F.R. § 1201.22(b)(3),

the appellant rebutted this presumption by certifying on her appeal form that she

did not actually receive it until March 11, 2019, 3 IAF, Tab 1 at 6; see Cabarloc v.

Department of Veterans Affairs, 110 M.S.P.R. 695, ¶¶ 7, 11 (2009) (finding that

the appellant’s statement on his appeal form as to the date of receipt of the

agency’s removal decision, coupled with supporting circumstantial evidence, was

sufficient to rebut the presumption of receipt in the due course of the mail). In

the absence of actual receipt of the agency’s decision on March 6, 2019, the

administrative judge effectively charged the appellant with constructive receipt

on that date.

Under 5 C.F.R. § 1201.22(b)(3), an appellant may be deemed to have

constructively received documents under certain circumstances. Little v. U.S.

Postal Service, 124 M.S.P.R. 183, ¶¶ 7-8 (2017). This regulation provides as

follows:

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. The appellant may also be deemed to

have received the agency’s decision if it was received by a

designated representative or a person of suitable age and discretion

residing with the appellant.

5 C.F.R. § 1201.22(b)(3).

Thus, an appellant may be deemed to have received an agency’s decision

letter if actual receipt was frustrated by her intentional or negligent actions, or if

the decision letter was actually received by certain other persons. We find it

inappropriate at this time to charge the appellant with constructive receipt of the

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The delivery notice specifically states “[s]ignature not required” and that the package

was “[l]eft at front door.” IAF, Tab 5 at 42.

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agency’s decision because the timeliness order, the initial decision, and the

agency’s filings did not apprise her of the applicable legal standard. IAF, Tabs 3,

5; ID. Before an appeal can be dismissed on timeliness grounds, the appellant

must receive notice of the specific timeliness issue presented by the

circumstances of her case. Farooq v. Corporation for National and Community

Service, 109 M.S.P.R. 73, ¶ 12 (2008).

Because the administrative judge dismissed the appeal on timeliness

grounds without affording this pro se appellant the required notice, we have

considered the evidence and argument that she has filed for the first time on

petition for review. See Hamilton v. Merit Systems Protection Board, 75 F.3d

639, 642, 646-47 (Fed. Cir. 1996) (considering evidence related to timeliness that

the appellant submitted for the first time on review when the initial decision was

the first notice she had of the delivery presumptions on which the administrative

judge relied in finding her appeal untimely). Reviewing the parties’ submissions,

it is apparent that neither one of them fully complied with the administrative

judge’s timeliness order. The appellant did not respond to the order at all, and

the agency provided only a portion of the relevant evidence in its possession.

IAF, Tab 3 at 4, Tab 5; PFR File, Tab 3. The Board now has a more complete

picture of the facts and circumstances surrounding the timeliness issue than the

one that was available to the administrative judge.

The record shows that the appellant maintains three different residences—

one in Delaware, one in Georgia, and one in Pennsylvania, although her Delaware

residence seems to be the primary one and was the address that she designated

with the agency for purposes of receiving the decision letter. PFR File, Tab 1

at 5, Tab 3 at 11. In addition to sending its decision letter to the appellant’s work

email on March 5, 2019, and by Federal Express to her Delaware address on

March 6, 2019, the agency also sent copies of the letter by mail to the appellant’s

Delaware, Georgia, and Pennsylvania addresses. IAF, Tab 5 at 45; PFR File,

Tab 1 at 5, 10, Tab 3 at 16. These letters arrived on or about March 8, 2019.

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PFR File, Tab 1 at 10, Tab 3 at 16. The Delaware letter was signed for by an

unidentified individual other than the appellant. PFR File, Tab 3 at 16. The

Georgia letter was not delivered because there was no authorized individual

available to receive it. PFR File, Tab 1 at 10. A notice was left on the door, and

the letter was returned to the local postal facility for pickup. Id. at 5, 10. The

appellant returned from her trip abroad and arrived at her Georgia residence later

that day. She discovered the notice shortly before midnight on Friday, March 8,

2019. Id. at 1. The appellant went to the post office and retrieved the letter the

following Monday, March 11, 2019. Id. at 5, 10.

The current record, therefore, appears to corroborate the appellant’s

statement on her appeal form that she did not actually receive the agency’s

decision letter until March 11, 2019. However, it may also support a finding of

constructive receipt prior to that date to the extent that the appellant was

negligent in failing to retrieve the Georgia decision letter from the post office at

her earliest opportunity, see Little, 124 M.S.P.R. 183, ¶¶ 7-10 & n.2 (finding an

appellant constructive received a document that he was expecting on the date it

was delivered to his post office box), or to the extent that either the Federal

Express delivery or the mailing to her address of record was received by a person

of suitable age and discretion residing with the appellant, see Marcantel v.

Department of Energy, 121 M.S.P.R. 330, ¶ 7 (2014) (concluding that an

appellant constructively received a removal decision sent to his address of record

and signed for by his father). Nevertheless, because the appellant had not

received specific notice of the precise timeliness issue in her case at the time she

filed her petition for review, and she has not yet had a full and fair opportunity to

litigate it, we decline to make any findings on the timeliness issue at this time.

See Wright v. Department of Transportation , 99 M.S.P.R. 112, ¶ 13 (2005)

(remanding an appeal for the administrative judge to give clear notice to an

appellant of the precise timeliness issue involved in his appeal). We find it most

appropriate to remand the appeal for the administrative judge to make these

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findings in the first instance after affording the parties an additional opportunity

to file evidence and argument relevant to the specific issues of timeliness

presented in this case.

ORDER

For the reasons discussed above, we remand this case to the regional office

for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.