Quan P. Howard v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
QUAN P. HOWARD,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2184
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0841-20-0355-I-1.
______________________
Decided: July 10, 2025
______________________
Q UAN P. HOWARD, Santa Clara, CA, pro se.
ELIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by ALLISON
J ANE BOYLE, K ATHERINE MICHELLE SMITH .
______________________
Before M OORE, Chief Judge, P ROST and REYNA, Circuit
Judges.
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HOWARD v. MSPB 2
P ER CURIAM .
Quan Howard petitions for review of a final order of the
Merit Systems Protection Board (Board) affirming the dis-
missal of his appeal of an Office of Personnel Management
(OPM) decision as untimely filed. For the following rea-
sons, we affirm.
BACKGROUND
Mr. Howard was employed by the United States Postal
Service (USPS) from January 1995 to July 2015, when he
was removed from his position for misconduct. Appx. 11.1
In 2018, Mr. Howard applied to OPM for deferred retire-
ment. Id. OPM granted Mr. Howard’s application without
enhanced law enforcement retirement benefits under 5
U.S.C. §§ 8412(d) and 8415(e). Id. Mr. Howard disputed
his eligibility for enhanced law enforcement retirement
benefits, and on June 25, 2019, OPM issued a final decision
determining he is ineligible. Appx. 11–12; Appx. 56–57
(OPM final decision).
On April 2, 2020, Mr. Howard appealed to the Board.
Appx. 11. OPM moved to dismiss, and after considering
Mr. Howard’s arguments on the issue of timeliness, the ad-
ministrative judge (AJ) issued an initial decision dismiss-
ing his appeal as untimely. Id. at 10–16. Mr. Howard filed
a petition for review, which the Board denied in a final or-
der affirming the initial decision. Appx. 1–4. Mr. Howard
petitions for review. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
D ISCUSSION
Board regulations state that “an appeal 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
1 “Appx.” refers to the Appendix attached to Re-
spondent’s Informal Brief.
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HOWARD v. MSPB 3
appellant’s receipt of the agency’s decision, whichever is
later.” 37 C.F.R. § 1201.22(b)(1). “If a party does not sub-
mit an appeal within the time set by statute, regulation, or
order of a judge, it will be dismissed as untimely filed un-
less a good reason for the delay is shown.” 37 C.F.R.
§ 1201.22(c).
Board regulations also provide for constructive receipt
of agency decisions:
An appellant is responsible for keeping the agency
informed of his or her current home address for
purposes of receiving the agency’s decision, and
correspondence which is properly addressed and
sent to the appellant’s address via postal or com-
mercial delivery is presumed to have been duly de-
livered to the addressee. While such a presumption
may be overcome under the circumstances of a par-
ticular case, an appellant may not avoid service of
a properly addressed and mailed decision by inten-
tional or negligent conduct which frustrates actual
service.
37 C.F.R. § 1201.22(b)(3); see also id. at Example A (“An
appellant who fails to pick up mail delivered to his or her
post office box may be deemed to have received the agency
decision.”).
We must affirm final orders or decisions of the Board
unless the Board’s actions, findings, or conclusions are
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). “We have often stated that whether the
regulatory time limit for an appeal should be waived based
upon a showing of good cause is a matter committed to the
Board’s discretion and this court will not substitute its own
judgment for that of the Board.” Mendoza v. MSPB, 966
F.2d 650, 653 (Fed. Cir. 1992).
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HOWARD v. MSPB 4
OPM mailed its final decision to Mr. Howard on June
25, 2019. Appx. 13. Although Mr. Howard did not receive
the decision, he does not dispute he received a notice of at-
tempted delivery left at his address by USPS on June 28,
2019. Id.; Pet’r’s Informal Br. 3. The AJ found this to be
constructive receipt of OPM’s decision, making Mr. How-
ard’s deadline to file an appeal July 28, 2019. Because
Mr. Howard did not file his appeal until April 2, 2020, the
AJ found Mr. Howard filed his appeal 249 days late. Appx.
13–14.
Mr. Howard argues the 30-day appeal window did not
start on June 28, 2019, but on March 17, 2020, when he
actually received OPM’s final decision. Pet’r’s Informal Br.
3. According to Mr. Howard, there is insufficient evidence
to support the AJ’s conclusion of constructive receipt be-
cause there is no evidence USPS’s notice included a name
or address of the sender or any information about the na-
ture of the document. Id. at 3–7.
The Board considered Mr. Howard’s arguments, but
noted “the Board’s regulation at 5 C.F.R. § 1201.22(b)(3)
does not require knowledge of the sender’s identity as a
condition of constructive delivery.” Appx. 3. The Board
also explained that “[e]ven if [Mr. Howard] was unaware
that the item was a letter from OPM, he was still on notice
that USPS had attempted to deliver it and that he would
need to pick it up at the post office or arrange to have it
delivered at a later date.” Id. Mr. Howard did not explain
to the Board his failure to take such ordinary measures,
nor does he do so now. Accordingly, we decline to hold the
Board abused its discretion by affirming the AJ’s determi-
nation that Mr. Howard’s failure to pick up his mail was
either intentional or negligent conduct which frustrated ac-
tual service. Appx. 14; see also 37 C.F.R. § 1201.22(b)(3)
(“An appellant who fails to pick up mail delivered to his or
her post office box may be deemed to have received the
agency decision”). Thus, Mr. Howard’s 30-day appeal
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HOWARD v. MSPB 5
window began with his constructive receipt of OPM’s final
decision on June 28, 2019, and his appeal was untimely.
Even when an appeal is untimely, the appellant may
argue that good cause exists for the delay. 5 C.F.R.
§ 1201.22(c). We see no abuse of discretion in the Board’s
determination that Mr. Howard failed to establish good
cause for the untimely filing of his appeal. The AJ consid-
ered the “many inquiries” Mr. Howard claims to have made
with OPM about the status of his retirement application
but found no record evidence of these inquiries and noted
the incongruity of such actions with Mr. Howard’s failure
to pick up his mail. Appx. 16. The AJ also considered the
length of the delay and Mr. Howard’s representation by
counsel and found these factors weighed against waiving
the filing deadline. Id. We see no abuse of discretion in the
AJ’s analysis or the Board’s affirmance thereof.
CONCLUSION
We have considered Mr. Howard’s remaining argu-
ments and find them unpersuasive. Accordingly, we affirm
the Board’s dismissal of Mr. Howard’s appeal as untimely.
AFFIRMED
COSTS
No costs.
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