U.S. Court of Appeals, Federal Circuit
February 08, 1999
VINCENT L. MATTINGLY, PETITIONER,
DEPARTMENT OF THE NAVY, RESPONDENT.
Before Plager, Rader, and Bryson, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
The Merit Systems Protection Board (Board) dismissed Vincent L. Mattingly's petition for review of an April 3, 1997 initial decision as untimely and denied his petition for review of an October 29, 1997 initial decision for failure to comply with 5 C.F.R. § 1201.115 (1998). Because Mattingly has not shown that the Board abused its discretion in dismissing his untimely petition for review of the April 3 decision, and has identified no reversible error in the October 29 decision, this court affirms.
Mattingly worked as an Electronics Technician at the Naval Ordnance Station, Louisville, Crane Division. In 1995, the Department of Defense Base Closure and Realignment Commission recommended closing the Ordnance Station and transferring the workload and facilities to the private sector. The Navy created a new Government activity, the Naval Surface Warfare Center Crane Detachment (the Detachment), to support the private sector. To provide essential staff for the Detachment, approximately 150 employees were transferred from the Ordnance Station. Mattingly was not selected for transfer to the Detachment. Accordingly, by a reduction-in-force (RIF) notice dated April 28, 1996, the Navy informed Mattingly that he would be separated from federal service on August 17, 1996, the closure date of the Ordnance Station. The Navy abolished all positions at the Ordnance Station, except a small contingent of employees necessary to finalize closure operations.
Mattingly challenged his separation in an appeal to the Board on September 17, 1996. He asserted that he should have been transferred to the Detachment as part of the transfer-of-function that preceded the RIF. He and the Navy settled the case, memorialized in an April 1, 1997 written settlement agreement. Under that agreement, the Navy placed Mattingly in a position in the Detachment at the same grade, series, and step he held before the RIF, with no break in service. The agreement entitled Mattingly to receive back pay equal to the amount of severance pay he had been receiving since his RIF and granted him $150.00 for payment of attorney fees. The administrative Judge dismissed Mattingly's appeal on April 3, 1997, based on the settlement agreement. The decision became final on May 8, 1997.
On June 19, 1997, Mattingly filed a Petition for Enforcement with the Board, alleging that the Navy had not complied with certain terms of the settlement agreement. In an October 29, 1997 initial decision, the administrative Judge explored Mattingly's allegations, determined that the Navy had complied with the settlement agreement, and denied his petition for enforcement. On November 17, 1997, Mattingly petitioned the Board for review, challenging not only the October 29 decision, but also the April 3 decision. As to the April 3 decision, the Board found that Mattingly had not shown good cause for the filing delay and dismissed his petition as untimely filed. The October 29 decision became final when the Board determined that Mattingly's petition did not meet the criteria for review set forth at 5 C.F.R. § 1201.115. See 5 C.F.R. § 1201.113(b) (1998). Mattingly appeals.
The April 3 Decision
A petition to the Board for review of an administrative Judge's initial decision must be filed within thirty-five days of the date of the initial decision. See 5 C.F.R. § 1201.114(d) (1998). Mattingly waited more than six months to file his petition. The Board has discretion to waive the regulatory time limit based upon a showing of good cause. See 5 C.F.R. § 1201.22(c) (1998). This court will not substitute its own judgment for that of the Board. See Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Instead, this court reviews the Board's decision to refuse to accept an untimely filing for abuse of discretion. See 5 U.S.C. § 7703(c) (1994); Massingale v. Merit Sys. Protection Bd., 736 F.2d 1521, 1522-23 (Fed. Cir. 1984);.
In the months leading up to the April 3 decision, Mattingly leveled charges of perjury against the Navy. Mattingly alleges that Navy affidavits falsely state that no Electronics Technicians were retained in the Detachment. According to Mattingly, he "sent the Judge lists showing that there in fact were other technicians retained that I would have retention rights over and stated that the agency was lying." Even interpreting the affidavits as Mattingly does, however, this court can still find no excuse for his failure to seek prompt review of the administrative Judge's decision by the Board. Mattingly does not contend, for example, that he only discovered the alleged perjury after the initial decision became final. In fact, the opposite is true. The record reflects that Mattingly accused the agency of perjury before the April 3 initial decision. Thus, because Mattingly has failed to show that the Board abused its discretion in dismissing his petition, this court affirms.
The October 29 Decision
Mattingly's arguments in his brief repeat the issues of alleged perjury and timeliness as they relate to the April 3 decision. He points to no error, legal or factual, in the October 29 decision. Nor can this court, upon its independent review of the record submitted on appeal, find anything in that decision that can be characterized as arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; procedurally defective; or unsupported by substantial evidence. See 5 U.S.C. § 7703(c). This court thus affirms the Board's decision.