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Sanso v. Merit Systems Protection Board

United States Court of Appeals for the Federal Circuit


October 14, 1999

JAMES A. SANSO PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.

Before Plager, Lourie, and Clevenger, Circuit Judges.

PER CURIAM.

DECISION

James A. Sanso appeals from the March 29, 1999 final decision of the Merit Systems Protection Board dismissing his petition for enforcement of the Board's final decision, which mitigated his removal from the United States Postal Service (the "agency"). See Sanso v. United States Postal Serv., No. DA-0752-97-0027-C-2 (Mar. 29, 1999). Because Sanso has not shown that the Board erred in dismissing his petition, we affirm.

DISCUSSION

On October 11, 1996, the agency removed Mr. Sanso from his position as Supervisor of Customer Services for violating postal finance regulations. Sanso appealed this adverse action to the Board, and the AJ mitigated the penalty to a 45-day suspension, ordering the agency to provide Sanso with appropriate back pay and employment-related benefits. See Sanso v. United States Postal Serv., No. DA-0752-97-0027-I-2 (Aug. 8, 1997). Neither party appealed the initial decision, which thus became final on September 12, 1997. See 5 C.F.R. § 1201.113 (1997).

On November 12, 1997, Sanso filed an enforcement petition, claiming that the agency had not complied with the Board's final decision. See J.A. at 35-36. Sanso also filed a supplemental petition for enforcement on December 9, 1997. See J.A. at 38. As a result of these petitions, Sanso and the agency entered into an oral settlement agreement on March 5, 1998, and the AJ dismissed the petitions. See Sanso v. United States Postal Serv., No. DA-0752-97-0027-C-2 (Mar. 5, 1998).

On May 11, 1998, Sanso filed a third petition for enforcement, see J.A. at 41-42, the relevant contentions of which the AJ summarized as follows:

[A]ppellant asserted that he did not receive a lump sum merit raise in January 1996, January 1997, and January 1998. He also contended that he did not receive an Economic Value Added (EVA) variable pay program award, which agency employees received in December 1997.

Sanso v. United States Postal Serv., No. DA-0752-97-0027-C-2, slip. op at 2 (Sept. 9, 1998). The AJ dismissed Sanso's petition for lack of jurisdiction under 5 C.F.R. § 1201.182(a). *fn1 The AJ initially found that Sanso had failed to file his third petition for enforcement in a sufficiently "prompt" manner. Although the agency had failed to send Sanso a notice of compliance, the AJ found that Sanso was nevertheless aware, i.e., had in effect received a constructive notice of compliance, on or before the March 5, 1998 oral settlement date, that he would not receive lump sum merit raises or an EVA award. Because Sanso did not file his third petition until May 11, 1998, well over thirty days after the date of constructive notice of compliance, the AJ found that Sanso's appeal was untimely under § 1201.182(a).

The AJ further found that Sanso had failed to show good cause for his untimely filing. While Sanso asserted that he had delayed filing his petition due to "ongoing Discussion[s]" with the agency, the AJ noted that Sanso had failed to include the dates of any such communications with the agency. Indeed, the AJ noted that Sanso had failed to submit evidence that he had any Discussions with anyone at the agency after entering into the settlement agreement. Based on these facts, the AJ dismissed Sanso's third petition for enforcement, concluding that Sanso had failed to timely file his petition and had failed to show good cause for not doing so.

The initial decision became final upon the Board's denial of Sanso's petition for review. See C.F.R. § 1201.113(b) (1997). Sanso appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (1994).

Under 5 U.S.C. § 7703(c), we review Board decisions to determine, inter alia, whether they were "obtained without procedures required by law, rule, or regulation having been followed." 5 U.S.C. § 7703(c) (1994). Jurisdiction is a question of law that we review de novo. See Yates v. MSPB, 145 F.3d 1480, 1483 (Fed. Cir. 1998); Waldau v. MSPB, 19 F.3d 1395, 1398 (Fed. Cir. 1994). A petitioner has the burden of establishing Board jurisdiction by a preponderance of the evidence, see 5 U.S.C. § 1201.56(a)(2); Serrao v. MSPB, 95 F.3d 1569, 1573 (Fed. Cir. 1996), and we review the jurisdictional fact-finding of the Board to ensure that it was not arbitrary, capricious, an abuse of discretion, or unsupported by substantial evidence, see 5 U.S.C. § 7703(c) (1994); Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986).

We understand Sanso to argue that in spite of his attempts to contact the agency regarding the merit raise and EVA issues, he was given no response, i.e., no notice of compliance, and that accordingly, his failure to submit his petition for enforcement in a timely fashion should be excused. Alternatively, Sanso argues that he should be excused for his untimely filing because he expected his counsel to file his petition in a timely fashion and that he should not be "wronged" for his counsel's ineptitude. Sanso also claims that the AJ erred in not allowing him to call all of the witnesses he wished to testify on his behalf.

Regulation § 1201.182(a) provides that a party may petition the Board to enforce a final decision, provided that, inter alia, such petition is filed "promptly." See 5 C.F.R. § 1201.182(a) (1997). "Promptly" is defined as within 30 days of service of the agency's notice that it has complied with the Board's final decision. See id.; Bingaman v. Department of Treasury, 127 F.3d 1431, 1439 (Fed. Cir. 1997). Implicit within the regulation is the requirement that the aggrieved party communicate to the agency his or her allegations that the agency has not complied with the Board's final decision, as such communication is what triggers the agency to generate its notice of compliance, and in turn, the 30 day deadline for filing an enforcement petition. This implicit requirement is the reason why all communications between the party and the agency must be included within the petition for enforcement submitted to the Board. See 5 C.F.R. § 1201.182(a) (1997) ("The petition also must include the date and results of any communications regarding noncompliance.") (emphasis added).

We agree with the agency that the Board properly dismissed Sanso's third petition for enforcement, but for a reason different from that articulated by the Board. The Board held that it lacked jurisdiction because Sanso had filed the petition in an untimely manner and had provided no good cause for doing so. However, we conclude that substantial evidence supports the Board's finding that Sanso never communicated his noncompliance allegations to the agency, an action which necessarily must precede the filing of a petition for enforcement. The Board noted that Sanso had failed to present any evidence substantiating his claim that he had discussed the agency's alleged noncompliance with the agency; on appeal, Sanso likewise fails to direct us to any evidence in the record to support his claim. Moreover, the agency submitted the declaration of Sanso's supervisor, Cynthia West, who stated that Sanso had never approached her concerning an EVA award or merit pay. We therefore conclude that the Board's finding that Sanso failed to communicate to the agency his allegations of noncompliance with the Board's final decision is supported by substantial evidence, and thus conclude that the Board properly dismissed the petition under § 1201.182(a). In view of our Conclusion, we do not reach Sanso's arguments regarding timeliness, the alleged ineptitude of his counsel, or the AJ's refusal to admit certain testimony. Accordingly, we affirm.


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