U.S. Court of Appeals, Federal Circuit
February 08, 1999
EARL TILLMAN, PETITIONER,
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.
Before Newman, Michel, and Plager, Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
Earl Tillman petitions for review of a decision of the Merit Systems Protection Board (the "Board"), Docket No. SF-0752-98-0177-I-1, dismissing his appeal for untimely filing. Because Mr. Tillman has not demonstrated that the Board abused its discretion in dismissing his appeal, filed some ten weeks after the filing deadline, we affirm.
Mr. Tillman was officially removed from his position as file clerk for the Department of Veterans Affairs on August 16, 1997. A decision letter from the Department of Veterans Affairs notified Mr. Tillman of the August 16 removal date and of his right to appeal to the Board or file a grievance under the negotiated grievance procedure. The decision letter further explained that Mr. Tillman would lose his right to appeal if he did not do so within thirty calendar days of the effective date of his removal. Mr. Tillman elected to file a grievance with the Department of Veterans Affairs. On October 22, 1997, the Department of Veterans Affairs issued a "Step 3 Grievance Decision" upholding the August 16, 1997 removal. Thereafter, Mr. Tillman twice attempted to contact his union representative by certified mail without obtaining a response.
On November 25, 1997, seventy-one days after the filing deadline, Mr. Tillman filed an appeal with the Board. The Board informed Mr. Tillman that he had the burden of proving either that the appeal was timely or that good cause existed for the delay. In response, Mr. Tillman explained that the delay was due to a "breakdown in communications" with his union representative. Following Mr. Tillman's response to the order to show cause, the Board dismissed his petition as untimely. The Board found that Mr. Tillman did not show that he exercised due diligence or ordinary prudence under the circumstances and that filing of a grievance in another forum does not constitute good cause for delay.
The period for filing an appeal to the Board is thirty days, but the Board has the power to waive this requirement if the petitioner establishes good cause for the delayed filing. See 5 C.F.R. § 1201.22(c) (1998). To establish good cause, the petitioner must show that the delay was excusable under the circumstances and that diligence and ordinary prudence had been exercised. See Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir. 1982). 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. See Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (in banc). This court must affirm the Board's decision unless Mr. Tillman establishes that its decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994). See also Walls v. Merit Sys. Protection Bd., 29 F.3d 1578, 1581-82 (Fed. Cir. 1994).
On appeal to this court, Mr. Tillman seeks to justify his belated filing on two grounds: (1) he never filed a formal grievance with the Department of Veterans Affairs; and (2) a breakdown in communications with his representative. Neither constitutes good cause for his late filing. First, whether or not Mr. Tillman filed a formal grievance with the Department of Veterans Affairs is immaterial when considering whether he timely filed an appeal. The Notice of Removal sent by the Department of Veterans Affairs clearly states that Mr. Tillman had thirty calendar days from the effective date of his removal to file a grievance or appeal to the Board. The fact that filing a grievance is an option does not affect the requirement that any appeal to the Board be filed timely, whether a grievance is filed or not. Accordingly, Mr. Tillman had thirty calendar days from August 16, 1997 to file an appeal and he failed to meet this deadline by filing the appeal on November 25, 1997.
The record is clear, however, that Mr. Tillman filed a grievance with the Department of Veterans Affairs. As correctly held by the Board, pursuit of a grievance does not constitute good cause for untimely filing of an appeal. See Bacashihua v. Merit Sys. Protection Bd., 811 F.2d 1498, 1502 (Fed. Cir. 1987). A petitioner is not entitled to first pursue a grievance, and then if dissatisfied with that procedure, pursue an appeal with the Board despite having missed the deadline for filing the appeal. To the contrary, Mr. Tillman was entitled grieve his removal or appeal to the Board within thirty calendar days of the effective date of his removal, as stated in the Notice of Removal sent by the Department of Veterans Affairs.
Second, Mr. Tillman's defense that there was a "breakdown in communications" with his representative does not establish good cause because this in no way interfered with his timely filing of an appeal. It is well settled that a person is bound by the consequences of his representative's conduct, which include both the representative's acts and omissions. Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437 (Fed. Cir. 1986). Although there was a breakdown in communications and Mr. Tillman may have acted in good faith in relying on the action or inaction of his representative, Mr. Tillman had a personal duty to file an appeal in a timely manner. Therefore, Mr. Tillman cannot escape the consequences of his untimely appeal because he was notified of the deadline to file and failed to meet this deadline.
The AJ considered the arguments raised by Mr. Tillman and concluded these arguments did not demonstrate good cause for waiver of the filing deadline. The AJ was required by Board authority to consider all the pertinent circumstances in deciding whether to waive the filing deadline. We have recognized a series of factors enunciated by the Board in Alonzo v. Department of the Air Force, 4 M.S.P.B. 262, 264, 4 M.S.P.R. 180, 184 (1980), as relevant to the inquiry. See Walls, 29 F.3d at 1582. These factors include (1) the length of delay; (2) whether the appellant was notified of the time limit or was otherwise aware of it; (3) the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; (4) the degree to which negligence by the appellant has been shown to be present or absent; (5) circumstances which show that any neglect involved is excusable; (6) a showing of unavoidable casualty or misfortune; and (7) the extent and nature of prejudice to the agency because of delay. See Massingale v. Merit Sys. Protection Bd., 736 F.2d 1521, 1523 (Fed. Cir. 1984).
The AJ's opinion does not cite Alonzo or discuss or analyze the evidence using the Alonzo factors. The AJ is presumed, however, to have followed Alonzo, as it should with all binding authority. Therefore, we re-examine the record evidence in light of the Alonzo factors and consider whether the implicit findings of the AJ thereon are supported by substantial evidence. We hold they were. Considering those respective factors: (1) Mr. Tillman's delay of seventy-one days appears excessive; (2) he was adequately notified of the filing deadline; (3) circumstances did not affect his ability to file a timely appeal; (4) it appears that he deliberately decided to pursue a Department of Veterans Affairs grievance rather than an appeal; (5) his delay in filing his appeal was inexcusable; and (6) no unavoidable casualty or misfortune is at issue. Thus, despite the fact that the government has not claimed prejudice by the delay, factor (7), the other Alonzo factors all support the AJ's Conclusion that Mr. Tillman did not show good cause for the delay in filing his appeal.
Considering all the affirmable implicit findings of the AJ, we certainly cannot say that the Board abused its discretion in dismissing Mr. Tillman's appeal. The AJ found Mr. Tillman failed to carry his burden of demonstrating that his delay was excusable under the circumstances and that he exercised diligence and ordinary prudence. We agree. Accordingly, the Board's decision is affirmed.