When making appeals, meet deadlines, save proof

If you try to protest an action your agency takes against you, how can you establish that you filed an appeal by mail on time? That issue was raised recently in a case involving a federal employee who challenged a ruling by the Merit Systems Protection Board that she failed to appeal her removal within the allotted time.

Nora Lea Lynch was fired from her job as a secretary with the Army Nov. 10, 1995. Five months later, the MSPB received a "designation of representative letter" from Lynch's attorney.

But the board found that it had not received from Lynch an appeal against the Army's action, and it returned the letter to her attorney. The attorney responded that she had filed Lynch's appeal by certified mail Dec. 11, 1995. As proof, she attached copies of two properly addressed envelopes with

Dec. 11 metered stamps, but there was no postal receipt for the certified mail she claimed to have sent.

After receiving the attorney's response, an MSPB administrative judge issued an order directing Lynch to file evidence establishing that her appeal was timely or that there was good cause for the delay.

It should not have been difficult to prove the appeal was mailed on time. Users of certified mail always get a receipt from the post office proving letters were mailed. Users can also request a return receipt for proof that letters reached the addressee.

In this case, Lynch's attorney said that she was "unable to locate" the receipt. She said that the appeal's "certificate of service" (an internal document in the lawyer's office) and the copies of the envelopes should be sufficient to establish the mailing of the appeal. She also included an affidavit that detailed her "routine practice" regarding mailing appeals.

The MSPB responded that it had not received a copy of the appeal and that it was "highly unlikely" it would not have received the envelopes if they had been correctly addressed and mailed.

Lack of "Specific Details"

Consequently, the administrative judge concluded Lynch had not established that her appeal was mailed on time. The judge ruled that the attorney could not provide "specific details" concerning the mailing of Lynch's appeal, despite the fact that the letters were properly addressed and had the appropriate postage. Concluding that Lynch had presented no good cause for delaying her appeal, the administrative judge dismissed her appeal as untimely.

That action prompted Lynch to take her case to the Court of Appeals. In such cases, the person lodging the appeal has the burden of proving that her appeal was filed during the established time limit. The court said Lynch had to show by preponderant evidence that a pleading was properly addressed to the board with postage prepaid and placed in the U.S. Postal Service mail stream. If the appellant could satisfy that requirement, her appeal would be treated as filed on the date it was placed in the mail stream, regardless of whether the board received it.

The only evidence presented to the court to establish that the appeal had entered the mail stream Dec. 11 was Lynch's attorney's own assertion about her regular practice for processing legal pleadings. She stated in her affidavit that she made it a practice to ensure that all pleadings for which she had signed a certificate of service were mailed. She accomplished this by instructing and checking with her support staff. She also makes it a habit to check her firm's mailroom before leaving the office for the day. She said she was certain she would have followed her regular practice on Dec. 11. However, she did not say she specifically recalled mailing Lynch's appeal.

Despite the attorney's assertions, the court said the MSPB was correct in deciding that the affidavit was insufficient to meet Lynch's burden of proving that her appeal was placed in the mail stream Dec. 11.

Although the attorney described her common practice, she never said that she personally placed the appeal in the mail stream. Nor did any staff member who might have mailed the appeal submit an affidavit swearing the appeal was mailed. As a result, the court sided with the MSPB.

The burden of proof in cases such as this can be overcome. In a case decided in 1992, an appellant proved her appeal was filed on time by submitting an affidavit from her attorney's secretary. In the affidavit, the secretary stated that she personally had deposited the petition for review in one of two mailboxes.

In a similar case, the appellant submitted a sworn statement from an acquaintance who stated that he drove the appellant to the post office on the day in question and then watched the appellant's transaction with the post office clerk.

The refusal of Lynch's attorney to certify that she mailed the appeal created a suspicion that she probably did not do so. It also appeared strange that the attorney possessed metered envelopes that were properly addressed. Why would anyone who is mailing something address and stamp another envelope for her files?

If the attorney or a member of her staff mailed the appeal on time, all they had to do was swear to it. Unfortunately for Lynch, no one was willing to do that, and the court threw the case out.

The lesson learned from this case is clear. In cases involving time limits, retain evidence that proves you complied with deadlines.

Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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