Tatum v. Merit Systems Protection Board , 482 F. App'x 554 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
WILLIE E. TATUM, JR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3233
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0752100569-I-1.
__________________________
Decided: May 10, 2012
___________________________
WILLIE E. TATUM, JR. of Fort Worth, Texas, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
Before DYK, SCHALL, and REYNA, Circuit Judges.
TATUM v. MSPB 2
PER CURIAM.
Willie E. Tatum, Jr. (“Tatum”) petitions for review of
a decision of the Merit Systems Protection Board
(“Board”). The Board dismissed his appeal as untimely.
Tatum v. U.S. Postal Serv., No. DA-0752-10-0569-I-1
(M.S.P.B. July 27, 2011) (“Board Decision”). We vacate
and remand.
BACKGROUND
Tatum is a veteran with a service-connected disabil-
ity, which makes him a “preference eligible” veteran
under 5 U.S.C. § 2108(3)(C). Tatum began work with the
U.S. Postal Service (“the agency”) in April 2006, where he
was employed as a mail processing clerk. In January
2008, Tatum began mental health treatment for post-
traumatic stress disorder (“PTSD”). On December 4,
2009, the agency mailed a notice of removal for “Unsatis-
factory Attendance” to Tatum’s address of record from his
most recent PS 50, on Brady Court in Arlington, Texas.
Resp’t’s App. 39. The removal notice stated that “[a]s a
preference eligible, [Tatum] ha[d] the right to appeal this
decision in writing to the [Board] within 30 calendar days
from the effective date of this decision,” which was De-
cember 18, 2009. Id. at 40-41. As described below, this
advice was inaccurate. Under the regulation, Tatum had
until 30 days after the effective date or 30 days after
receipt of the removal notice, whichever was later. See 5
C.F.R. § 1201.22(b)(1).
Tatum did not file a grievance challenging his re-
moval until April 9, 2010. On July 7, 2010, he filed an
appeal with the Board. The administrative judge in-
structed Tatum to file evidence that his appeal was timely
filed or that good cause existed for the delay. Tatum
3 TATUM v. MSPB
claimed that he first became aware of his December 2009
separation in March 2010, that he was hospitalized for
PTSD treatment from April 2010 until June 18, 2010, and
that he filed his Board appeal immediately after his union
president told him that he should. In response, the
agency submitted an affidavit from Natalie Stevenson,
who declared that on December 4, 2009, the agency sent
Tatum’s removal notice to his address of record on Brady
Court via first-class mail with delivery confirmation and
certified mail. The notice sent via certified mail, which
requires a signature upon delivery, was returned un-
claimed after multiple delivery attempts and notices, but
the notice sent via first-class mail, which does not require
a signature, was not returned to the agency and was thus
deemed delivered.
After consideration of this evidence, the administra-
tive judge concluded that good cause existed for the delay.
Tatum v. U.S. Postal Serv., No. DA-0752-10-0569-I-1, slip
op. at 4 (M.S.B.P. Nov. 5, 2010) (“Initial Decision”). She
found that the agency failed to prove the date it provided
Tatum with a copy of the removal notice and notice of his
right to file an appeal with the Board. Id. After a hearing
on the merits, the administrative judge reversed the
agency’s removal action and ordered that Tatum be
restored to duty. Id. at 17.
The Board granted the agency’s petition for review,
vacated the administrative judge’s initial decision, and
dismissed Tatum’s appeal as untimely filed without a
showing of good cause. Board Decision, slip op. at 2. The
Board stated that the Stevenson affidavit raised a pre-
sumption of delivery and receipt in December 2009, and
that Tatum failed to rebut this presumption because his
response was unsworn and because he “failed to suffi-
ciently explain the timeline or circumstances surrounding
his alleged nonreceipt.” Id., slip op. at 6-8. Additionally,
TATUM v. MSPB 4
the Board found that even if Tatum could rebut the
presumption of receipt, he did not demonstrate diligence
after he learned of his right to appeal. Tatum had as-
serted that he appealed “immediately” after learning of
his right to do so from his union representative, but the
Board concluded that “if the appellant spoke to his union
representative any time before June 7, 2010, his appeal
remains untimely.” Id., slip op. at 9. The Board con-
cluded that Tatum had not established good cause for his
delay, noting that Tatum’s assertions were “vague” and
“unsworn.” Id., slip op. at 10.
Tatum timely appealed to this court, and we have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of final Board decisions is limited. Under
5 U.S.C. § 7703(c), we may only set aside agency actions,
findings, or conclusions of law found to be “(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.”
The Board has jurisdiction to hear removal claims by
only some Postal Service employees, but its jurisdiction
includes claims by preference eligible veterans such as
Tatum. 5 U.S.C. § 7511(a)(1)(B)(ii), (b)(8); 39 U.S.C.
§ 1005(a)(4)(A). An appeal of an agency action to the
MSPB “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 the appellant’s receipt of the
agency’s decision, whichever is later.” 5 C.F.R.
§ 1201.22(b)(1). The Board may waive this deadline if “a
good reason for the delay is shown.” Id. § 1201.22(c).
5 TATUM v. MSPB
The filing deadline for Tatum’s Board appeal was
thirty days after the December 18, 2009, effective date, or
thirty days after Tatum’s receipt of the agency’s removal
decision, whichever was later. See 5 C.F.R.
§ 1201.22(b)(1). As the Board stated, the declaration from
Natalie Stevenson that the agency sent Tatum’s removal
decision to his address of record via first-class mail in
December 2009, and that it was not returned to the
agency as undelivered, raises a presumption that the
notice was delivered. Under the common law mailbox
rule, if a properly directed letter is proved to have been
delivered to the post office, this creates an “inference of
fact” that the letter was received by the addressee. Rios
v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007) (quot-
ing Rosenthal v. Walker, 111 U.S. 185, 193 (1884)). If
there is opposing evidence that the letter was not re-
ceived, the trier of fact must weigh the evidence “with all
the other circumstances of the case” to determine whether
the letter was actually received. Id. at 931 (quoting
Rosenthal, 111 U.S. at 194). In this case, the Board
concluded that Tatum failed to rebut the presumption
because he did not explicitly claim that he did not receive
the letter or that the address was incorrect, and we can-
not conclude that this factual finding is unsupported by
substantial evidence.
We note, however, that the Board erred in its alterna-
tive holding that even if Tatum could rebut the presump-
tion of receipt, his appeal was untimely because he did
not “demonstrate that he acted diligently after he learned
of his [appeal] right” from his union representative.
Board Decision, slip op. at 8. If Tatum did not actually
receive a copy of his removal decision and the notice of his
appeal rights, then his appeal was not untimely, even if
he learned of his appeal right from a third party. See 5
C.F.R. § 1201.22(b)(1). As we held in Saddler v. Depart-
TATUM v. MSPB 6
ment of the Army, 68 F.3d 1357, 1359 (Fed. Cir. 1995), an
appellant who does not receive an agency’s decision
because of his own negligence in failing to update his
address with the agency cannot be considered to have
constructively received the decision for purposes of section
1201.22—the appellant has thirty days from actual re-
ceipt of the decision to file a timely Board appeal.
While the Board’s finding that Tatum’s appeal was
untimely was not erroneous, we must remand for the
Board to analyze whether good cause existed for Tatum’s
delay in filing his appeal. The burden is on the appellant
to establish good cause by showing that the delay was
excusable and that he exercised due diligence. Zamot v.
Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).
“[P]olicy considerations counsel against dismissals for
untimely filing and militate for providing employees with
a hearing on the merits of their appeals, . . . and that
broad equitable principles of justice and good conscience
should be applied in good cause determinations.” Walls v.
Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994)
(citations omitted) (internal quotation marks omitted).
We have found good cause for untimely filing where
the agency has failed to provide proper notice of appeal
rights. See, e.g., Toyama v. Merit Sys. Prot. Bd., 481 F.3d
1361, 1366-67 (Fed. Cir. 2007) (notice failed to inform
petitioner that she could appeal either to the MSPB or file
an action in district court); Walls, 29 F.3d at 1583 (notice
failed to specify whether the time limit was in calendar or
working days); Shiflett v. U.S. Postal Serv., 839 F.2d 669,
674 (Fed. Cir. 1988) (no notice of appeal rights). It ap-
pears that the December 2009 notice of decision fails to
adequately inform Tatum of his appeal rights as required
by 5 C.F.R. § 1201.21. The letter states that Tatum may
file an appeal “within 30 calendar days from the effective
date of this decision.” Resp’t’s App. 41. As discussed
7 TATUM v. MSPB
previously, this is incorrect: Tatum could also timely file
within 30 days of the receipt of his removal decision and
appeal rights, even if this was more than 30 days from the
decision’s effective date. See 5 C.F.R. § 1201.22(b)(1).
Furthermore, section 1201.21(a) requires notice of “the
requirements of § 1201.22(c).” That latter section states:
If a party does not submit an appeal within the
time set by statute, regulation, or order of a judge,
it will be dismissed as untimely filed unless a good
reason for the delay is shown. The judge will pro-
vide the party an opportunity to show why the
appeal should not be dismissed as untimely.
Id. § 1201.22(c). The December 2009 notice does not
contain this language, and we have held that good cause
for delay existed where, among other things, this lan-
guage was omitted. See Ladrido v. Merit Sys. Prot. Bd.,
248 F. App’x 184, 186-87 (Fed. Cir. 2007) (non-
precedential).
In finding that Tatum had not established good cause,
the Board did not address the defective notice. A remand
is therefore required. On remand, additional factors the
Board should consider include, but are not limited to,
Tatum’s PTSD treatment, his pro se status, the possibility
that Tatum never actually read his removal notice, and
whether the agency was prejudiced by the delay. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document
filed pro se is to be liberally construed . . . .” (internal
quotation marks omitted)).
This case is remanded for further proceedings consis-
tent with this opinion.
COSTS
No costs.