                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     EMMIE D. REED,                                  DOCKET NUMBER
                         Appellant,                  SF-0752-14-0587-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: April 16, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Emmie D. Reed, Walnut, California, pro se.

           Mikel C. Deimler, Esquire, San Francisco, California, 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 without good cause shown for the delay.
     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 or the erroneous application of

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                        2

     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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        Prior to her removal, the appellant was employed with the agency as an
     appeals officer. Initial Appeal File (IAF), Tab 7 at 40. The agency proposed her
     removal on February 12, 2014, id. at 76-82, and removed her effective April 9,
     2014, id. at 48-51. The removal decision informed the appellant of her right to
     appeal to the Board no later than 30 calendar days after the effective date of the
     action being appealed or 30 days after receipt of the agency’s decision, whichever
     was later. Id. at 49-51. The appellant filed the instant Board appeal on May 27,
     2014, asserting, inter alia, that her appeal was timely because she only received
     notice of her removal when she received a Standard Form 50 from the agency on
     May 10, 2014. IAF, Tab 1, Tab 4 at 4. The administrative judge issued an order
     stating that the appeal appeared to be untimely, and notifying the appellant of her
     burden of proving that either her appeal was timely or that, although it was
     untimely filed, there was good cause for the delay in filin g; the administrative
     judge’s order included the standard for establishing good cause for untimely
     filing due to illness. IAF, Tab 2. The agency responded, asserting, inter alia, that
     the appellant attempted to avoid service or failed to provide the agency with
                                                                                       3

     updated contact information and that it properly sent the decision letter and other
     correspondence to the appellant via the United States Postal Service (USPS) and
     United Parcel Service (UPS). IAF, Tab 7 at 5.
¶3        In the initial decision, the administrative judge found that the appeal was
     untimely filed because the appellant had constructive notice of the removal
     decision when it was delivered to her house; he further found that the appellant
     had not shown good cause for the delay.        IAF, Tab 24, Initial Decision (ID)
     at 15-18. The administrative judge cited the declaration of an agency employee
     stating that the agency sent the decision letter on March 27, 2014, by UPS to the
     appellant’s home address and by USPS to her post office box and home address.
     ID at 9 (citing IAF, Tab 20); see IAF, Tab 7 at 52-57 (copies of envelopes used to
     mail the decision letter via UPS and USPS and UPS tracking detail stating that
     the letter had been delivered to the appellant’s porch on March 28, 2014). The
     administrative judge also cited the employee’s statement that neither of the
     decision letters sent by USPS nor the five boxes of personal belongings that he
     sent to the appellant via UPS was returned to the agency. ID at 9 (citing IAF,
     Tab 9 at 51-52, Tab 20 at 5-6). The administrative judge found that the agency’s
     letters were actually delivered but that the appellant was attempting to avoid
     receipt of letters from the agency related to disciplinary matters. ID at 13-15. In
     support of this finding, the administrative judge noted that, although the appellant
     claimed not to have received letters related to discipline, such as the February 12,
     2014 proposed removal letter, IAF, Tab 1, an agency employee stated in a
     declaration that the agency received a facsimile from the appellant on
     February 13, 2014, responding to a notice concerning her health benefits that the
     agency mailed to her post office box on January 14, 2014, ID at 9 (citing IAF,
     Tab 10 (letter from the agency concerning health benefits election and response
     from the appellant sent by facsimile on February 12, 2014)). He also noted that a
     newly packaged/repackaged decision letter was shipped to the agency by someone
     through a San Francisco UPS receptacle, receiver, or office on June 10, 2014, but
                                                                                         4

     that nothing indicated that it was not originally delivered. ID at 14; see IAF,
     Tab 7 at 29-35 (decision letter, UPS envelope, and UPS tracking information for
     returned decision letter).      He therefore found that the decision letter was
     delivered by UPS to the appellant’s home address on March 28, 2014, that she
     intentionally avoided receiving the decision, and that she thus had constructive
     notice of the decision letter on March 28, 2014. ID at 15.
¶4            The appellant has petitioned for review, asserting that she diligently filed
     her appeal after receiving notice of her removal, that the instant case should have
     been treated as a mixed case with respect to the applicable deadlines for filing her
     appeal, and that the administrative judge did not properly consider her illness in
     assessing the timeliness of her appeal. Petition for Review (PFR) File, Tab 3
     at 6. The agency has filed a response. PFR File, Tab 7.
¶5             An appellant bears the burden of proving through preponderant evidence
     that her appeal has been timely filed. 2      Kirkland v. Department of Homeland
     Security, 119 M.S.P.R. 74, ¶ 5 (2013); 5 C.F.R. § 1201.56(a)(2)(ii). Generally,
     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)(1). The Board will dismiss
     an appeal that is untimely filed unless a good reason for the delay is
     shown. 5 C.F.R. § 1201.22(c).
¶6            Here, the administrative judge found, and we agree, that the decision letter
     was delivered by UPS to the appellant’s home address on March 28, 2014. ID
     at 15.     Under 5 C.F.R. § 1201.22(b)(3), “correspondence which is properly
     addressed and sent to the appellant’s address via postal or commercial delivery is
     presumed to have been duly delivered to the addressee.” The regulation further
     states, “While such a presumption may be overcome under the circumstances of a

     2
      A preponderance of the evidence is that degree of relevant evidence that a reasonable
     person, considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                        5

     particular case, an appellant may not avoid service of a properly addressed and
     mailed decision by intentional or negligent conduct which frustrates actual
     service.” Id. The appellant has not presented evidence or argument, other than
     her bare assertions, that she did not receive the decision letter on the date that it
     was delivered to her home address. The appellant thus has not established by
     preponderant evidence that she did not receive the decision letter when it was
     delivered via UPS on March 28, 2014.                Cf. Marcantel v. Department of
     Energy, 121 M.S.P.R. 330, ¶ 9 (2014) (regardless of whether the appellant’s
     father was authorized to receive letters on his behalf, the appellant constructively
     received the decision letter on the date that it was delivered and signed for at his
     father’s address (his address of record)).
¶7            Additionally, the appellant has not established that she did not receive the
     decision letter delivered to her post office box. The Board’s regulations provide
     that an appellant may be deemed to have received an agency decision when she
     failed to pick up mail delivered to her post office box. 5 C.F.R. § 1201.22(b)(3),
     Example A. The appellant has failed to rebut the presumption that she received
     the decision letter that was properly addressed and sent to her post office box via
     postal delivery.      See 5 C.F.R. § 1201.22(b)(3).      Therefore, even if, as the
     appellant alleges, she did not receive the decision letter that was delivered to her
     house via USPS or UPS, we find that she is deemed to have received the decision
     letter that was delivered to her post office box.
¶8            Because the appellant’s removal was not effective until April 9, 2014, IAF,
     Tab 7 at 48-51, after the appellant was deemed to have received the decision
     letter, we agree with the administrative judge that the filing deadline was 30 days
     later, on May 9, 2014, see 5 C.F.R. § 1201.22(b)(1). The appellant did not file
     her appeal until May 27, 2014, or 18 days after the deadline. IAF, Tab 1. We
     therefore find that the appellant has not established that her appeal was timely
     filed.
                                                                                            6

¶9          On petition for review, the appellant asserts that the timeframes for filing a
      mixed case should apply to her appeal. PFR File, Tab 3 at 6. A mixed case
      appeal is an appeal filed with the Board alleging that an appealable agency action
      was effected, in whole or in part, because of discrimination on the basis of race,
      color,   religion,    sex,   national     origin,   disability,   age,    or    genetic
      information. 29 C.F.R. § 1614.302(a)(2).      The timeframe for filing mixed case
      appeals is governed by 5 C.F.R. § 1201.154. Under 5 C.F.R. § 1201.154(a), the
      appellant may either file a timely complaint of discrimination with the agency or
      file an appeal with the Board no later than 30 days after the effective date, if any,
      of the action being appealed or 30 days after the date of the appellant’s receipt of
      the agency's decision on the appealable action, whichever is later.              If the
      appellant had filed a direct Board appeal under 5 C.F.R. § 1201.154(a), just as
      under 5 C.F.R. § 1201.22(b), she would have had to file her appeal within 30 days
      of the effective date of her removal.       Therefore, as previously discussed, her
      appeal would have been filed 18 days after the deadline.
¶10         Under 5 C.F.R. § 1201.54(b), if the appellant has filed a formal complaint
      of discrimination with the agency prior to appealing to the Board, the right to
      appeal to the Board does not vest until the agency issues a final decision on the
      discrimination complaint or 120 days elapse from the date the complaint is filed
      with the agency.      Although the appellant states that her appeal should be
      governed by the timeframes for mixed appeals, she has not presented evidence
      that she filed a formal complaint of discrimination concerning her removal prior
      to filing her appeal. 3   Thus, the appellant’s arguments concerning mixed-case



      3
        In its response, the agency submitted a July 2014 final agency decision that addressed
      the appellant’s August 2013 and December 2013 formal complaints concernin g other
      agency actions (not the appellant’s removal). PFR File, Tab 7 at 22-41. The agency
      also submitted a June 2014 equal employment opportunity counseling report that
      reflected that the appellant wanted to initiate a complaint concerning her removal, but
      there is no evidence of a formal complaint. Id. at 106-07.
                                                                                          7

      procedures are unsubstantiated and, in any event, do not warrant a different
      outcome.
¶11        Next, we find that the administrative judge properly determined that the
      appellant did not show good cause for the untimely filing.        To establish good
      cause for an untimely appeal, a party must show that she 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 if 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 she is
      proceeding pro se, and whether she has presented evidence of the existence of
      circumstances beyond her control that affected her ability to comply with the time
      limits or evidence of unavoidable casualty or misfortune which similarly shows a
      causal relationship to her inability to timely file her petition. 4     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). Where an appellant asserts that an untimely filing was the
      result of an illness, she must:    (1) identify the time period during which she
      suffered from the illness; (2) submit medical evidence showing that she suffered
      from the alleged illness during that time period; and (3) explain how the illness
      prevented her from timely filing her appeal or a request for an extension of time.
      Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).
¶12        The administrative judge found that the appellant failed to show good cause
      for the untimely filing of her appeal. ID at 17-18. On review, the appellant
      presents general arguments that her illness prevented her from focusing on
      routine habits such as checking her post office box or her home mail. PFR File,
      Tab 3 at 7-8. Under 5 C.F.R. § 1201.115(d), the Board will not consider evidence


      4
        Although the appellant is proceeding pro se on petition for review, PFR File, Tab 6,
      she was represented below, see IAF, Tab 1, and we therefore do not consider her pro se
      for purposes of determining whether she has shown good cause for the untimely filing
      of her initial appeal.
                                                                                            8

      submitted for the first time with the petition for review absent a showing that it
      was unavailable before the record was closed below despite the party’s due
      diligence.   Although the appellant’s arguments concerning her illness may be
      new, we do not consider them because the information upon which the arguments
      are based is not new. See Clemens v. Department of the Army, 120 M.S.P.R. 616,
      ¶ 19 n.10 (2014). Furthermore, even if we did consider these arguments, we find
      that they do not establish that the appellant’s illness affected her ability to timely
      file an appeal or to request an extension of time to file her appeal. See Tacujan v.
      U.S. Postal Service, 109 M.S.P.R. 553, ¶ 8 (2008) (finding that the appellant did
      not establish that his mental illness affected his ability to file a petition for appeal
      or request an extension of time to file an appeal where he submitted no medical
      documentation to support his assertion that his condition prevented him from
      timely filing his appeal).
¶13         We further find that the delay in filing of 18 days is not minimal. See
      Harris v. Department of Defense, 101 M.S.P.R. 123, ¶ 10 (2006) (declining to
      excuse an 8-day delay in filing an appeal where there was no good cause shown
      for the delay).      Considering the record as a whole, we agree with the
      administrative judge that the appellant did not establish good cause for her
      untimely filing.    Accordingly, we find that the administrative judge properly
      dismissed the appeal as untimely filed without good cause shown for the delay.

                         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:
                                   United States Court of Appeals
                                       for the Federal Circuit
                                     717 Madison Place, N.W.
                                      Washington, DC 20439
                                                                                  9

     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
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.
