The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICKEY HAWKINS, DOCKET NUMBER
Appellant, AT-0752-22-0392-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 4, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Rickey Hawkins , Madison, Alabama, pro se.
Erika McPherson , Redstone Arsenal, Alabama, 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 his appeal concerning his removal for medical inability as untimely
filed by 9 days without good cause shown. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
**
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
BACKGROUND
The appellant was removed from Federal service for medical inability to
perform, effective April 9, 2022. Initial Appeal File (IAF), Tab 1 at 8-10. On
May 18, 2022, he filed an initial appeal by facsimile (fax). Id. at 1. The agency
requested that the administrative judge dismiss the appeal as untimely because it
was not filed within 30 days of the effective date of the removal, i.e., no later
than May 9, 2022. IAF, Tab 7 at 7. The administrative judge issued a timeliness
order, which notified the appellant that his appeal appeared to be untimely filed
by 9 days. IAF, Tab 8 at 2. In the order, the administrative judge instructed the
appellant how to establish good cause for an untimely filing and instructed him to
file evidence and argument in support thereof. Id. at 2-4. The appellant filed two
responses to the timeliness order. IAF, Tabs 9-10. In relevant part, the appellant
asserted, without support, that he filed his “application” with the Board on May 5,
2022. IAF, Tab 10 at 2. He asserted that he attempted to send documents to the
regional office, which he later learned were “cut off in the fax.” IAF, Tab 9 at 3.
The appellant also generally referenced his medical conditions; however, he did
not specifically explain how his medical conditions affected his ability to timely
file an appeal. IAF, Tab 10 at 2. Without holding a hearing, the administrative
judge issued an initial decision dismissing the appeal as untimely filed by 9 days
without good cause shown. IAF, Tab 13, Initial Decision at 1-6.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3, 7. On review, the appellant asserts that his initial appeal was timely
filed on May 6, 2022. PFR File, Tab 1 at 2, 4-6. He has attached a “fax delivery
report” showing a fax transmission to the regional office on that date. Id. at 2, 4.
The “status” column on the fax delivery report indicates that the transmission was
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delivered. Id. He has also filed documents related to his medical condition. Id.
at 7-9.
DISCUSSION OF ARGUMENTS ON REVIEW
Generally, a Board 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 receipt of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). Fax
transmissions are considered filed on the date of the facsimile. 5 C.F.R.
§ 1201.4(l). The date of the appellant’s initial appeal is May 18, 2022, 9 days
after the filing deadline. IAF, Tab 1 at 1.
The Board will dismiss an appeal that is untimely filed unless the appellant
shows good cause for the delay. 5 C.F.R. §§ 1201.22(c), 1201.56(b)(2)(i)(B). 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. See Alonzo v. Department of the Air Force, 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of his excuse and
his showing of due 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 unavoidable casualty or
misfortune which similarly shows a causal relationship to his inability to timely
file his petition. See Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Under the circumstances of this case, we find that the appellant’s lateness
should be excused. The appellant, who is proceeding pro se, has asserted that he
attempted to file his initial appeal by fax on May 6, 2022, 3 days before the filing
deadline expired, which seems to be corroborated by the fax transmission sheet
bearing that date. PFR File, Tab 1 at 2, 4. The appellant has asserted that he
reasonably believed that the regional office received the fax because the
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transmission report noted a successful delivery. Id. He asserts that he did not
learn until some later time that his fax transmissions to the regional office were
“cut off.” IAF, Tab 9 at 3. Under similar circumstances, the Board has found
that good cause exists when an appellant reasonably believed that he filed his
appeal in a timely way. See Salazar v. Department of the Army, 115 M.S.P.R.
296, ¶¶ 6-8 (2010) (excusing a filing delay when the appellant alleged that he
attempted to electronically file his petition for review on time and the e -appeal
system showed that the appellant had, in fact, accessed the system prior to the
date that his petition was due; it was possible to exit the system without receiving
a clear warning that he had not yet filed his pleading; and once he became aware
that his petition had not been filed, the appellant submitted a petition for review
that included an explanation of his untimeliness); Lamb v. Office of Personnel
Management, 110 M.S.P.R. 415, ¶ 9 (2009) (excusing the untimely filing of an
initial appeal when the appellant reasonably believed he filed timely by
completing all questions on the online appeal form and exited the website without
receiving a clear warning that his appeal was not filed). The agency has not
shown that it would be prejudiced by the filing delay.
For these reasons, we find good cause to waive the filing deadline and we
vacate the initial decision dismissing the appeal as untimely filed without good
cause. We note that the appellant’s filings indicate that he may not be
challenging the merits of his removal for medical inability and, instead, he may
be seeking to address his alleged entitlement to severance pay. IAF, Tab 1 at 6;
PFR File, Tab 7 at 3. An agency’s denial of severance pay is not within the
Board’s jurisdiction. See Ward v. U.S. Consumer Product Safety Commission,
8 M.S.P.R. 603, 603-04 (1981). On remand, the administrative judge shall clarify
the scope of the issues and, if appropriate, he shall issue a jurisdictional order
explaining the methods by which the appellant may establish jurisdiction over the
issues in this appeal.
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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.