LaDonna Landgren v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LADONNA LANDGREN, DOCKET NUMBER
Appellant, DE-0752-15-0369-I-1
v.
DEPARTMENT OF THE ARMY, DATE: September 28, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Janice L. Jackson, Leavenworth, Kansas, for the appellant.
Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal as untimely filed. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2 The agency removed the appellant from the GS-7 position of Medical
Technician, effective March 18, 2015. Initial Appeal File (IAF), Tab 1. The
agency’s decision informed the appellant that, if she elected to file an appeal with
the Board, such appeal must be submitted no later than thirty (30) calendar days
following the effective date of the action. Id. The appellant filed her appeal by
regular mail on April 27, 2015. Id.¶3 The administrative judge found that to be timely, the appeal must have been
filed with the Board by April 18, 2015; thus, the appeal was filed 9 days late.
IAF, Tab 16, Initial Decision (ID) at 3. He ordered the appellant to file evidence
and argument showing that the appeal was timely filed or that good cause existed
for the delay in filing and ordered the agency to file any evidence that it had on
the timeliness issue. IAF, Tab 3.
¶4 Based on both parties’ submissions, the administrative judge found that the
U.S. Postal Service delivered a notice that required signature confirmation of
receipt of the agency’s decision letter at the appellant’s address on March 13,
2015, ID at 3-4, and the appellant failed to assert that any circumstance rendered
her unable to get to the post office for 2 weeks after she received the notice to
sign for it and pick it up, ID at 8. Thus, he found that the appellant avoided
service of a properly addressed and mailed decision for 2 weeks by intentional or
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negligent conduct that frustrated actual service, and the appellant failed to show
good cause for her untimely filing of her appeal. ID at 9.
¶5 In her petition for review, the appellant reiterates the assertion she made
below that she received the agency’s decision on March 27, 2015, when she
picked it up and signed for it at the post office. Petition for Review (PFR) File,
Tab 1. She notes that, after receipt of the appellant’s initial response to the
timeliness order and prior to receipt of the agency’s response, the administrative
judge found that the appeal was timely filed. Id. She contends that the
administrative judge erred in considering the agency’s submissions on the
timeliness issue, and that her appeal, filed on April 27, 2015, was thus timely. Id.¶6 Generally, an appeal of a removal action must be filed with the Board
within 30 days of the effective date of the action or within 30 days of receipt of
the agency’s final decision, whichever is later. See 5 C.F.R. § 1201.22. The
administrative judge issued the order on timeliness on May 11, 2015, noting that
the appeal appeared to be filed more than 30 days after the effective date of the
removal action, and affording the appellant the opportunity to show that her
appeal was timely filed or that good cause existed for any delay in filing. IAF,
Tab 3. He ordered the appellant to respond with 10 days of the order and allowed
the agency to file evidence on the timeliness issue within 20 days, or by May 31,
2015. Id. The appellant filed timely responses, declaring under penalty of
perjury that she had picked up the agency’s Notice of Decision to Remove sent by
priority mail on March 27, 2015. IAF, Tab 7.
¶7 On May 27, 2015, the administrative judge found that the appellant’s
declaration constituted preponderant evidence that she received the agency’s
removal decision on March 27, 2015, and filed her appeal within 30 days. IAF,
Tab 11. Thus he found that the appeal was timely. Id. Also on May 27, 2015,
the agency filed a response to the May 11, 2015 order on timeliness. IAF,
Tab 12. With its response, the agency submitted tracking data from the U.S.
Postal Service showing that it had left a notice of attempted delivery of the
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removal decision at the appellant’s residence on March 13, 2015. Id. at 10. The
agency also submitted an affidavit from an agency employee who stated that she
had prepared an envelope containing a copy of the removal decision and
addressed to the appellant to be sent by signature confirmation upon delivery, and
that the U.S. Postal Service left notice of attempted delivery at the appellant’s
address on March 13, 2015. Id. at 15-16. Because the agency’s response was
received by the administrative judge prior to the May 31, 2015 deadline for the
agency to respond to the order on timeliness, he properly considered it,
notwithstanding his premature finding that the appeal was timely.
¶8 Based on the agency’s submission, the administrative judge issued a
detailed order instructing the parties to further address the timeliness issue. IAF,
Tab 13. Both the appellant and the agency responded. IAF, Tabs 14-15.
Considering the entire record, we agree with the second decision of the
administrative judge and find that the U.S. Postal Service delivered the notice of
attempted delivery of the envelope containing the removal decision that required
signature confirmation on March 13, 2015, that the appellant is deemed to have
received the notice by March 14, 2015, and that she failed to show any
circumstances that rendered her unable to go to the post office to pick up the
removal notice until 2 weeks after she received the notice. We find that, under
these circumstances, the appellant avoided service of a properly addressed and
mailed decision by intentional or negligent conduct that frustrated actual service,
and that her appeal, filed more than 30 days after the March 18, 2015 effective
date of the agency action is properly dismissed as untimely filed. See 5 C.F.R.
§ 1201.22(b)(3). 2
2
As noted, generally, an appeal of a removal action must be filed with the Board within
30 days of the effective date of the action or within 30 days of receipt of the agency’s
final decision, whichever is later. See 5 C.F.R. § 1201.22. Here, the appellant’s appeal
was untimely filed by 9 days from the effective date of the action, and the
administrative judge properly noted that at one point in the initial decision. ID at 3.
However, in his ultimate finding regarding the timeliness of the appeal, the
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
administrative judge mistakenly calculated that the appellant’s appeal must be filed
within 30 days of the date of receipt of the notice of attempted delivery of the envelope
containing the removal decision, which predated the effective date of the action, and
found that the appeal was untimely by 14 days. ID at 8. The administrative judge’s
misstatement did not affect the appellant’s substantive rights, however, because she was
afforded the opportunity to show good cause for the untimely submission of her appeal
and did not do so. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127
(1981).
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If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.