Charles N. Nordan v. Department of the Army ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES N. NORDAN, DOCKET NUMBER
Appellant, SF-0752-13-3410-I-1
v.
DEPARTMENT OF THE ARMY, DATE: August 18, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles N. Nordan, Midlothian, Virginia, pro se.
Geovanny Rojas and Harold G. Murray, Schofield Barracks, Hawaii, for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his removal 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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, and based on the following
points and authorities, 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).
BACKGROUND
¶2 Prior to his removal, the appellant worked as a GS-12 Plans Specialist
stationed at Fort Shafter, Hawaii. Initial Appeal File (IAF), Tab 7 at 67. On
June 20, 2012, the agency issued its decision to remove the appellant effective
July 2, 2012, for failure to meet time and attendance requirements. Id. at 56-57,
61-62, 67. The agency mailed the notice of removal and appeal rights via
certified and regular mail to the appellant’s address of record in Midlothian,
Virginia. Id. at 63-66.
¶3 Over a year later, on July 25, 2013, the appellant attempted to file an appeal
of his removal, which he refiled on August 13, 2013, after an initial rejection.
IAF, Tabs 1-2. The administrative judge notified the appellant of the timeliness
issue and ordered him to file evidence and/or argument demonstrating either that
his appeal was timely filed or that good cause existed for the filing delay. IAF,
Tab 9. The appellant averred that his filing delay was caused by his attempts to
reconcile his marriage and care for his son and because he did not receive the
removal notice until August 2013. IAF, Tab 10 at 3. The administrative judge
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dismissed the appeal without holding the requested hearing, concluding that:
(1) the appellant’s appeal was untimely filed; and (2) he failed to show good
cause for the untimely filing. IAF, Tab 12, Initial Decision (ID) at 5-8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 On review, the appellant does not challenge the administrative judge’s
determination on timeliness but rather argues the merits of his removal and
requests an attorney. 2 Petition for Review (PFR) File, Tab 1 at 3.
¶5 Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s action, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). Under the revised regulations, an appellant is responsible for
keeping the agency informed of his current home address for purposes of
receiving the agency’s decision, and correspondence that 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. 3 5 C.F.R. § 1201.22(b)(3). Further,
an appellant may be deemed to have received the agency’s decision if it was
received by a person of suitable age and discretion residing with the appellant.
Id. The presumption of constructive receipt, however, may be overcome under
the circumstances of a particular case. Id.2
The appellant’s arguments concerning the merits of his removal are irrelevant to the
timeliness of his appeal, the dispositive issue below, and will not be reached on review.
See Minor v. Department of the Air Force, 109 M.S.P.R. 692, ¶ 7 (2008). Moreover, no
statute or regulation requires the Board to appoint a representative for an appellant; it is
the appellant’s obligation to secure his own representation. Grassell v. Department of
Transportation, 40 M.S.P.R. 554, 564 (1989).
3
The Board amended 5 C.F.R. § 1201.22 effective November 13, 2012, adding a new
provision at § 1201.22(b)(3) concerning constructive receipt of agency decisions. The
administrative judge applied section 1201.22(b)(3) in his analysis because it was the
regulation in effect at the time the appellant filed his appeal. ID at 5, n.2 (citing
Braxton v. Department of Treasury, 119 M.S.P.R. 157, ¶ 6 n.2 (2013) (applying the
version of the Board’s regulation in effect at the time the appeal was filed)).
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¶6 In the instant case, the agency presented evidence, including a U.S. Postal
Service Track & Confirm report and a certified mail receipt signed by J.N. 4,
showing that the decision letter was delivered to the appellant’s address of record
on June 25, 2012. IAF, Tab 7 at 63-67. Although the appellant has alleged that
he did not receive the notice of removal until August 2013, IAF, Tab 10 at 3, he
has not provided any further explanation or evidence to support his claim that he
did not receive the decision letter when it was delivered to his address of record
on June 25, 2012, see IAF, Tabs 1, 8, 10; PFR File, Tab 1; see also ID at 5. Thus,
the appellant has failed to rebut the presumption of constructive receipt of the
removal notice where it was both duly delivered to his address of record and
signed for there by J.N. See ID at 5-6; IAF, Tab 7 at 63-66; see also 5 C.F.R.
§ 1201.22(b)(3).
¶7 We therefore agree with the administrative judge that the appellant received
the decision letter on June 25, 2012, and that the filing deadline for his appeal
was 30 days after the July 2, 2012, effective date of the removal, i.e., August 2,
2012. ID at 5-6. As noted by the administrative judge, application of the prior
version of the Board’s regulation would yield the same result regarding the
appellant’s constructive receipt of the removal notice on June 25, 2012. 5 ID at 5
n.2.
4
The administrative judge determined that J.N. was the appellant’s 17-year-old son. ID
at 6. Although it is unclear where the administrative judge obtained this information,
the appellant does not challenge this finding on review. See PFR File, Tab 1.
5
Prior to the November 2012 amendments, both the Board and our reviewing court
found constructive receipt so as to trigger the period for filing an appeal where
documents were received by relatives at the addresses designated by appellants. See
Crearer v. Department of Justice, 84 M.S.P.R. 434, ¶ 6 (1999) (the time limit for filing
an appeal began to run on the day after the agency’s notice was delivered to the
appellant’s address of record and received by his daughter); see also Anderson v.
Department of Transportation, 735 F.2d 537, 541 (Fed. Cir. 1984) (the employee had
constructive receipt of the agency’s notice of proposed removal when his mother signed
for it at the address he provided to the agency). Further, both the Board’s prior and
current regulations prescribe that, absent evidence to the contrary, a submission is
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¶8 The Board may waive its regulatory filing time limit for good cause shown.
5 C.F.R. § 1201.22(c). To establish good cause for the untimely filing of his
appeal, an appellant must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. 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. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996).
¶9 The appellant has averred that his filing delay was due to family issues,
including dealing with a divorce and caring for his son. IAF, Tabs 8, 10. General
personal difficulties, however, do not constitute good cause for waiving a filing
deadline. Crisp v. Department of Veterans Affairs, 73 M.S.P.R. 231, 234 (1997)
(good cause to excuse the appellant’s filing delay was not shown where the
appellant was going through divorce proceedings, involved in lawsuit concerning
an automobile accident, attending graduate school full-time, and seeking
employment to avoid incarceration). Further, the appellant’s 358-day filing delay
was significant; we have consistently denied a waiver of our filing deadline if
good cause for the delay is not shown, even where the delay is minimal and the
appellant is pro se. See Moorman, 68 M.S.P.R. at 64 (declining to excuse a 3-day
delay in filing an appeal where the appellant failed to establish good cause for the
delay); Schuringa v. Department of the Treasury, 106 M.S.P.R. 1, ¶¶ 9, 14, n.*
presumed to have been mailed 5 days (excluding days on which the Board is closed for
business) before its receipt. 5 C.F.R. § 1201.4(l).
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(2007) (declining to excuse a 4-day delay in filing an appeal where the pro se
appellant’s submissions did not support a finding that she was medically
prevented from timely filing her appeal or from requesting an extension of time);
Lockhart v. Office of Personnel Management, 94 M.S.P.R. 396, ¶¶ 7-8 (2003)
(declining to excuse a 5-day delay in filing a petition for review where the pro se
appellant failed to show good cause for the delay).
¶10 Accordingly, we find that the administrative judge correctly dismissed the
appellant’s appeal as untimely filed without a showing of good cause.
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.
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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.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.