NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3235
LAPAUL NEWELL,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: February 6, 2006
___________________________
Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.
PER CURIAM.
DECISION
LaPaul Newell petitions for review of a decision of the Merit Systems Protection
Board, Docket No. DC-0752-04-0559-I-1, dismissing his appeal as untimely. Because
the Board erred in not granting Mr. Newell’s request for a hearing on the issue of the
timeliness of his appeal, we reverse and remand.
BACKGROUND
The United States Postal Service removed Mr. Newell from his position as a
Materials Handling Equipment Operator effective February 27, 2004, based on a charge
of unsatisfactory attendance. The agency’s letter of decision, dated February 23, 2004,
informed Mr. Newell that he had a right to appeal the removal “within thirty (30) calendar
days from the effective date of this decision.” In fact, under the Board’s regulations, Mr.
Newell’s appeal was due either 30 days after the effective date of the decision (which
would be March 29, 2004) or 30 days after his receipt of the agency’s decision,
whichever was later. 5 C.F.R. § 1201.22(b)(1). Mr. Newell’s appeal was filed June 1,
2004 (the postmark date).
On June 10, 2004, the Board issued an order directing Mr. Newell “to file
evidence and argument showing that his appeal was timely filed or that good cause
existed for the delay.” The order explained that a petitioner could establish that an
untimely filing was the result of mental or physical illness by (1) identifying the time
period he suffered from the illness; (2) submitting corroborating evidence showing he
suffered from the alleged illness; and (3) explaining how the illness prevented him from
timely filing his appeal or requesting an extension of time.
Mr. Newell submitted three documents in response to the order: (1) a letter dated
March 9, 2004, from Manu Singh, a psychology intern/treatment coordinator with the
Department of Veterans Affairs; (2) a letter dated May 25, 2004, from Rose M.
Washington, a case manager at the Maryland Center for Veterans Education &
Training, Inc. (MCVET); and (3) Mr. Newell’s own June 1, 2004, letter to the Board. The
Singh letter stated that Mr. Newell had been enrolled in an Addiction Day Treatment
Program from February 17, 2004, to March 19, 2004. The Washington letter explained
that MCVET assists homeless veterans in returning to the work force and stated that
Mr. Newell had been a student/resident in that program since his discharge from the
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Veterans Administration Medical Center on January 20, 2004. In his June 1, 2004,
letter, Mr. Newell stated that he had experienced major depression during November
2003 and had subsequently received psychological treatment and entered the MCVET
program. Mr. Newell also explained that the first 60 days of the MCVET program were
“geared at re-establishing structure into an individual’s life” and thus outside contact had
been “virtually non-existent.” In his response to the administrative judge’s June 10,
2004, order, Mr. Newell requested a hearing on the issue of timeliness.
The administrative judge who was assigned to the case reviewed the submitted
documents and concluded that Mr. Newell failed to “show good cause for his failing to
timely file his appeal or requesting an extension of time to file.” The administrative
judge explained that Mr. Newell did not offer any “persuasive explanation of what
prevented him, after the agency’s . . . letter notified him of his February 27, 2004
removal, from acting on his appeal until June 1, 2004.” The administrative judge stated
that Mr. Newell did not claim he was hospitalized during that period of time or was
receiving medical treatment that prevented him from timely filing his appeal or
requesting an extension of the time for filing. The administrative judge further stated
that Mr. Newell’s participation in the MCVET program did not constitute circumstances
beyond his control that prevented him from timely filing his appeal. After concluding that
Mr. Newell had failed to demonstrate due diligence or ordinary prudence in meeting the
time limit for filing his appeal, the administrative judge dismissed the appeal as untimely.
In his subsequent petition for review to the full Board, Mr. Newell asserted that
“the presumption that I received the notification of my appeal rights to the Board is
unfounded.” He claimed that he did not receive any correspondence regarding his
05-3235 3
removal until May 21, 2004, and in support of that claim he submitted a letter of that
date from a union representative to Mr. Newell’s case manager at MCVET. In essence,
Mr. Newell argued to the Board that the Postal Service “chose to initiate termination
procedures during [his] initial phase of treatment” at MCVET and thus left him unaware
of his removal until a union representative contacted him on May 21, 2004. The Board,
however, denied the petition for review.
DISCUSSION
The administrative judge viewed the timeliness issue in this case as involving
only the question whether Mr. Newell had shown good cause for the untimely filing of
his appeal. In fact, the record in this case makes clear that there is an important
preliminary question to which the administrative judge did not advert; namely, whether
Mr. Newell’s appeal was untimely at all.
As noted, Mr. Newell’s appeal was due for filing either 30 days after the effective
date of the agency’s action or 30 days after Mr. Newell received the agency’s decision,
whichever was later. Mr. Newell stated in his petition for review to the full Board that he
did not receive notice of that decision until May 21, 2004, and that his appeal was
therefore not untimely. While he did not expressly state in his filings before the
administrative judge that he did not timely receive notice of his removal, he did
represent that he was homeless and that he had been enrolled in the MCVET program
since early 2004 to “regain a competent mental state” and to “continue my progress.” In
the program, he asserted, “outside contact is virtually non-existent.” He further stated
that at the time of his appeal, he resided at MCVET facility. In addition, Mr. Newell
submitted documentation supporting his assertion that from January 2004 through late
05-3235 4
May 2004 he had been a student/resident in the program, which was designed to assist
homeless veterans to maintain long term sobriety and return to the work force.
To be sure, in his response to the administrative judge’s June 10, 2004, order Mr.
Newell did not state explicitly that he did not receive timely notification of his removal.
Nonetheless, we think the suggestion of lack of notification was implicit in his response.
He stated that he was homeless as of January 2004, that he had entered a program in
which “outside contact is virtually non-existent,” and that he was continuing to reside at
the program’s facility at the time he submitted his response. Moreover, the evidence he
submitted included a letter from a representative of the MCVET program who
corroborated his account and indicated that Mr. Newell was not aware of whether he
was still employed by the Postal Service.
For its part, the Postal Service did not offer any evidence that Mr. Newell
received the notice of removal on or about the date that it was issued. The agency
submitted a copy of the letter of decision, but no evidence of receipt, although the
record contains proof of receipt for other documents that were sent to Mr. Newell’s
previous address. In fact, the only indication that the notice was delivered to Mr. Newell
is that it is addressed to him at his previous address. Even then, however, the address
listed on the notice of decision was apparently incorrect, as the address on the notice is
“603 Darrington St., N.E.,” rather than “603 Darrington St., S.E.,” which is the address
listed on other correspondence in the record as to which receipt was proved.
Moreover, while the administrative judge’s June 10, 2004, order correctly stated
the general rule that an appeal must be filed within 30 days of the effective date of the
action challenged or within 30 days of the date of receipt of the agency’s decision,
05-3235 5
whichever is later, it did not state that Mr. Newell could establish that the appeal was not
untimely by providing evidence that he did not receive notice of the agency’s decision
until a time less than 30 days before the appeal was filed. In fact, despite the correct
general statement of the timeliness requirements, the notice then stated that “[t]his
appeal, to have been timely filed, must have been filed no later than March 29, 2004,”
which is inaccurate, since that statement assumes timely receipt of notice of the
agency’s decision. A party in Mr. Newell’s position could well assume from the latter
statement that the issue of timeliness was foreclosed and that the only avenue open to
him was to argue that there was good cause for the untimeliness of his appeal.
Under these circumstances, and in light of Mr. Newell’s pro se status before the
Board, we believe that Mr. Newell’s response to the administrative judge’s June 10,
2004, order was sufficient to satisfy his burden of “establish[ing] a factual dispute as to
whether he timely filed his appeal,” which entitles him to the hearing on timeliness that
he requested. Meyer v. U.S. Postal Serv., 79 M.S.P.R. 667, 673 (1998); see also Lewis
v. Envtl. Prot. Agency, 82 M.S.P.R. 269, 271-72 (1999); Hamilton v. U.S. Postal Serv.,
79 M.S.P.R. 354, 356-57 (1998). Accordingly, we reverse the Board’s decision and
remand the case to the Board for a hearing on the issue of the timeliness. If necessary,
the Board should also address the question whether there was good cause for any
delay in filing, because the evidence pertaining to timeliness may affect the Board’s
assessment of the good cause issue.
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