Zelma L. Earls v. Merit Systems Protection Board

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
04-3196
ZELMA L. EARLS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
_______________________
DECIDED: November 5, 2004
_______________________
Before MICHEL, Circuit Judge, ARCHER, Senior Circuit Judge, and SCHALL, Circuit
Judge.
PER CURIAM.
Zelma L. Earls (“Earls”) appeals the Merit Systems Protection Board’s (“Board”)
decision dismissing her petition because it was untimely filed. Earls v. Dept. of the
Treasury, No. DA-0752-02-0586-I-1 (M.S.P.B. Jan. 21, 2004) (“Order on Timeliness”).
We affirm.
Earls was employed as a GS-8 Contact Representative with the Internal
Revenue Service when she was removed, effective June 28, 2002, based on leave and
attendance-related misconduct. She appealed the action to the Board. An
administrative judge affirmed the removal action in a December 9, 2002, initial decision.
Earls v. Dep’t of the Treasury, No. DA-0752-02-0586-I-1 (M.S.P.B. Dec. 9, 2002) (“Initial
Decision”). The Initial Decision clearly stated the deadline date for filing a petition for

-- 1 of 3 --

review of that decision with the Board, January 13, 2003, and was served on both Earls
and her designated representative. The Board found that Earls’ petition for review was
filed on February 12, 2003. Order on Timeliness at 2. Earls argues that her petition
should be considered timely because it was through no fault of her own that her petition
was filed late; rather, her mail had been misdirected to another apartment’s mailbox and
that individual waited several weeks before returning the misdirected mail to the mail
carrier. Earls claimed she filed the petition for review as soon as she could after
receiving the Initial Decision.
The Board explained that it did not find good cause for Earls’ untimely filing,
because a copy of the Initial Decision was sent to Earls’ representative and Earls had
made no allegation or showing of late receipt by her representative. It noted that
“receipt of an initial decision by an appellant’s designated representative constitutes
constructive receipt by the appellant.” Id. at 2-3.
We must affirm a Board decision unless it is found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c). A petition for review of an MSPB initial
decision must be filed within 35 days of an initial decision or, if the petitioner shows that
the initial decision was received more than 5 days after the date of issuance, within 30
days after the date the petitioner received the initial decision. 5 C.F.R. § 1201.114(d).
However, the Board will waive this time limit upon a showing of good cause for the
untimely filing. 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(f). The burden is on the
petitioner to demonstrate excusable delay. Mendoza v. Merit Sys. Prot. Bd., 966 F.2d
04-3196 2

-- 2 of 3 --

650, 653 (Fed. Cir. 1992) (en banc). We have held that a representative’s receipt of the
Board’s final decision constitutes notice of an agency’s decision and can commence the
running of the statutory period to file with the court. Gragg v. United States, 717 F.2d
1343, 1345-46 (Fed. Cir. 1983).
The government argues that Earls did not raise the argument that her
representative did not receive the Initial Decision before the Board and that argument,
therefore, is not properly before the court. While this is technically correct, we do,
however, give more latitude to pro se applicants who may not fully understand all of the
rules of our court. Here, however, even if we consider Earls’ argument that her
representative did not receive the Initial Decision, we must affirm the Board’s finding
that the petition was untimely filed. This is because Earls offers no evidence that her
representative did not receive the Initial Decision – she offers merely uncorroborated
allegations and states that her representative was “taken off the case and put on the
back [sic] on the case.” Notably, the address for her representative that Earls gave to
this court is the same as that listed on the Initial Decision. We have no reason to
believe that Earls’ representative did not receive the decision. Accordingly, we affirm
the Board’s conclusion that Earls’ petition for review was not timely filed.
04-3196 3

-- 3 of 3 --