John Chapman v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN WAYNE CHAPMAN, DOCKET NUMBER
Appellant, CH-0752-22-0269-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 11, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marisa L. Williams , Esquire, Englewood, Colorado, for the appellant.
Alexander R. Rivera , Esquire, Denver, Colorado, 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
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 The appellant filed the instant appeal challenging his removal. Initial
Appeal File (IAF), Tab 1. On May 22, 2023, the administrative judge issued an
initial decision affirming the appellant’s removal. IAF, Tab 67, Initial Decision
(ID). She found that the agency proved its charges and that the appellant failed to
prove his affirmative defenses of sex discrimination, due process violation,
harmful procedural error, laches, and retaliation for his prior Board appeal.
ID at 6-32. She also concluded that the penalty of removal was reasonable and
promoted the efficiency of the service. ID at 33-37. The initial decision
informed the appellant how to file a petition for review and explained that the
deadline for filing a petition for review was June 26, 2023. ID at 37.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. However, he did not file until June 29, 2023, three days after the
deadline for doing so. Id. The agency has filed a response requesting that the
petition for review be dismissed as untimely filed without good cause shown.
PFR File, Tab 3 at 4-8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 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. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§ 1201.114(g).
¶5 The party who submits an untimely petition for review has the burden of
establishing good cause for the untimely filing by showing that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
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Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good
cause, the Board will consider the length of the delay, the reasonableness of his
excuse and the party’s 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. Id.; see 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).
¶6 Here, the administrative judge issued the initial decision on May 22, 2023,
and served it on the appellant that same day. 2 ID at 1; IAF, Tab 68. Thus, the
appellant was required to file his petition for review no later than June 26, 2023.
ID at 37. As noted above, the appellant’s petition for review of the initial
decision was filed on June 29, 2023, three days after the deadline set forth in the
initial decision. 3 PFR File, Tab 1. Because the filing appeared untimely, the
Board’s e-Appeal system automatically generated questions concerning
timeliness, to which the appellant responded, “I am not late on this response. I
live in Missouri and i initially tried to submit my respone [sic] at 11:11pm on the
26th of June. It is currently 11:23 pm in Missouri and i need to submit this.”
Id. at 5.
2
On review, the appellant asserts that he received the initial decision on May 27, 2023.
PFR File, Tab 1 at 4. However, Board documents served electronically on e-filers are
deemed received on the date of electronic submission. 5 C.F.R. § 1201.14( l)(2) (2023).
When a statute or regulation “deems” something to be done or to have been done, the
event is considered to have occurred whether or not it actually did. Lima v. Department
of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Further, even if the appellant received
the initial decision on May 27, 2023, as he claimed, he would still be required to file his
petition for review by June 26, 2023. See 5 C.F.R. § 1201.114(e).
3
Pursuant to the Board’s regulations, all pleadings filed via e-Appeal are time stamped
with Eastern Time, but the timeliness of a pleading is determined based on the time
zone from which the pleading was submitted. See 5 C.F.R. § 1201.14(m) (2023). The
petition for review in this matter was stamped “2023-06-30 00:43:29” by e-Appeal. As
the appellant’s address of record at the time of filing was located in the Central Time
Zone, the pleading was filed on June 29, 2023, at 11:43 p.m. Central Time. PFR File,
Tab 1.
4
¶7 The Clerk of the Board issued an acknowledgment letter, instructing the
appellant that an untimely filed petition for review must be accompanied by a
motion to either accept the filing as timely and/or waive the time limit for good
cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)). The letter further
instructed the appellant that if he wished to file the aforementioned motion, he
must include a statement signed under penalty of perjury or an affidavit showing
that the petition was either timely filed or good cause existed for the
untimeliness. Id. at 1-2. It also included a form for the motion, sworn statement,
and affidavit and provided a deadline of July 15, 2023. Id. at 2, 7-8. Despite the
instructions contained in the acknowledgment letter, the appellant did not submit
a sworn statement, affidavit, or further explanation for the untimely filing.
¶8 We considered whether the appellant’s claim that he timely filed his petition
for review was accurate, PFR File, Tab 1 at 4, and the apparent delay resulted
from issues with the Board’s e-Appeal system. Under limited circumstances, the
Board will excuse delays in filing caused by difficulties encountered with the e-
Appeal system. E.g., Salazar v. Department of the Army, 115 M.S.P.R. 296, ¶¶ 6-
8 (2010) (excusing a filing delay when the appellant alleged that he attempted to
electronically file his petition for review on time and the e-Appeal system showed
that he had, in fact, accessed the system prior to the date that his petition was due,
and after he became aware that his petition had not been filed, the appellant
promptly contacted the Board and submitted a petition for review that included an
explanation of his untimeliness); Lamb v. Office of Personnel Management, 110
M.S.P.R. 415, ¶ 9 (2009) (finding good cause for the untimely filing of a petition
for review when the appellant reasonably believed he timely filed his appeal by
completing all questions on the appeal form and exited the website without
receiving a clear warning that his appeal was not filed). However, we find that
the appellant’s failure to timely file his submission is not excusable here.
¶9 The appellant has not shown any circumstances beyond his control, such as
unavoidable casualty or misfortune, which affected his ability to comply with the
5
time limits. To the extent the appellant contends that he was unable to comply
with the June 26, 2023 deadline, the Board notes that he did not submit a request
for an extension of time to file his petition for review nor did he file the
timeliness motion, as mentioned above, to explain his untimeliness. Further, to
the extent the appellant alleges that he experienced difficulty submitting his
petition via e-Appeal, there is no evidence in the record that he attempted to
pursue alternate means to timely file his petition. See 5 C.F.R. § 1201.14(f)
(2023) (“A party or representative who has registered as an e-filer may file a
pleading by non-electronic means, i.e., via postal mail, fax, or personal or
commercial delivery.”). Although he is proceeding pro se on review and his
3-day filing delay is minimal, under the circumstances of this case, we find that
the appellant has failed to establish good cause for his delay in filing his petition
for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to excuse a 7-day
delay); Schuringa v. Department of the Treasury, 106 M.S.P.R. 1, ¶¶ 4 n.*, 9, 14
(2007) (finding a 4-day delay minimal). Smith v. Department of the Army,
105 M.S.P.R. 433, ¶ 6 (2007) (declining to excuse the appellant’s 1 -day delay in
filing his petition for review when the appellant failed to explain the delay).
¶10 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 4
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
4
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
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.
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
7
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
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,
8
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. 5 The court of appeals must receive your petition for
5
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,
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.
132 Stat. 1510.
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.