Mateo v. Merit Systems Protection Board , 167 F. App'x 198 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3250
VICTOR M. MATEO,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
____________________
DECIDED: February 10, 2006
____________________
Before LOURIE, GAJARSA, and LINN, Circuit Judges.
PER CURIAM.
Victor M. Mateo petitions for review of the final decision of the Merit
Systems Protection Board (“Board”) dismissing his appeal of his removal as
untimely filed. Mateo v. U.S. Postal Service, No. AT-0752-04-0527-I-1 (M.S.P.B.
July 6, 2004). Because substantial evidence supports the Board’s conclusion
that the appeal was untimely, we affirm.
BACKGROUND
The United States Postal Service (the “Agency”) removed Mateo from his
position of Custodian, effective July 29, 2003, for allegedly making
misrepresentations on employment forms submitted to the Agency. On August
5, 2003, Mateo filed an Equal Employment Opportunity (“EEO”) complaint
concerning his removal from the Agency. On August 21, 2003, he appealed his
removal to the Board. Because Mateo had previously filed an EEO complaint to
the Agency, and 120 days had not elapsed since the filing of the complaint, his
appeal to the Board was dismissed without prejudice on December 1, 2003.
On December 10, 2003, the Agency issued a decision, finding that Mateo
had not been discriminated against on the basis of his race or age when he was
removed. The decision stated that Mateo could appeal the removal action within
30 calendar days from his receipt of the decision. Mateo then refiled his appeal
on April 15, 2004, 127 days after the Agency issued its decision. The Agency
filed a motion to dismiss the appeal as untimely because it was not filed within 30
days of December 15, 2003, the presumed date of receipt of the Agency’s
decision. Mateo submitted an affidavit stating that he had never received the
Agency’s decision in the mail, and that he first became aware of the decision
when his attorney contacted him on April 15, 2004. In a sworn statement, the
regional EEO Compliance and Appeals Manager testified that records
maintained in her office showed that the Agency’s decision was sent to Mateo at
his current address by first class mail on December 10, 2003, and that it was not
returned to her office.
The Administrative Judge (“AJ”) found that Mateo’s denial that he did not
receive the Agency’s decision in the mail was not credible. The AJ noted that
there was no evidence that other documents mailed to Mateo at his home
address were not received by him, and that Mateo’s spouse had previously
signed for certified mail at that address. The AJ further observed that Mateo did
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not offer any explanation as to why a document mailed to his address would not
have been received. The AJ therefore concluded that Mateo failed to overcome
the presumption that a letter is received within five days of mailing. Finding no
good cause for Mateo’s delay in filing of almost 100 days, the AJ dismissed the
appeal as untimely filed.
The Board denied Mateo’s petition for review, and the AJ’s decision
became the Board’s final decision. See 5 C.F.R. § 1201.113(b). Mateo timely
appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is
limited. We must affirm the Board’s decision unless it was “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)
(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
Before the Board, Mateo had the burden of establishing that his delay in filing the
appeal was excusable. Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.
Cir. 1992) (en banc). When determining whether an appellant has shown good
cause for an untimely filing, the Board may consider several factors such as the
length of the delay, whether there was notification of the time limit, the
reasonableness of the excuse for the delay, and the circumstances surrounding
the delay. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994).
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Whether the time limit for a filing deadline should be waived based upon a
showing of good cause is a matter within the Board's discretion, and “this court
will not substitute its own judgment for that of the Board.” Mendoza, 966 F.2d at
653.
On appeal, Mateo contends that he did not actually receive the decision
until April 15, 2004, and that that should be the date from which the 30-day filing
period starts. Mateo relies on Saddler v. Department of the Army, 68 F.3d 1357(Fed. Cir. 1995), Hamilton v. Merit Systems Protection Board, 79 F.3d 639 (Fed.
Cir. 1996), and Kumferman v. Department of Navy, 785 F.2d 286 (Fed. Cir.
1986), to support his petition that the Board acted arbitrarily and capriciously in
dismissing his complaint as untimely. Mateo argues that the only evidence that
he received notice of the decision was when his attorney informed him of the
decision on April 15, 2004, and that the Board should have deemed that to be the
date when he received the decision. According to Mateo, he should not have
been presumed to have received the decision five days after the mailing when no
one can show that he actually received the decision. Finally, Mateo contends
that he has shown good cause because the delay was not due to his negligence,
but rather due to circumstances beyond his control, such as the delayed receipt
of the decision and the failure of counsel to timely notify him of the decision.
The government responds that the Board did not err in dismissing the
appeal as untimely because Mateo failed to rebut the presumption that properly
stamped and addressed mail is received by the addressee in five days. The
sworn statement of an agency official established that presumption and Mateo’s
05-3250 4
sworn statement alone that he did not receive the decision was insufficient to
rebut that presumption. According to the government, there is no evidence that
Mateo inquired about the status of his case during the three months after he was
told by the Agency that its decision would issue. The government also contends
that Saddler and Hamilton are distinguishable from this case because they
involved agency decisions that were mailed to the wrong address and returned.
Finally, the government asserts that Mateo has not shown good cause to excuse
his delay in filing.
We conclude that there was substantial evidence to support the Board’s
decision to dismiss the appeal as untimely. Pursuant to 5 C.F.R. §
1201.154(b)(1), once an appellant has filed a discrimination complaint at an
agency, “an appeal must be filed within 30 days after the appellant receives the
agency resolution or final decision on the discrimination issue.” We have
previously determined that an addressee is presumed to have received properly
addressed and stamped mail in due course. Smith v. U.S. Postal Service, 789
F.2d 1540, 1542 n.2 (Fed. Cir. 1986). The affidavit of the agency official here
showed that the decision was mailed to Mateo’s current address by first class
mail and was not returned.
The Board also properly found that Mateo failed to rebut the presumption
that he received the decision in due course. Mateo’s testimony as to his denial of
receipt of the decision was found to be not credible, and the agency official
testified that the mailed decision was not returned. Furthermore, there was no
evidence that other documents sent to Mateo’s address were not received and
05-3250 5
there was evidence that Mateo’s spouse had signed for certified mail delivered at
that address. The Board’s decision therefore was supported by substantial
evidence.
Furthermore, Saddler, Hamilton, and Kumferman are not relevant to this
case. In Hamilton the appellant did not have the opportunity to present any
evidence to rebut the presumption of receipt. 79 F.3d at 639. In contrast, Mateo
had sufficient opportunity to present such rebuttal evidence. In Saddler and
Kumferman, the mailed agency decisions were returned as undeliverable. 68
F.3d at 1357; 785 F.2d at 286. That is not the situation here because there was
no evidence that the decision had been returned. Although Kumferman notes
that “proof of mailing” may be insufficient by itself to prove receipt, Kumferman
does not preclude a finding that, where there is proof of first class mailing to the
appellant at his current address coupled with proof that that mailing was not
returned, receipt may be presumed.
Finally, the Board did not err in finding that Mateo had not shown good
cause for the delay. Mateo has not provided any explanation for the delay
beyond his claim that he did not receive the decision. He has not thereby shown
that the Board’s decision was in error. Because substantial evidence supports
the Board’s decision that Mateo’s appeal was untimely filed, we affirm.
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