“[T]he [administrative judge] must . . . inform the appellant that he is entitled to . . . a [timeliness] hearing upon a showing of a factual dispute material to the issue of timeliness.”
How later courts described this case
- “[T]he [administrative judge] must . . . inform the appellant that he is entitled to . . . a [timeliness] hearing upon a showing of a factual dispute material to the issue of timeliness.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
YVES GELIN, DOCKET NUMBER
Appellant, NY-0752-23-0038-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: May 3, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Yves Gelin , Yonkers, New York, pro se.
Ariya McGrew , Esquire, New York, New York, 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 removal appeal as untimely filed without good cause shown for the
delay. For the reasons set forth herein, we GRANT the appellant’s petition for
review. We VACATE the initial decision and REMAND the matter to the New
York Field Office for a hearing on the timeliness issue.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
ANALYSIS
If an appellant can establish a factual dispute as to whether he timely filed
his appeal and he requested a hearing, he is entitled to a timeliness hearing.
Nelson v. U.S. Postal Service, 88 M.S.P.R. 331, ¶ 5 (2001). Here, the appellant
argued below that he first received the agency’s final agency decision (FAD)
when he contacted the agency and requested it on December 20, 2022, and denied
that he received it when the agency first sent it by email on September 7, 2022.
Initial Appeal File (IAF), Tab 10 at 11. He reasserts these arguments on review.
Petition for Review (PFR) File, Tab 1 at 1. The appellant also asserts that the
email address that the FAD was sent to differs from the address he provided to
the agency. PFR File, Tab 4 at 3; see IAF, Tab 12 at 4-5 (sworn affidavit from
the agency explaining why the email address identified on the certificate of
service for the FAD differs from the address to which the agency actually sent the
FAD). Finally, in support of his claim that he did not receive the FAD on
September 7, 2022, the appellant provided an email demonstrating that he
contacted the agency on December 16, 2022, and inquired about the status of his
FAD. IAF, Tab 10 at 3.
The appellant filed his Board appeal challenging his removal on
December 21, 2022. 2 The date that the appellant received the FAD determines
the date by which he was required to file his Board appeal challenging the FAD.
See Williams v. U.S. Postal Service, 115 M.S.P.R. 318, ¶ 7 (2010) (noting that an
employee who files a timely formal complaint of discrimination with his
employing agency regarding a matter that is within the Board’s jurisdiction may
also file an appeal with the Board, and that to be considered timely, the appeal
2
The administrative judge determined that the appellant’s Board appeal was filed on
January 6, 2023, but that finding was in error. IAF, Tab 14, Initial Decision at 1. The
envelope containing the appellant’s Board appeal is postmarked December 21, 2022,
and so that is the date his appeal is deemed filed. IAF, Tab 1 at 28; see 5 C.F.R.
§ 1201.4(l) (“The date of filing by mail is determined by the postmark date.”).
3
must be filed within 30 days after the employee receives the FAD); 5 C.F.R.
§ 1201.154(b)(1).
The administrative judge did not issue an order on timeliness and so the
appellant was not provided with specific notice of his burden to establish the
timeliness of his appeal. See Farooq v. Corporation for National and Community
Service, 109 M.S.P.R. 73, ¶ 12 (2008) (noting that before an appeal can be
dismissed on timeliness grounds, the appellant must receive notice of the specific
timeliness issue presented by the circumstances of his case); see also Schorr v.
Department of the Navy, 79 M.S.P.R. 594, ¶¶ 12-13 (1998) (stating that the
appellant “cannot be expected to fight a fog of generality” and that he must be put
on clear notice of the timeliness issue and given a full opportunity to litigate it)
(quoting Hamilton v. Merit Systems Protection Board, 75 F.3d 639, 646 (Fed. Cir.
1996)). Because the appellant has raised a factual dispute regarding when he first
received the FAD, and consequently, whether his Board appeal was timely filed
on December 21, 2022, he is entitled to a hearing on the timeliness issue. IAF,
Tab 5; Nelson, 88 M.S.P.R. 331, ¶ 5; see Stout v. Merit Systems Protection Board,
389 F.3d 1233, 1241 (Fed. Cir. 2004) (“[T]he [administrative judge] must . . .
inform the appellant that he is entitled to . . . a [timeliness] hearing upon a
showing of a factual dispute material to the issue of timeliness.”). Given these
circumstances, we remand the appeal for the administrative judge to conduct a
timeliness hearing.
4
ORDER
For the reasons discussed above, we remand this case to the New York
Field Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.