Kumferman v. Department of Navy

• Citation: 785 F.2d 286
• Decision Date: 28 February 1986
• Docket Number: No. 85-2147,85-2147
• Parties: Donald H. KUMFERMAN, Petitioner, v. DEPARTMENT OF the NAVY, Respondent. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 286

785 F.2d 286

Donald H. KUMFERMAN, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.

Appeal No. 85-2147.

United States Court of Appeals, Federal Circuit.

Feb. 28, 1986.

Paul L. Gabbert, Santa Monica, Cal., for petitioner.

John S. Groat, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent. With him on brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Thomas Russell, Office of Gen. Counsel, Dept. of Navy, of counsel.

Before DAVIS, Circuit Judge, MILLER, Senior Circuit Judge and NEWMAN, Circuit Judge.

PAULINE NEWMAN, Circuit Judge.

Donald H. Kumferman appeals the decision of the Merit Systems Protection Board (MSPB or Board), Kumferman v. Department of the Navy, 19 M.S.P.R. 5 (1984) sustaining his removal from the Department of the Navy. We affirm.

Background

Mr. Kumferman was employed by the Department of the Navy (agency) as a General Engineer at the Naval Weapons Center in China Lake, California. His job responsibilities included the assessment of damage caused by experimental and developmental warheads. A search of petitioner's vehicles and on-base residence on January 19, 1980 uncovered the following items of government property: a tool box with tools; a microphone; Cannon, Arriflex, and Bolex movie cameras; a Kodak single lens reflex camera; and a liquid head tripod.

The agency proposed to remove Kumferman on September 3, 1981 on the charge of unauthorized possession of the aforementioned items of government property. In addition, the agency charged petitioner with theft of the tools, the Arriflex, Bolex, and Kodak cameras, and the tripod, as well as with falsification of a material fact in connection with official records concerning the condition or location of the Arriflex and Bolex cameras. With regard to the latter charge, the agency alleged that Kumferman had claimed on July 20 and August 1, 1979 that the Arriflex camera had been shipped to a New Mexico facility of the agency where it had been damaged in the course of a test of a warhead and cannibalized for parts. The agency also alleged that the petitioner had claimed on June 20, 1979 that the Bolex camera had been shipped to New Mexico in conjunction with a Navy contract when in fact this camera was neither shipped to, nor expected to be shipped to, this facility. After considering the written response by Kumferman's attorney, the agency issued a decision on October 20, 1981 removing petitioner from his position effective October 23, 1981.

Kumferman filed a timely notice of appeal with the San Francisco Regional Office of the MSPB. In a decision dated March 11, 1982 the presiding official found all of the charges proven by a preponderance of the evidence except for the charges of unauthorized possession of the tool box and tools (although the charge of theft of the tools was sustained) and theft of the Arriflex camera. The presiding official also found that the offenses had a sufficient adverse effect on the efficiency of the service to warrant imposition of a penalty, that the penalty of removal was reasonable under the circumstances, and that Kumferman's affirmative defenses had not been proven.

The Board denied Kumferman's petition for review on January 16, 1984 for failure to meet the criteria set forth at 5 C.F.R. Sec. 1201.115. Copies of the Board's decision were mailed to the petitioner on January 19, 1984 by certified mail, return receipt requested, and by regular mail to petitioner's attorney of record. On January 11, 1985 Kumferman filed a notice of appeal with this court, stating that he did not receive a copy of the Board's decision until January 4, 1985. He explained that the Board had sent the decision to his old address, that the Post Office had returned it to the MSPB undelivered but that "no effective follow up" was done, and that it was only through the vigorous efforts of his Congressman that he was finally able to secure a copy of the decision.

The Issue of Timeliness

Pursuant to 5 U.S.C. Sec. 7703(b)(1), appeal "must be filed within 30 days after the date the petitioner received notice of the final order or decision of the Board". The government maintains that this court lacks jurisdiction because this appeal was filed nearly one year after the date the Board's decision became final.

Although the statute explicitly refers to "the date the petitioner received" the decision, and the Board's records show that the certified letter to Kumferman was returned undelivered, the government argues that mailing by regular mail to Kumferman's attorney, whether or not the letter was received, is sufficient to start the thirty day statutory period.

The general rule applicable to jurisdictional notice statutes that expressly require receipt of the notice by the person charged, is that proof of mailing, without more, does not satisfy the statute. "The critical date for determining timely appeal to this court ... is the date petitioner received the Board's opinion and order." Strickland v. Merit Systems Protection Board, 748 F.2d 681, 684 (Fed.Cir.1984). The government does not seek to rely on proof of mailing of the notice to Kumferman, because the record shows that Kumferman did not receive the certified mailing. Instead, the government seeks to rely on proof of mailing to Kumferman's attorney then of record, since the record is silent as to whether the notice was received by the attorney.

At the time the decision was mailed, the Board's file contained correspondence from Kumferman showing his correct, current mailing address, different from that used by the Board. On August 12, 1984, several months after the Board's decision had become final, Kumferman again wrote to the Board to provide new information which he wrote would help the Board "to reach a timely and just decision relative to my appeal". Kumferman received no response to this letter, nor the information that his appeal had been decided many months before.

These facts distinguish the present case from Gragg v. United States, 717 F.2d 1343 (Fed.Cir.1983), on which the agency relies. In Gragg both the petitioner and his designated representative acknowledged that they received copies of the Board's decision by certified mail, both with return receipts. Any presumption of receipt in this case based on the mere mailing to Kumferman's attorney is rebutted by the uncontroverted evidence of Kumferman's diligent efforts over the course of a year to obtain a decision in his case. We decline to charge Kumferman with presumptive receipt of this decision when the Board knew he did not have actual receipt of the certified mailing, when the Board did not answer Kumferman's status inquiries, when the Board had received correspondence showing his correct address, and when only through his Congressman did he learn that a decision had been reached a year earlier. As Kumferman filed his notice of appeal within thirty days after the date he received the decision, we hold that his appeal was timely filed in terms of 5 U.S.C. Sec. 7703(b)(1).

The Merits

On the merits of the appeal, we consider whether there was substantial evidence to support the Board's findings, or whether the Board's decision was otherwise contrary to law. 5 U.S.C. Sec. 7703(c).

A.

On the charge of unauthorized possession of government property, paragraph 5(c) of NAVWPNCENINST 4520.2D is pertinent:

Government property may be removed by employees from its official location to their residence on the Center for official use with the approval of their supervisor. To protect the employee from embarrassment, approval shall be confirmed by proper written documentation signed by the employee's supervisor. When material or equipment is of high value, readily susceptible to pilferage ... the supervisor's approval must be in writing. [Emphasis in original.]

In his brief Kumferman "concedes that there is no evidence demonstrating that he had specific authorization to possess the equipment at his residence", but argues that the record does not establish that his possession was unauthorized. It was uncontroverted that Kumferman was authorized to use the equipment in his work.

Kumferman did not explain what "official use" of the items was made at his residence. The record shows that it was accepted practice for an employee to take equipment home the day before the employee was to travel with the equipment, but there was no evidence that Mr. Kumferman had been travelling or had planned to travel on work-related business at the time the items were discovered at his residence. Kumferman's supervisors denied authorizing him to have the items in his residence. We conclude that substantial evidence supports the presiding official's finding of unauthorized possession of government property. DeWitt v. Department of the Navy, 747 F.2d 1442, 1444 (Fed.Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1759, 84 L.Ed.2d 822 (1985).

B.

We next consider the charge of theft of the tools, the Bolex and Kodak cameras, and the tripod. These items were found in Kumferman's home. Kumferman testified that he did not intend to steal the items and submitted the results of a polygraph examination to this effect. The presiding official nonetheless found that the surrounding circumstances were sufficient circumstantial evidence of an intent to steal. These circumstances included the following: misstatements made by Kumferman to the Naval Investigative Service concerning his authority to possess the property at his residence; the length of time the property was in his possession, nearly seven months in the case of the Bolex camera; and the asserted removal or partial covering of identifying information on the property tag on the tripod. Credibility determinations are the province of the presiding official. Griessenauer v. Department of Energy, 754 F.2d 361 (Fed.Cir.1985). We conclude that the presiding official's determination was...