Daniel K Hammer v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL K. HAMMER, JR., DOCKET NUMBER
Appellant, CH-0752-19-0373-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 16, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Hannah C. Brothers , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained the agency action removing him from the Federal service. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was employed by the agency as a Supervisor, Distribution
Operations, in Madison, Wisconsin. Initial Appeal File (IAF), Tab 4 at 209. On
April 25, 2019, the agency removed the appellant based on the charge of absent
without official leave/failure to follow proper leave requesting procedures. Id.
at 46-52. The appellant timely filed an appeal with the Board, challenging the
removal action and raising an affirmative defense of harmful procedural error.
IAF, Tabs 1, 17, Tab 21 at 5. On March 10, 2020, after holding the requested
hearing, IAF, Tab 1 at 2, Tab 27, the administrative judge issued an initial
decision, finding that the agency proved its charge, that the penalty of removal
promoted the efficiency of the service and was reasonable, and that the appellant
failed to establish his affirmative defense, IAF, Tab 29, Initial Decision (ID)
at 5-18. Accordingly, he affirmed the removal action. ID at 18. The
administrative judge informed the appellant that the initial decision would
become final on April 14, 2020, unless a petition for review was filed by that
date. ID at 18.
On June 5, 2020, the appellant filed a petition for review again challenging
the penalty of removal, and the agency filed a response. Petition for Review
(PFR) File, Tab 1 at 5, Tab 4. 2 In an acknowledgment order, the Office of the
Clerk of the Board informed the appellant that his petition for review was
untimely filed because it was not postmarked or received by the Board on or
before April 14, 2020. PFR File, Tab 2 at 1. It explained that the Board’s
regulations require that a petition for review that appears to be untimely filed be
accompanied by a motion to accept the filing as timely or to waive the time limit
for good cause. Id. at 1-2. It further provided the appellant with information on
how to file such a motion and provided a blank motion form for him to complete.
2
The Clerk of the Board recognized that, although the appellant actually filed an initial
appeal form with the Board, he was challenging the March 10, 2020 initial decision.
PFR File, Tab 2 at 1. Thus, the Board has considered the appellant’s pleading to be a
petition for review. Id.3
Id. at 2, 7-8. The appellant did not submit any such motion, nor did he respond to
the Clerk of the Board’s statement of an untimely filing. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on
March 10, 2020. ID at 1. Thus, as the administrative judge correctly informed
the appellant, he was required to file any petition for review no later than
April 14, 2020. ID at 18. The appellant’s petition for review of the initial
decision was filed on June 5, 2020. PFR File, Tab 1. As such, we find that the
petition for review is untimely filed by 52 days.
The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause by showing that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo, 120 M.S.P.R. 694, ¶ 4; 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
3
After the issuance of the Board’s acknowledgment order, one of the appellant’s two
representatives filed a motion to withdraw; this pleading did not address the timeliness
of the appellant’s petition for review. PFR File, Tab 3.
4
to timely file his petition. Palermo, 120 M.S.P.R. 694, ¶ 4; 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).
Here, the appellant appears to be represented by counsel, 4 and the initial
decision clearly informed him of the 35-day deadline of filing a petition for
review. IAF, Tab 1 at 2, Tab 6; ID at 18. Moreover, the Board has considered a
1-month delay—a time period shorter than the 52 days at issue here—to be
significant. See, e.g., Crook v. U.S. Postal Service, 108 M.S.P.R. 553, ¶ 6 (2008),
aff’d, 301 F. App’x 982 (Fed. Cir. 2008). Finally, the appellant has not presented
any 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 Palermo, 120 M.S.P.R. 694, ¶ 4.
On review, the appellant asserts that, throughout the appeal process, he has
not been receiving emails or regular mail updating him of the status of his appeal
in a timely manner. PFR File, Tab 1 at 5. However, at the time of the
adjudication of the initial appeal, the appellant had elected to register as an
e-filer, IAF, Tab 12 at 2, and the Board’s regulations provide that e-filers are
responsible for monitoring case activity at e-Appeal to ensure that they have
received all case-related documents, see 5 C.F.R. § 1201.14(j)(3) (2019); see also
Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009) (stating
that the Board’s regulations require registered e-filers to monitor their case
activity at e-Appeal). Although the appellant claims that he “twice missed
meetings” with the administrative judge because he was “not informed in a timely
4
The appellant had two representatives below, and, as indicated above, one of the
representatives withdrew on petition for review. PFR File, Tab 3. Although the
appellant appears to have filed the petition for review on his own, there is nothing in the
record showing that his second representative, an attorney, has withdrawn from the
case. IAF, Tab 6. Even if the appellant were acting entirely pro se, the other factors,
including the length of the delay and the lack of a showing of due diligence, would not
support a finding of good cause.
5
manner via this portal,” the appellant does not indicate on review that he
attempted to contact the Board for assistance with e-Appeal. PFR File, Tab 1
at 5. To the extent the appellant is arguing that his representatives failed to
timely notify him of Board filings and the time limit for filing a petition for
review, the Board has consistently held that, with limited exception not applicable
here, an appellant is responsible for the action or inaction of his chosen
representative. See Smith v. U.S. Postal Service, 111 M.S.P.R. 341, ¶ 9 (2009);
Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). As such, we find
that the appellant has not established a reasonable excuse for his delay in filing,
nor has he established that he acted with due diligence or ordinary prudence in
filing his untimely petition for review under the circumstances of this case. See
Palermo, 120 M.S.P.R. 694, ¶ 4.
Accordingly, we find that the appellant has failed to establish good cause
for his untimely filing, and we dismiss his petition for review as untimely filed
without good cause shown. See, e.g., Via v. Office of Personnel Management,
114 M.S.P.R. 632, ¶ 7 (2010) (dismissing a petition for review as untimely filed
without good cause shown for the delay in filing). This is the final decision of
the Merit Systems Protection Board regarding the timeliness of the petition for
review. The initial decision remains the final decision regarding the merits of
this appeal.
NOTICE OF APPEAL RIGHTS 5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
7
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
8
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 6 The court of appeals must receive your petition for
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.