                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TINA R. BLAKE,                                  DOCKET NUMBER
                         Appellant,                  DA-0752-16-0280-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 23, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1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 based 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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 appeal 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 Appeal File (IAF), Tab 6 at 35‑40. After
     attempting to file an appeal on January 19, 2016, which the Dallas Regional
     Office returned to her as defective, the appellant filed an appeal on March 18,
     2016. IAF, Tabs 1-2. The administrative judge issued an Order on Timeliness in
     which she informed the 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, the 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 initial 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
     adverse action being appealed, or 30 days after the date of receipt of the agency’s
                                                                                       3

     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 January 11, 2016. 2 The appellant contended that she did not
     receive a copy of the agency’s decision until the agency submitted it during 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 notice via certified mail to the appellant’s address of
     record on December 10, 2015, and that the notice was received and signed for
     on December 11, 2015. IAF, Tab 14 at 5. The appellant contended that she did
     not receive this document and neither 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 December 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 of 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 December 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 filing 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 approximately 2 months untimely filed.
¶6         To establish good cause for the untimely filing of an 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 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 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 of unavoidable casualty or
     misfortune that similarly shows 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. 1995)
     (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 Management, 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 the
                                                                                           5

     administrative judge that the appellant 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, 558 (1995).            Therefore, we have not
     considered them.

                      NOTICE TO THE APPELLANT 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 court 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
     submission met the Board’s filing requirements, it would still be untimely filed without
     a showing of good cause for the delay.
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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 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 accept representation
in a given case.




FOR THE BOARD:                                ______________________________
                                              Jennifer Everling
                                              Acting Clerk of the Board
Washington, D.C.
