Kristen Mowder v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KRISTEN L. MOWDER, DOCKET NUMBER
Appellant, PH-0752-17-0376-I-2
v.
UNITED STATES POSTAL SERVICE, DATE: March 26, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
William Simpson , Philadelphia, Pennsylvania, for the appellant.
David E. Mapp , Esquire, Philadelphia, Pennsylvania, 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
affirmed her removal. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 removed from her position as a Postmaster with the
agency for improper conduct. Mowder v. U.S. Postal Service, MSPB Docket
No. PH-0752-17-0376-I-1, Initial Appeal File (IAF), Tab 4 at 20-24. She timely
filed this appeal with the Board. IAF, Tab 1.
On July 6, 2018, the administrative judge issued an initial decision
affirming the appellant’s removal. Mowder v. U.S. Postal Service, MSPB Docket
No. PH-0752-17-0376-I-2, Appeal File (I-2 AF), Tab 19, Initial Decision (ID).
The initial decision explained that it would become final on August 10, 2018,
unless the appellant filed a petition for review by that date. ID at 24-25. The
initial decision informed the appellant how to file such a petition for review with
the Clerk of the Board. ID at 25.
On August 9, 2018, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) received a petition for review from the appellant. Mowder v.
U.S. Postal Service, MSPB Docket No. PH-0752-17-0376-L-1, Litigation File,
Tab 1 at 2. Notably, although the envelope containing the appellant’s petition
was addressed to the Federal Circuit, the petition itself was addressed to the Clerk
of the Board. Id. at 2, 33. The Federal Circuit docketed the appellant’s petition
on August 13, 2018. Id. at 1.
The appellant then filed a petition for review with the Board on
September 20, 2018, asserting, among other things, that she filed with the Federal
Circuit in error. Mowder v. U.S. Postal Service, MSPB Docket No. PH-0752-17-
0376-I-2, Petition for Review (PFR) File, Tab 1 at 1. In her motion requesting
that the Board accept her petition as timely or waive the time limit for good
cause, the appellant asserted that she received the initial decision via mail on
July 13, 2018, and stated that her nervousness and inexperience caused her to
misread the section of the initial decision pertaining to her appeal rights and thus
send her petition to the Federal Circuit rather than the Board. PFR File, Tab 4
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at 3. The agency has filed a response to both the petition for review and the
appellant’s motion on timeliness. PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision, or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The
date of filing by mail is determined by the postmark date. 5 C.F.R. § 1201.4(l).
Here, the appellant alleges that she received the initial decision on July 13,
2018, which is 7 days after the date of its issuance. PFR File, Tab 4 at 3. Thus,
she was required to file her petition for review with the Board by August 13,
2018. 2 The appellant’s petition for review is postmarked September 20, 2018.
PFR File, Tab 1. It is therefore 38 days late.
The Board will excuse the untimely filing of a petition for review only
upon a showing of good cause for the delay. 5 C.F.R. § 1201.114(g); see Via v.
Office of Personnel Management, 114 M.S.P.R. 632, ¶ 5 (2010). To determine
whether an appellant has shown good cause, the Board will consider the length of
the delay; the reasonableness of her excuse and her showing of due diligence;
whether she is proceeding pro se; and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to her inability to timely file her petition for review. Via,
114 M.S.P.R. 632, ¶ 5; 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).
Generally, when an initial decision clearly informs an appellant where to
file her Board petition for review and she misdirects her petition to the Federal
Circuit, good cause does not exist for her later untimely filing with the Board.
2
Thirty days following July 13, 2018, was Sunday, August 12, 2018. The deadline for
filing a petition for review was therefore the next workday. 5 C.F.R. § 1201.23.
4
Marino v. Office of Personnel Management, 96 M.S.P.R. 294, ¶ 8 (2004), aff’d,
122 F. App’x 480 (Fed. Cir. 2005); Colon v. U.S. Postal Service, 71 M.S.P.R.
514, 517 (1996). Here, as explained previously, the initial decision provided that
it would become final on August 10, 2018, unless a petition for review was filed
with the Clerk of the Board by that date. ID at 24-25. The initial decision clearly
set forth how the appellant could file a petition for review and the Clerk of the
Board’s address. ID at 25. The initial decision further informed the appellant
that the Board’s final decision—which would be issued by the Board at a later
date if the appellant timely filed a petition for review, or would be the initial
decision itself if she did not timely file a petition for review—could be appealed
to, inter alia, the Federal Circuit. ID at 28-31. Thus, the initial decision clearly
informed the appellant of the proper procedures for filing a petition for review
with the Board.
Although the appellant has handled her own filings on review and filed a
petition with the Federal Circuit before the initial decision became final, that
alone does not warrant a waiver of the filing deadline. See Evans v. Office of
Personnel Management, 85 M.S.P.R. 36, ¶ 9 (1999); Olson v. U.S. Postal Service,
66 M.S.P.R. 383, 387-88 (1995). Inexperience with legal matters and
unfamiliarity with Board procedures does not excuse a failure to follow direct and
explicit instructions. Olson, 66 M.S.P.R. at 387-88; see Alexander v. Department
of Veterans Affairs, 51 M.S.P.R. 368, 370 (1991) (finding that the appellant failed
to establish good cause for her untimely filed petition for review when her
confusion led her to file a petition with the Federal court system instead of with
the Board and her confusion was not caused by the initial decision).
The appellant’s delay in filing the petition for review—38 days—was not
minimal. See Colon, 71 M.S.P.R. at 519 (finding that a 27-day delay in filing a
petition for review was not a minimal delay). Moreover, the delay was not due to
circumstances beyond her control, but was instead due to her own failure to
follow instructions. PFR File, Tab 4 at 3. Under these circumstances, we find
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that the appellant has failed to show good cause for a waiver of the filing
deadline. See Olson, 66 M.S.P.R. at 387-88.
Accordingly, we dismiss the petition for review as untimely filed. 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 of the
Board regarding the appellant’s removal.
NOTICE OF APPEAL RIGHTS 3
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
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
3
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.
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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
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
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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
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
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(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.. The court of appeals must receive your
petition for 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.
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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.