Gomez v. Merit Systems Protection Board , 482 F. App'x 540 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GERALD D. GOMEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3205
__________________________
Petition for review of the Merit Systems Protection
Board in NY0752100238-I-1.
___________________________
Decided: April 27, 2012
___________________________
GERALD D. GOMEZ, of Martinsburg, West Virginia, pro
se.
SARA B. REARDEN, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
GOMEZ v. MSPB 2
Before BRYSON, MAYER, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Gerald D. Gomez petitions for review from a final or-
der of the Merit Systems Protection Board dismissing Mr.
Gomez’s petition for review by the full Board as untimely.
We vacate and remand.
BACKGROUND
Mr. Gomez was removed from his position as a Pro-
gram Support Assistant for the Department of Veterans
Affairs on February 23, 2010, for violating a last-chance
agreement. Mr. Gomez and the agency entered into the
last-chance agreement on August 22, 2008, after the
agency proposed to remove Mr. Gomez from his position
based on six charges of misconduct. The last-chance
agreement included a waiver of Mr. Gomez’s right to
appeal to the Board. Nonetheless, when the agency
removed him, Mr. Gomez appealed to the Board, arguing
that his acceptance of the last-chance agreement had been
involuntary. However, he presented no evidence to sup-
port that claim.
On November 4, 2010, the administrative judge is-
sued an initial decision based on the written record. The
administrative judge dismissed Mr. Gomez’s appeal
because Mr. Gomez failed to show that his acceptance of
the last-chance agreement was involuntary or that he had
not violated the last-chance agreement. The administra-
tive judge’s order explained that the initial decision would
become final on December 9, 2010, unless a petition for
review was filed by that date or the Board reopened the
case on its own motion. The order added that “if you
3 GOMEZ v. MSPB
prove that you received this initial decision more than 5
days after the date of issuance, you may file a petition for
review within 30 days after the date you actually receive
the initial decision.”
On February 16, 2011, Mr. Gomez filed a petition for
review with the Board. In his petition, he acknowledged
that his petition was being filed after the initial decision
had become final, but he argued that he did not receive
the initial decision until February 1, 2011, because he
“did not have a home address due to homelessness.” He
stated that on that date he had received the initial deci-
sion by fax from the office of the administrative judge, as
indicated by the “top of the fax.” He added that “[t]he
mail sent to the old address was returned mark (undeliv-
ered), which is noted on page 4 of the fax.”
The Board dismissed Mr. Gomez’s petition for review
as untimely. Based on prior Board precedent, McDonagh
v. General Services Administration, 82 M.S.P.R. 679
(1999), the Board ruled that it is an appellant’s responsi-
bility to ensure the timely forwarding of his own mail.
The Board found that a copy of the initial decision was
mailed to Mr. Gomez’s address of record and that Mr.
Gomez had failed to notify the Board of any change in his
address. As to his assertion that he did not have an
address because he was homeless, the Board found that
he had produced no evidence that he was homeless at the
time the initial decision was issued or when he received
it. Because Mr. Gomez had presented “no further expla-
nation for the filing delay, and no evidence of the exis-
tence of circumstances beyond his control that affected his
ability to comply with the time limits,” and because the
filing delay of more than two months was significant, the
Board held that Mr. Gomez had failed to show that he
exercised due diligence or ordinary prudence that would
GOMEZ v. MSPB 4
justify waiving the filing deadline. The Board therefore
dismissed the petition for review as untimely filed with no
showing of good cause for the delay. Mr. Gomez seeks
review of the Board’s final order.
DISCUSSION
Before 1997, the Board’s regulations required that pe-
titions for review be filed within 35 days of the issuance of
the initial decision. In that year, the Board amended its
regulations to provide that petitions for review would be
deemed timely if filed within 30 days of when the peti-
tioner received the initial decision if the initial decision
was received more than five days after it was issued. See
62 Fed. Reg. 59,991 (codified at 5 C.F.R. § 1201.114(d)).
In subsequent cases, the Board has interpreted that
regulation to require the petitioner to notify the Board of
changes of address and take other reasonable measures to
ensure the receipt of mail from the Board. See Bennett v.
Dep’t of Veterans Affairs, 97 M.S.P.R. 1, 3 (2004);
McDonagh, 82 M.S.P.R. at 682.
In a letter to the Board, we asked for the Board’s view
on an issue that had not been discussed either in the
Board’s opinion or in the briefs to this court. Specifically,
we noted that timeliness regulations regarding appeals to
the Board from an agency’s decision, which are similarly
worded to 5 C.F.R. § 1201.114(d), have not been inter-
preted to require the employee to show that he has taken
reasonable measures to ensure that he will receive notice
of the decision to be appealed. See Saddler v. Dep’t of the
Army, 68 F.3d 1357, 1360 (Fed. Cir. 1995) (interpreting 5
C.F.R. § 1201.154(b)(1), which addresses the timeliness of
appeals to the Board alleging that a personnel action was
based, in whole or in part, on prohibited discrimination);
Bradshaw v. Dep’t of Veterans Affairs, 113 M.S.P.R. 650,
5 GOMEZ v. MSPB
655 (2010) (interpreting 5 C.F.R. § 1201.22(b), which
addresses the timeliness of appeals to the Board challeng-
ing an adverse agency action).
In response to our letter, the Board requested that we
vacate and remand this case to give the Board an oppor-
tunity to “consider more closely the legal issues surround-
ing the Board’s jurisdiction, as well as the evidence that
implicates the Board’s jurisdiction, and issue a decision
accordingly.” Because the Board, in its decision under
review, did not address the similarly worded regulations
cited above, we agree that it is appropriate for the Board
to have an opportunity to consider whether it should
interpret the timeliness regulation for petitions for review
in a manner consistent with the interpretation given to
the regulations for review of agency action. Accordingly,
we vacate the Board’s order dismissing Mr. Gomez’s
petition for review and remand this case for further
proceedings before the Board.
No costs.
VACATED AND REMANDED