                 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


                                       05-3235

                                 LAPAUL NEWELL,

                                               Petitioner,

                                          v.

                     MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                          ___________________________

                          DECIDED: February 6, 2006
                          ___________________________


Before MICHEL, Chief Judge, BRYSON, and DYK, Circuit Judges.

PER CURIAM.

                                      DECISION

      LaPaul Newell petitions for review of a decision of the Merit Systems Protection

Board, Docket No. DC-0752-04-0559-I-1, dismissing his appeal as untimely. Because

the Board erred in not granting Mr. Newell’s request for a hearing on the issue of the

timeliness of his appeal, we reverse and remand.

                                   BACKGROUND

      The United States Postal Service removed Mr. Newell from his position as a

Materials Handling Equipment Operator effective February 27, 2004, based on a charge
of unsatisfactory attendance. The agency’s letter of decision, dated February 23, 2004,

informed Mr. Newell that he had a right to appeal the removal “within thirty (30) calendar

days from the effective date of this decision.” In fact, under the Board’s regulations, Mr.

Newell’s appeal was due either 30 days after the effective date of the decision (which

would be March 29, 2004) or 30 days after his receipt of the agency’s decision,

whichever was later. 5 C.F.R. § 1201.22(b)(1). Mr. Newell’s appeal was filed June 1,

2004 (the postmark date).

       On June 10, 2004, the Board issued an order directing Mr. Newell “to file

evidence and argument showing that his appeal was timely filed or that good cause

existed for the delay.” The order explained that a petitioner could establish that an

untimely filing was the result of mental or physical illness by (1) identifying the time

period he suffered from the illness; (2) submitting corroborating evidence showing he

suffered from the alleged illness; and (3) explaining how the illness prevented him from

timely filing his appeal or requesting an extension of time.

       Mr. Newell submitted three documents in response to the order: (1) a letter dated

March 9, 2004, from Manu Singh, a psychology intern/treatment coordinator with the

Department of Veterans Affairs; (2) a letter dated May 25, 2004, from Rose M.

Washington, a case manager at the Maryland Center for Veterans Education &

Training, Inc. (MCVET); and (3) Mr. Newell’s own June 1, 2004, letter to the Board. The

Singh letter stated that Mr. Newell had been enrolled in an Addiction Day Treatment

Program from February 17, 2004, to March 19, 2004. The Washington letter explained

that MCVET assists homeless veterans in returning to the work force and stated that

Mr. Newell had been a student/resident in that program since his discharge from the




05-3235                                      2
Veterans Administration Medical Center on January 20, 2004. In his June 1, 2004,

letter, Mr. Newell stated that he had experienced major depression during November

2003 and had subsequently received psychological treatment and entered the MCVET

program. Mr. Newell also explained that the first 60 days of the MCVET program were

“geared at re-establishing structure into an individual’s life” and thus outside contact had

been “virtually non-existent.” In his response to the administrative judge’s June 10,

2004, order, Mr. Newell requested a hearing on the issue of timeliness.

       The administrative judge who was assigned to the case reviewed the submitted

documents and concluded that Mr. Newell failed to “show good cause for his failing to

timely file his appeal or requesting an extension of time to file.” The administrative

judge explained that Mr. Newell did not offer any “persuasive explanation of what

prevented him, after the agency’s . . . letter notified him of his February 27, 2004

removal, from acting on his appeal until June 1, 2004.” The administrative judge stated

that Mr. Newell did not claim he was hospitalized during that period of time or was

receiving medical treatment that prevented him from timely filing his appeal or

requesting an extension of the time for filing. The administrative judge further stated

that Mr. Newell’s participation in the MCVET program did not constitute circumstances

beyond his control that prevented him from timely filing his appeal. After concluding that

Mr. Newell had failed to demonstrate due diligence or ordinary prudence in meeting the

time limit for filing his appeal, the administrative judge dismissed the appeal as untimely.

       In his subsequent petition for review to the full Board, Mr. Newell asserted that

“the presumption that I received the notification of my appeal rights to the Board is

unfounded.” He claimed that he did not receive any correspondence regarding his




05-3235                                      3
removal until May 21, 2004, and in support of that claim he submitted a letter of that

date from a union representative to Mr. Newell’s case manager at MCVET. In essence,

Mr. Newell argued to the Board that the Postal Service “chose to initiate termination

procedures during [his] initial phase of treatment” at MCVET and thus left him unaware

of his removal until a union representative contacted him on May 21, 2004. The Board,

however, denied the petition for review.

                                      DISCUSSION

       The administrative judge viewed the timeliness issue in this case as involving

only the question whether Mr. Newell had shown good cause for the untimely filing of

his appeal.   In fact, the record in this case makes clear that there is an important

preliminary question to which the administrative judge did not advert; namely, whether

Mr. Newell’s appeal was untimely at all.

       As noted, Mr. Newell’s appeal was due for filing either 30 days after the effective

date of the agency’s action or 30 days after Mr. Newell received the agency’s decision,

whichever was later. Mr. Newell stated in his petition for review to the full Board that he

did not receive notice of that decision until May 21, 2004, and that his appeal was

therefore not untimely.    While he did not expressly state in his filings before the

administrative judge that he did not timely receive notice of his removal, he did

represent that he was homeless and that he had been enrolled in the MCVET program

since early 2004 to “regain a competent mental state” and to “continue my progress.” In

the program, he asserted, “outside contact is virtually non-existent.” He further stated

that at the time of his appeal, he resided at MCVET facility. In addition, Mr. Newell

submitted documentation supporting his assertion that from January 2004 through late




05-3235                                     4
May 2004 he had been a student/resident in the program, which was designed to assist

homeless veterans to maintain long term sobriety and return to the work force.

       To be sure, in his response to the administrative judge’s June 10, 2004, order Mr.

Newell did not state explicitly that he did not receive timely notification of his removal.

Nonetheless, we think the suggestion of lack of notification was implicit in his response.

He stated that he was homeless as of January 2004, that he had entered a program in

which “outside contact is virtually non-existent,” and that he was continuing to reside at

the program’s facility at the time he submitted his response. Moreover, the evidence he

submitted included a letter from a representative of the MCVET program who

corroborated his account and indicated that Mr. Newell was not aware of whether he

was still employed by the Postal Service.

      For its part, the Postal Service did not offer any evidence that Mr. Newell

received the notice of removal on or about the date that it was issued. The agency

submitted a copy of the letter of decision, but no evidence of receipt, although the

record contains proof of receipt for other documents that were sent to Mr. Newell’s

previous address. In fact, the only indication that the notice was delivered to Mr. Newell

is that it is addressed to him at his previous address. Even then, however, the address

listed on the notice of decision was apparently incorrect, as the address on the notice is

“603 Darrington St., N.E.,” rather than “603 Darrington St., S.E.,” which is the address

listed on other correspondence in the record as to which receipt was proved.

      Moreover, while the administrative judge’s June 10, 2004, order correctly stated

the general rule that an appeal must be filed within 30 days of the effective date of the

action challenged or within 30 days of the date of receipt of the agency’s decision,




05-3235                                     5
whichever is later, it did not state that Mr. Newell could establish that the appeal was not

untimely by providing evidence that he did not receive notice of the agency’s decision

until a time less than 30 days before the appeal was filed. In fact, despite the correct

general statement of the timeliness requirements, the notice then stated that “[t]his

appeal, to have been timely filed, must have been filed no later than March 29, 2004,”

which is inaccurate, since that statement assumes timely receipt of notice of the

agency’s decision. A party in Mr. Newell’s position could well assume from the latter

statement that the issue of timeliness was foreclosed and that the only avenue open to

him was to argue that there was good cause for the untimeliness of his appeal.

       Under these circumstances, and in light of Mr. Newell’s pro se status before the

Board, we believe that Mr. Newell’s response to the administrative judge’s June 10,

2004, order was sufficient to satisfy his burden of “establish[ing] a factual dispute as to

whether he timely filed his appeal,” which entitles him to the hearing on timeliness that

he requested. Meyer v. U.S. Postal Serv., 79 M.S.P.R. 667, 673 (1998); see also Lewis

v. Envtl. Prot. Agency, 82 M.S.P.R. 269, 271-72 (1999); Hamilton v. U.S. Postal Serv.,

79 M.S.P.R. 354, 356-57 (1998). Accordingly, we reverse the Board’s decision and

remand the case to the Board for a hearing on the issue of the timeliness. If necessary,

the Board should also address the question whether there was good cause for any

delay in filing, because the evidence pertaining to timeliness may affect the Board’s

assessment of the good cause issue.




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