UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

TINA R. BLAKE, Appellant,

v.
DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA

- 0752

- 16

- 0280

- I

- 1

DATE: September 23, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Curtis Mitchell, Jr. , Midwest City, Oklahoma, for the appellant.

Telin W. Ozier
, Esquire, Midwest, Oklahoma, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her 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 ba sed on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

judge’s rulings during either the course of the appeal or the initial decision were

not consistent with require d 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. 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, 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 . Except as MODIFIED by this Final Order, we AFFIRM the
initial decision. Specifically, we MODIFY the initial decision to correct the administrative judge’s finding that the appellant’s appeal was due on January 10, 2016. Because January 10, 2016 was a Sunday, the app eal was actually due

on January 11, 2016, the next day on which the Board was open for business. ¶2 By notice dated December 10, 2015 , and effective that same day, the agency removed the appellant from her GS

- 5 Secretary (Office Automation) position based on alleged misconduct. Initial A ppeal File (IAF), Tab 6 at 35

‐ 40 . After

a ttempting to file an appeal on January 19, 2016, which the Dallas Regional Office returned to her as defective, the app ellant filed an appeal on March 18, 2016. IAF, Tabs 1

- 2. The administrative judge issued an Order on Timeliness in
which she informed t he appellant that her appeal appeared to be untimely filed and directed her to file evidence and argument showing that her appeal was timely filed or that good cause existed for the delay in filing. IAF, Tab 4. After considering the parties’ responses, t he administrative judge found that the appeal was untimely filed and that the appellant failed to show good cause. IAF, Tab 16, Initial Decision (ID) at 4

- 7. She therefore dismissed the appeal. Id. at 1, 8. The appellant petitions for review of the ini tial decision. Petition for Review (PFR) File, Tab 1. ¶3 An appeal must be filed no later than 30 days after the effective date of the
adver se action being appealed, or 30 days after the date of receipt of the agency’s3

decision, whichever is later. 5 C.F.R. § 1201.22 (b)(1). The appellant’s removal
was effective December 10, 2015. IAF, Tab 6 at 35. Therefore, if the appellant received the notice of decision on or before its effective date, the deadline for filing her appeal was Janua ry 11 , 2016

. 2 The appellant contended that she did not receive a copy of the agency’s decision until the agency submitted it dur ing her state unemployment proceedings. IAF, Tab 9 at 2. In her appeal, she identified the date of receipt as February 17, 2016. IAF, Tab 2 at 3. ¶4 The agency submitted tracking data from the U.S. Postal Service showing
that it mailed the decision notic e via certified mail to the appellant’ s address of
record on December 10, 2015, and that the notice was rece ived and signed for

on December 11, 2015. IAF, Tab 14 at 5. T he appellant contend ed that she did

not receive this document and nei ther she nor anyone else at her residence signed
for it

. IAF, Tab 13 at 2 . However, the tracking data is corroborated by a contemporaneous email in which one agency military officer reported to another military officer that the appellant reported for duty on Decembe r 14, 2015, “even though she received the certified removal notice this weekend.” IAF, Tab 6 at 33

. ¶5 The administrative judge found , and we agree, that the agency’s evidence
that it mailed the notice on December 10 , 2015 , and the appellant received it on
December 11 , 2015 , outweighed the appellant’s contention that she did not receive it

. ID at 5

. The appellant reiterates on review her contention below that
she did not receive the decision notice, PFR File, Tab 1 at 3

- 4, but she identifies
no evidence o f record that the administrative judge failed to consider, and we discern no error in the administrative judge’s conclusion that the appellant
received the decision notice on December 11, 2015. Because the appellant
received the decision notice on Decembe r 11, the deadline for filing an appeal was January 11, 2016, not January 10, 2016, as the administrative judge

2 The thirtieth day after the effective date of the removal was Saturday, January 9, 2016, so the actual fili ng deadline would have been the next day on which the Board was open for business, or Monday, January 11, 2016. 5 C.F.R. § 1201.23

.4

mistakenly found, because January 10, 2016 , was a Sunday. 5 C.F.R. § 1201.23

. Thus, the appeal was ap proximately 2 months untimely filed. ¶6 To establish good cause for the untimely filing of an appeal, a party must
show that s 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 determi ne 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 s he is proceeding pro se, and whether s he has presented evidence of the existence of c ircumstances beyond h er control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly sh ows a causal relationship to her inability to timely file
her appeal

. 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). ¶7 The appellant’s only argument concerning good cause is that she did not receive the decision notice. Evidence that a document was sealed, properly addressed, and deposited in the U.S. Mail with postage prepaid creates a rebuttable presumption that the letter reached the addressee in due course of the
mails. Speker v. Office of Personnel Management
, 45 M.S.P.R. 380 , 384 (1990), aff’d
, 928 F.2d 410 (Fed. Cir. 1991). The agency’s evidence is certainly sufficient to trigger a rebuttable presumption of delivery and receipt. Lesser evidence is required to raise a presumption of delivery and receipt than is required to rebut a presumption of delivery and receipt. Blue v . U.S. Postal
Service , 65 M.S.P.R. 370 , 375 n.2 (1994) , aff’d
, 65 F.3d 188 (Fed. Cir. 19 95) (Table) . The appellant has offered no persuasive evidence to corroborate her
unsworn assertion that she did not receive the decision notice , and there is otherwise no corroborating evidence, such as evidence that the U.S. Postal Service returned the notice to the agency, that supports her claim. Dean v. Office of Personnel Managem ent , 93 M.S.P.R. 520 , ¶ 13 n.2 (2003) , aff’d
, 110 F. App’x 123 (Fed. Cir. 2004) ; Blue
, 65 M.S.P.R. at 375 . Therefore, we agree with the5

administrative judge that the appella nt failed to establish good cause for the untimely filing of her appeal. 3 ¶8 The appellant’s remaining arguments on review concern the merits of the
removal action and are not relevant to the timeliness of her appeal. Helmstetter v. Department of Homeland Security , 106 M.S.P.R. 101 , ¶ 11 (2007); Marasco v. U.S. Postal Service
, 66 M.S.P.R. 555 , 5 58 (1995). Th erefore, we have not considered them.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS The initial decision, as supplemented by this Final Order, constitutes the
Board ’ s final decision in this matter. 5 C.F.R. § 1201.113

. You have the right to request review of this final decision by the U .S. Court of Appeals for the Federal
Circuit. You must submit your request to the co urt at the following address: 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.

3 Because we find that the appellant received the decision notice on December 11, 2015 , and that the deadline for filing was January 11, 2016, even if her January 19, 2016 submissi on met the Board’s filing requirements, it would still be untimely filed witho ut a showing of good cause for the delay.6

Dec. 27, 2012). You may read this law as well as othe r 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.uscour ts.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 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 Merit Systems Protection Board neither endorses the services provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board