                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

                                          05-3250

                                 VICTOR M. MATEO,

                                                    Petitioner,

                                            v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                                    Respondent.

                               ____________________

                             DECIDED: February 10, 2006
                               ____________________

Before LOURIE, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

      Victor M. Mateo petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) dismissing his appeal of his removal as

untimely filed. Mateo v. U.S. Postal Service, No. AT-0752-04-0527-I-1 (M.S.P.B.

July 6, 2004). Because substantial evidence supports the Board’s conclusion

that the appeal was untimely, we affirm.

                                   BACKGROUND

      The United States Postal Service (the “Agency”) removed Mateo from his

position   of   Custodian,    effective    July   29,   2003,     for   allegedly   making

misrepresentations on employment forms submitted to the Agency. On August

5, 2003, Mateo filed an Equal Employment Opportunity (“EEO”) complaint
concerning his removal from the Agency. On August 21, 2003, he appealed his

removal to the Board. Because Mateo had previously filed an EEO complaint to

the Agency, and 120 days had not elapsed since the filing of the complaint, his

appeal to the Board was dismissed without prejudice on December 1, 2003.

       On December 10, 2003, the Agency issued a decision, finding that Mateo

had not been discriminated against on the basis of his race or age when he was

removed. The decision stated that Mateo could appeal the removal action within

30 calendar days from his receipt of the decision. Mateo then refiled his appeal

on April 15, 2004, 127 days after the Agency issued its decision. The Agency

filed a motion to dismiss the appeal as untimely because it was not filed within 30

days of December 15, 2003, the presumed date of receipt of the Agency’s

decision. Mateo submitted an affidavit stating that he had never received the

Agency’s decision in the mail, and that he first became aware of the decision

when his attorney contacted him on April 15, 2004. In a sworn statement, the

regional EEO Compliance and Appeals Manager testified that records

maintained in her office showed that the Agency’s decision was sent to Mateo at

his current address by first class mail on December 10, 2003, and that it was not

returned to her office.

       The Administrative Judge (“AJ”) found that Mateo’s denial that he did not

receive the Agency’s decision in the mail was not credible. The AJ noted that

there was no evidence that other documents mailed to Mateo at his home

address were not received by him, and that Mateo’s spouse had previously

signed for certified mail at that address. The AJ further observed that Mateo did




05-3250                                 2
not offer any explanation as to why a document mailed to his address would not

have been received. The AJ therefore concluded that Mateo failed to overcome

the presumption that a letter is received within five days of mailing.   Finding no

good cause for Mateo’s delay in filing of almost 100 days, the AJ dismissed the

appeal as untimely filed.

      The Board denied Mateo’s petition for review, and the AJ’s decision

became the Board’s final decision. See 5 C.F.R. § 1201.113(b). Mateo timely

appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. §

1295(a)(9).

                                  DISCUSSION

      The scope of our review in an appeal from a decision of the Board is

limited. We must affirm the Board’s decision unless it was “(1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

obtained without procedures required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.”        5 U.S.C. § 7703(c)

(2000); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).

Before the Board, Mateo had the burden of establishing that his delay in filing the

appeal was excusable. Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.

Cir. 1992) (en banc). When determining whether an appellant has shown good

cause for an untimely filing, the Board may consider several factors such as the

length of the delay, whether there was notification of the time limit, the

reasonableness of the excuse for the delay, and the circumstances surrounding

the delay. Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994).




05-3250                                  3
Whether the time limit for a filing deadline should be waived based upon a

showing of good cause is a matter within the Board's discretion, and “this court

will not substitute its own judgment for that of the Board.” Mendoza, 966 F.2d at

653.

       On appeal, Mateo contends that he did not actually receive the decision

until April 15, 2004, and that that should be the date from which the 30-day filing

period starts. Mateo relies on Saddler v. Department of the Army, 68 F.3d 1357

(Fed. Cir. 1995), Hamilton v. Merit Systems Protection Board, 79 F.3d 639 (Fed.

Cir. 1996), and Kumferman v. Department of Navy, 785 F.2d 286 (Fed. Cir.

1986), to support his petition that the Board acted arbitrarily and capriciously in

dismissing his complaint as untimely. Mateo argues that the only evidence that

he received notice of the decision was when his attorney informed him of the

decision on April 15, 2004, and that the Board should have deemed that to be the

date when he received the decision. According to Mateo, he should not have

been presumed to have received the decision five days after the mailing when no

one can show that he actually received the decision. Finally, Mateo contends

that he has shown good cause because the delay was not due to his negligence,

but rather due to circumstances beyond his control, such as the delayed receipt

of the decision and the failure of counsel to timely notify him of the decision.

       The government responds that the Board did not err in dismissing the

appeal as untimely because Mateo failed to rebut the presumption that properly

stamped and addressed mail is received by the addressee in five days. The

sworn statement of an agency official established that presumption and Mateo’s




05-3250                                   4
sworn statement alone that he did not receive the decision was insufficient to

rebut that presumption. According to the government, there is no evidence that

Mateo inquired about the status of his case during the three months after he was

told by the Agency that its decision would issue. The government also contends

that Saddler and Hamilton are distinguishable from this case because they

involved agency decisions that were mailed to the wrong address and returned.

Finally, the government asserts that Mateo has not shown good cause to excuse

his delay in filing.

       We conclude that there was substantial evidence to support the Board’s

decision to dismiss the appeal as untimely.           Pursuant to 5 C.F.R. §

1201.154(b)(1), once an appellant has filed a discrimination complaint at an

agency, “an appeal must be filed within 30 days after the appellant receives the

agency resolution or final decision on the discrimination issue.”       We have

previously determined that an addressee is presumed to have received properly

addressed and stamped mail in due course. Smith v. U.S. Postal Service, 789

F.2d 1540, 1542 n.2 (Fed. Cir. 1986). The affidavit of the agency official here

showed that the decision was mailed to Mateo’s current address by first class

mail and was not returned.

       The Board also properly found that Mateo failed to rebut the presumption

that he received the decision in due course. Mateo’s testimony as to his denial of

receipt of the decision was found to be not credible, and the agency official

testified that the mailed decision was not returned. Furthermore, there was no

evidence that other documents sent to Mateo’s address were not received and




05-3250                                 5
there was evidence that Mateo’s spouse had signed for certified mail delivered at

that address.   The Board’s decision therefore was supported by substantial

evidence.

       Furthermore, Saddler, Hamilton, and Kumferman are not relevant to this

case. In Hamilton the appellant did not have the opportunity to present any

evidence to rebut the presumption of receipt. 79 F.3d at 639. In contrast, Mateo

had sufficient opportunity to present such rebuttal evidence.       In Saddler and

Kumferman, the mailed agency decisions were returned as undeliverable. 68

F.3d at 1357; 785 F.2d at 286. That is not the situation here because there was

no evidence that the decision had been returned.         Although Kumferman notes

that “proof of mailing” may be insufficient by itself to prove receipt, Kumferman

does not preclude a finding that, where there is proof of first class mailing to the

appellant at his current address coupled with proof that that mailing was not

returned, receipt may be presumed.

       Finally, the Board did not err in finding that Mateo had not shown good

cause for the delay.    Mateo has not provided any explanation for the delay

beyond his claim that he did not receive the decision. He has not thereby shown

that the Board’s decision was in error.       Because substantial evidence supports

the Board’s decision that Mateo’s appeal was untimely filed, we affirm.




05-3250                                   6
