Isom Harris v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ISOM W. HARRIS, IV, DOCKET NUMBER
Appellant, SF-844E-18-0486-I-1
v.
OFFICE OF PERSONNEL DATE: March 21, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Melinda A. Harris , Lancaster, California, for the appellant.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed. Generally, we grant petitions such as this
one only in the following circumstances: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
the facts of the case; the administrative 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. 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. Except as expressly
MODIFIED to address the appellant’s newly submitted evidence, we AFFIRM the
initial decision.
BACKGROUND
On March 15, 2018, the Office of Personnel Management (OPM) issued a
reconsideration decision denying the appellant’s application for disability
retirement based on his claimed disability of Posttraumatic Stress Disorder.
Initial Appeal File (IAF), Tab 11 at 4-6. In its decision letter, OPM notified the
appellant that if he wished to exercise his right to appeal to the Board, his appeal
must be filed within 30 days after the date of the decision, or 30 days after receipt
of the decision. Id. at 6. The letter was addressed to the appellant’s post office
box (PO Box) in Lakewood, California, and sorted for delivery at that location on
March 19, 2018. Id. at 4; IAF, Tab 4 at 9-10.
Thirty-seven days later, on April 25, 2018, the appellant filed the instant
appeal. IAF, Tab 1. He identified his address as a street address in Lancaster,
California. Id. at 1. In her acknowledgment order, the administrative judge
notified the appellant that there was a question as to whether his appeal was
timely filed. IAF, Tab 2 at 2. She informed the appellant of the relevant
deadlines and directed him to submit evidence and argument showing that his
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appeal was timely filed or that good cause existed for the delay. Id. at 2-5. OPM
then moved to dismiss the appeal. IAF, Tab 4.
In his response to OPM’s motion, the appellant explained that OPM had
sent the letter by certified mail to his old address, when his current address was
already on record with the “agency”—by which he apparently meant the
U.S. Postal Service (USPS), his employer. 2 Id. at 3. According to the appellant,
USPS had improperly delivered the item without obtaining his signature and
returning the PS Form 3811 (Domestic Return Receipt) to OPM. Id. The
appellant further alleged that OPM’s letter, with the unsigned PS Form 3811 still
attached, was “left in [his] mailbox only a few days before the appeal was filed.”
Id. The appellant’s attempt to submit a copy of the PS Form 3811 was
unsuccessful, although a hard copy was eventually entered into the record. Id.
at 4-5; IAF, Tab 18 at 2.
The administrative judge then issued a second order on timeliness. IAF,
Tab 7. In the order, she noted that it was unclear from the record when OPM was
notified of the appellant’s new address or that he was no longer receiving mail at
the PO Box in Lakewood. Id. at 1. She also noted that it was unclear on what
date the appellant claimed to have received the letter or whether the “mailbox” he
was referring to was the PO Box in Lakewood or his current address in Lancaster.
Id. The appellant was provided another opportunity to file evidence and
argument showing by preponderant evidence that his appeal was timely filed.
IAF, Tab 7 at 2.
In his response, the appellant stated that he maintained the PO Box in
Lakewood through July 2017, but did not renew it thereafter. IAF, Tab 8 at 3.
He stated that in August 2017, his wife submitted a change of address to have
their mail delivered to the Lancaster address. Id. He submitted a copy of a USPS
form recording the change of address request, which bears his wife’s name and
2
There appears to have been miscommunication between the appellant and the
administrative judge as to whether the term “agency” refers to USPS or OPM. When
possible, we will refer to USPS and OPM by name.
4
indicates the address was changed from a street address in Long Beach,
California. IAF, Tab 18 at 4. The appellant further stated that OPM’s letter had
been delivered to a cluster box housing locked mailbox doors for multiple
addresses, but he did not indicate on what date and in which city the delivery
occurred. IAF, Tab 8 at 3. He again stated that USPS had improperly failed to
obtain his signature and return the PS Form 3811 to OPM. Id.The administrative judge issued an initial decision dismissing the appeal as
untimely filed. IAF, Tab 19, Initial Decision (ID). She first found that April 19,
2018, should be deemed the date of receipt of OPM’s reconsideration decision,
and that the appeal was therefore late by 7 days. ID at 3-4. She further found
that the appellant had not shown good cause for the filing delay. ID at 6.
On review, the appellant submits an internal USPS record indicating that he
completed a change of address request from the PO Box in Lakewood to his
current address in Lancaster, effective July 29, 2017. Petition for Review (PFR)
File, Tab 1 at 3. He explains that he did not submit the document below because
he “needed time” to get it. Id. at 2. According to the appellant, “[t]he agency”—
it is unclear to which agency the appellant is referring—“was notified after this
action Change of Address was submitted.” Id.In its response, OPM contends the appellant never informed OPM of any
address change. PFR File, Tab 3 at 5. OPM further notes that the appellant
received and requested reconsideration of OPM’s August 4, 2017 initial decision,
which was addressed to the PO Box in Lakewood. 3 Id.; see IAF, Tab 11 at 41-45.
OPM further argues that the appellant failed to show that the newly submitted
document was previously unavailable, or that the administrative judge erred in
3
OPM also states that the appellant provided a copy of his December 31, 2017 removal
letter from USPS, which was also addressed to the Lakewood PO Box to which OPM
issued its initial and reconsideration decisions. PFR File, Tab 3 at 5. While we are
unable to locate a December 31, 2017 removal letter, the record does contain a
December 5, 2017 notice of proposed removal, addressed to the PO Box in Lakewood,
which the appellant provided OPM in support of his disability retirement application.
IAF, Tab 11 at 9-15; see id. It is unclear from the record whether mail was the
exclusive means of service for the proposal notice.
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her findings and conclusions. PFR File, Tab 3 at 5-6. In his reply, the appellant
states that he did not previously have possession of the internal USPS document,
and that he was able to obtain it only after making repeated attempts to schedule
an appointment with the Lakewood post office, which is a 3-hour drive away from
his current address in Lancaster. PFR File, Tab 4 at 3. He again asserts that
USPS mishandled the reconsideration letter, and argues that OPM denied his
request for disability retirement based on faulty information. Id.ANALYSIS
The appellant bears the burden of proving the timeliness of his appeal by a
preponderance of the evidence. 4 5 C.F.R. § 1201.57(c)(2). With exceptions not
applicable here, the Board’s regulation at 5 C.F.R. § 1201.22(b) requires that an
appeal must be filed with the Board no later than 30 days after the effective date,
if any, of the action being appealed, or 30 days after the date of receipt of the
agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b)(1). The same
regulation further provides:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and correspondence which is properly addressed and sent to
the appellant’s address via postal or commercial delivery is presumed
to have been duly delivered to the addresses.
5 C.F.R. § 1201.22(b)(3). It is evident from context that, here, “the agency”
means the agency that issued the decision on appeal, in this case OPM.
The record reflects that OPM issued its reconsideration decision on
March 15, 2018, and sent it by certified mail to the appellant’s PO Box in
Lakewood. IAF, Tab 11 at 4, Tab 4 at 9-10. In light of the appellant’s newly
submitted evidence, it appears that he had previously informed USPS, in its
capacity as mail deliverer, of his change of address from the PO Box in
4
The Board’s regulations define a preponderance of the evidence as that degree of
relevant evidence that a reasonable person, considering the record as a whole, would
accept as sufficient to find that a contested fact is more likely to be true than untrue.
5 C.F.R. § 1201.4(q).
6
Lakewood to his current address in Lancaster, effective July 29, 2017. PFR File,
Tab 1. Accordingly, we begin with a presumption that OPM’s letter, which was
sent and addressed to the appellant’s former address in Lakewood, was duly
forwarded and delivered to his address in Lancaster.
Section 1201.22(b)(3) further provides that the presumption of delivery
may be overcome under the circumstances of a particular case, although an
appellant may not avoid service of a properly addressed and mailed decision by
intentional or negligent conduct which frustrates actual service. Even though the
appellant did request that USPS forward his mail from the PO Box in Lakewood
to his current address in Lancaster, he was nonetheless responsible for keeping
OPM informed of his current address, see id., and he did not meet that
responsibility. Under these circumstances, we find that any failure or delay in
actual service would be attributable, at least in part, to negligent conduct on the
part of the appellant.
In any case, even if circumstances were such that the presumption of
delivery might be defeated, the appellant has not shown that he actually received
OPM’s letter within 30 days before he filed his Board appeal on April 25, 2018.
Indeed, he has not clearly identified the alleged date of receipt. The appellant
indicated on his appeal form that the date of OPM’s decision was March 21,
2018, and it is possible that this was intended to represent the date he received the
decision. IAF, Tab 1 at 4. If so, however, his appeal was still late by 5 days.
Accordingly, we find the appellant failed to show by preponderant evidence that
his appeal was timely filed.
We also affirm the administrative judge’s finding that the appellant failed
to establish good cause for the untimely filing. To establish good cause for the
untimely filing of an appeal, a party 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
7
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) (Table).
While the precise length of the filing delay is somewhat unclear in this
case, the Board will not waive its timeliness requirements in the absence of a
showing of good cause, regardless of how minimal the delay. Melendez v.
Department of Homeland Security, 112 M.S.P.R. 51, ¶ 16 (2009). The appellant
makes a vague reference to his “VA appointments and treatment,” IAF, Tab 8
at 3, but he has not indicated when the appointments and treatment occurred or
explained how his medical issues would have prevented him from filing his Board
appeal during the 30-day filing period. Nor has he demonstrated any other
circumstances beyond his control that prevented him from timely filing his
appeal. We further note that OPM’s reconsideration decision placed the appellant
on clear notice of the deadline for filing a Board appeal, which weighs against a
finding of good cause. IAF, Tab 11 at 6; see Melendez, 112 M.S.P.R. 51, ¶ 14.
Notwithstanding the appellant’s pro se status, we conclude that he has not met his
burden of showing good cause for his untimely filing.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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
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.
8
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 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.
9
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.
(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
10
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
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
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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.
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.
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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.