Page v. MSPB

Case: 20-1329 Document: 29 Page: 1 Filed: 11/06/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JEFFERY L. PAGE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2020-1329
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0714-20-0009-I-1.
______________________
Decided: November 6, 2020
______________________
JEFFERY L. PAGE, San Antonio, TX, pro se.
JEFFREY GAUGER, Office of General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH, TRISTAN L. LEAVITT.
______________________
Before REYNA, SCHALL, and WALLACH, Circuit Judges.
PER CURIAM.
Case: 20-1329 Document: 29 Page: 2 Filed: 11/06/2020
2 PAGE v. MSPB
Petitioner, Jeffery L. Page, a former medical technician
for the Department of Veterans Affairs, challenges the
Merit System Protection Board’s decision to dismiss his ap-
peal as untimely filed. We affirm.
BACKGROUND
Mr. Page served as a medical technician for the Depart-
ment of Veterans Affairs (“VA”) at the Audie L. Murphy
Memorial Veterans Hospital in San Antonio, Texas. See
S.A. 1–2. 1 During his employment, in July 2019, the VA
proposed removing Mr. Page for failure to follow supervi-
sory instructions and for absence without leave. S.A. 2.
One month later, Mr. Page was removed, effective August
28, 2019. Id.
The VA served its decision letter on Mr. Page via both
United Parcel Service (“UPS”) overnight delivery and
United States Postal Service (“USPS”) certified mail. S.A.
3. The decision letter informed Mr. Page that he could ap-
peal the VA’s decision to the Merit System Protection
Board (“MSPB” or “Board”) no later than 10 business days
from the date of his removal. S.A. 2.
On October 3, 2019, Mr. Page filed an appeal with the
MSPB’s Dallas Regional Office. S.A. 17–43. Soon after, the
administrative judge issued an order explaining that the
appeal appeared to be untimely and providing Mr. Page
with the opportunity to submit evidence and argument for
why his delayed filing should be excused. S.A. 47. The VA
was also afforded the opportunity to submit evidence on the
timeliness issue. Id. Both the VA and Mr. Page produced
a USPS tracking record indicating that the VA’s decision
letter was delivered by certified mail on September 19,
2019, which was within 10 business days of Mr. Page’s fil-
ing date. See S.A. 55, 67. However, the VA also produced
1 S.A. refers to the pages of the supplemental appen-
dix attached to the respondent’s brief.
Case: 20-1329 Document: 29 Page: 3 Filed: 11/06/2020
PAGE v. MSPB 3
a receipt from UPS showing that the decision letter was
delivered on August 23, 2019. S.A. 60, 64-66.
In December 2019, the administrative judge dismissed
Mr. Page’s appeal as untimely filed. S.A. 1–13. In her de-
cision, the administrative judge found that Mr. Page failed
to “refute tracking records submitted by the agency reflect-
ing the letter [] was delivered on August 23, 2019, by UPS
overnight mail.” S.A. 4. The administrative judge also con-
sidered whether the doctrine of equitable tolling might ap-
ply, but ultimately decided that it could not because Mr.
Page had alleged insufficient facts warranting its applica-
tion. S.A. 5. After the decision was rendered, Mr. Page did
not petition for review by the Board, and the administra-
tive judge’s initial decision became final on January 6,
2020.
Mr. Page now appeals the Board’s decision. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
At issue in this appeal is whether the administrative
judge correctly applied the statutory time limits in finding
that Mr. Page did not file his appeal within the time lim-
its. 2 This court will affirm a decision of the Board unless
the decision is “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
2 Mr. Page’s informal opening brief and memoran-
dum in lieu of oral argument, filed on October 22, 2020,
contain assertions relating to non-payment for certain
work and a recount of an incident that caused Mr. Page to
take sick leave without prior approval. See generally ECF
No. 27. It appears Mr. Page’s assertions pertain to issues
relating to the merits of Mr. Page’s removal. Because we
affirm the Board’s decision to dismiss Mr. Page’s appeal on
grounds that his appeal was untimely, we do not reach the
merits of Mr. Page’s removal in this decision.
Case: 20-1329 Document: 29 Page: 4 Filed: 11/06/2020
4 PAGE v. MSPB
without procedures required by law, rule or regulation hav-
ing been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
The administrative judge applied the correct statutory
time limits in analyzing the timeliness of Mr. Page’s ap-
peal. 38 U.S.C. § 714(c)(4)(B) (“An appeal . . . of a removal,
demotion, or suspension may only be made if such appeal
is made not later than 10 business days after the date of
such removal, demotion, or suspension.”) Further, the ad-
ministrative judge’s finding that Mr. Page’s filing fell out-
side of the statutorily prescribed time limits is supported
by substantial evidence. Namely, Mr. Page’s removal was
effective on August 28, 2019, S.A. 2, and he had until Sep-
tember 12, 2019 to file his appeal. But he failed to do so.
S.A. 3. The administrative judge found that Mr. Page’s Oc-
tober 3, 2019 filing was 15 business days late and that Mr.
Page had not refuted the VA’s evidence that the decision
letter was delivered by UPS on August 23, 2019. S.A. 3, 4.
The administrative judge also considered issues raised re-
lating to Mr. Page’s health and the fact that his niece as-
sisted him with errands, S.A. 4, but concluded Mr. Page did
not meet the threshold for equitable tolling. Id., see also
Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005)
(describing circumstances qualifying for equitable tolling
based on evidence of physical illness as where “the partic-
ular infirmity of the veteran prevented him from engaging
in rational thought or deliberate decision making or ren-
dered him incapable of handling [his] own affairs or unable
to function [in] society.” (quotation marks omitted)).
CONCLUSION
Because we find the Board’s decision to be in accord-
ance with law and based on substantial evidence, we affirm
the Board’s decision to dismiss Mr. Page’s appeal as un-
timely filed.
AFFIRMED