UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY L. FOSTER, DOCKET NUMBER
Appellant, DC-0752-14-1079-I-1
v.
SMITHSONIAN INSTITUTION, DATE: February 19, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL ∗
Raymond Scoggins, Washington, D.C., for the appellant.
Amy Koontz and Dania Palosky, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
∗
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
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or the erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The appellant filed an appeal on September 15, 2014, challenging the
agency’s decision to remove him from the position of Building Services Worker
effective July 29, 2014. Initial Appeal File (IAF), Tab 1. The agency responded
with a motion to dismiss the appeal as untimely filed. IAF, Tab 3. Because it
appeared that the appeal was untimely filed, the administrative judge issued a
show cause order to the appellant instructing him to file evidence and/or
argument showing that his appeal was timely filed or that good cause exists for
the filing delay. IAF, Tab 5. The appellant did not respond. Accordingly, the
administrative judge dismissed the appeal as untimely filed. IAF, Tab 6. The
appellant then filed a petition for review of the initial decision. See Petition for
Review (PFR) File, Tab 1.
¶3 The Board’s regulations provide that an appeal must be filed 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). The regulations further provide that, if a party does not submit an
appeal within the applicable time limit, it will be dismissed as untimely filed
unless a good reason for the delay is shown. Cranston v. U.S. Postal Service,
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106 M.S.P.R. 290, ¶ 8 (2007); 5 C.F.R. § 1201.22(c). To establish good cause for
an untimely 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 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).
¶4 Here, the record reflects that on July 28, 2014, an agency decision letter
was hand-delivered to the appellant removing him from his position for
misconduct, effective July 29, 2014. IAF, Tab 1, Tab 4 at 9-12. The decision
letter specifically advised the appellant that his appeal had to be filed within 30
calendar days of the effective date of the action. IAF, Tab 4 at 10-11. The
decision letter further advised the appellant that an appeal “can be filed by mail,
by facsimile, or by personal delivery during normal business hours to the Merit
Systems Protection Board, Washington Regional Office, 1901 S. Bell Street,
Suite 950, Alexandria, Virginia 22202.” Id. at 11. Thus, the agency’s decision
letter properly informed the appellant of his right to appeal to the Board, and it
specified the correct address as well as the fact that any appeal with the Board
had to be filed “within thirty (30) calendar days from the receipt of this letter,” or
by August 28, 2014. Id. The Board’s general rule is that the appellant’s failure
to follow explicit filing instructions does not constitute good cause for any
ensuing delay. Karker v. Office of Personnel Management, 80 M.S.P.R. 235, 238
(1998); Sanford v. Department of Defense, 61 M.S.P.R. 207, 209 (1994).
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¶5 The appellant’s appeal form, which was signed by both the appellant and
his representative, as well as the appellant’s separately typed narrative of his
appeal, are dated September 15, 2014, 22 days after the deadline for filing his
Board appeal had expired. IAF, Tab 1.
¶6 On review, the appellant appears to assert that he timely mailed his appeal
to the prior address of the Board’s Washington Regional Office, but that his
appeal was returned to him because the Postal Service’s forwarding service had
expired. PFR File, Tab 1. However, rather than submitting the actual envelope
or a photocopy of the envelope to support his claim that he had timely filed his
appeal but to the wrong address, the appellant submitted a photocopy of a label
showing the Washington Regional Office’s old address and a separate photocopy
of a label dated August 12, 2014, showing that the forwarding time for mailing to
the Washington Regional Office had expired. Yet, there is no evidence that these
labels were on the same envelope or on an envelope from the appellant to the
Washington Regional Office, and standing alone, neither of these labels shows
that the appellant timely mailed his appeal to the wrong address. See id.
¶7 Also, even if the August 12, 2014 post office date stamp on the forwarding
label was from the appellant’s envelope, as he alleges, he has made no showing as
to when he actually received the returned envelope from the Postal Service and
why he could not have refiled the appeal prior to the August 28, 2014 filing
deadline. In addition, the appellant has failed to provide any credible, unrebutted
evidence in the form of an affidavit or sworn statement that his appeal was
actually placed in the Postal Service mail stream before the filing deadline. See
Raphel v. Department of the Army, 50 M.S.P.R. 614, 618 (1991) (a party may
establish that his pleading was timely filed by presenting credible, unrebutted
evidence in the form of an affidavit or sworn statement that, despite the postmark
date, the pleading was actually placed in the Postal Service mail stream before the
filing deadline). Thus, the appellant’s submissions on review do not specifically
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address the timeliness issue, and therefore, they provide no basis for waivin g the
filing deadline. Id.
¶8 The appellant also seems to imply that he did not receive the administrative
judge’s show cause order due to a typographical error in the address on the
certificate of service. PFR File, Tab 1. Admittedly, the show cause order and the
agency’s motion to dismiss as untimely filed both reflect that the number of the
appellant’s home address was incorrectly listed as 503 instead of 5003. IAF,
Tabs 4-5. Nevertheless, the appellant has made no direct claim that he did not
receive the documents. PFR File, Tab 1. Nor has he asserted that his
representative did not receive either the agency’s motion to dismiss or the
administrative judge’s show cause order, and the certificate of service for both
documents included the correct address for the appellant’s representative. IAF,
Tabs 4-5. The Board has long held that the appellant is responsible for the errors
of his chosen representative in failing to timely file an appeal. Sofio v. Internal
Revenue Service, 7 M.S.P.R. 667, 670 (1981).
¶9 After considering the appellant’s timeliness arguments on review, along
with his submissions below, we find that he has shown no circumstances beyond
his control that prevented him from complying with the time limit or that
unavoidable casualty or misfortune prevented him from complying with the filing
time limit. Accordingly, the appellant has failed to establish good cause for the
untimely filing of his appeal and the administrative judge correctly dismissed the
appeal as untimely filed.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the
United States Court of Appeals for the Federal Circuit. You must submit your
request to the court at the following address:
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United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.