Roger J. Thomas v. Department of Veterans Affairs
Background
- Agency removed appellant effective Jan 31, 2016 for failure to maintain a regular work schedule; removal letter mailed three ways (UPS to apartment, certified mail to home, certified mail to P.O. Box).
- Supervisor telephoned appellant on Jan 25, 2016 to inform him the removal decision was issued; certified letter to P.O. Box was delivered and delivery notices issued but appellant did not pick it up and USPS returned it.
- Appellant filed an MSPB appeal on March 7, 2016, asserting untimely receipt due to wrong apartment address, medical conditions, and alleging whistleblower reprisal; he checked boxes asserting VEOA and USERRA claims and referenced OSC contact.
- Administrative judge dismissed the removal appeal as untimely (deadline March 1, 2016) and found no good cause for the six-day delay, relying on presumption of delivery to the P.O. Box and appellant’s failure to claim mail.
- On petition for review, Board found the petition for review timely, upheld dismissal of the removal claim as untimely without good cause, but concluded the AJ failed to provide required jurisdictional notice for IRA (whistleblower), VEOA, and USERRA claims and remanded for jurisdictional notice and opportunity to present evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal appeal | Thomas: did not receive decision timely due to wrong apartment address and medical issues | Agency: removal decision was mailed properly to P.O. Box and delivery notices were issued; appellant failed to claim mail | Appeal untimely—deemed received via P.O. Box; filed 6 days late; no good cause shown |
| Good cause based on illness | Thomas: medical conditions prevented timely filing | Agency: appellant did not explain how illness prevented timely filing or extension request | No good cause—medical evidence insufficiently tied to filing delay |
| Presumption of delivery to P.O. Box | Thomas: only home address matters; delivery requires personal signature per USPS manual | Agency: properly addressed certified mail and delivery notices to P.O. Box support presumption of delivery | Presumption applies; failure to claim P.O. Box mail means deemed receipt |
| Jurisdictional notice for IRA, VEOA, USERRA claims | Thomas: asserted whistleblower, VEOA, USERRA claims on appeal form and to OSC | Agency/AJ: redocketed as removal appeal and did not give explicit jurisdictional notice on these claims | Remand required: AJ must give explicit notice of jurisdictional burdens for IRA, VEOA, and USERRA and allow evidence/argument; if jurisdiction established, decide merits |
Key Cases Cited
- Melendez v. Department of Homeland Security, 112 M.S.P.R. 51 (2009) (agency motion to dismiss and initial decision can cure lack of earlier notice on timeliness burden)
- Williamson v. U.S. Postal Service, 106 M.S.P.R. 502 (2007) (presumption of receipt for properly addressed mail; 5-day presumption rule)
- Moorman v. Department of the Army, 68 M.S.P.R. 60 (1995) (factors for evaluating good cause for untimely filing)
- Salerno v. Department of the Interior, 123 M.S.P.R. 230 (2016) (Board jurisdiction over IRA appeals requires OSC exhaustion and nonfrivolous jurisdictional allegations)
- Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985) (appellant must receive explicit information on what is required to establish jurisdiction)