United States Court of Appeals for the Federal Circuit
October 19, 1999
JOAN E. WALLACE, PETITIONER, V.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT
Before Michel, Circuit Judge, Smith, Senior Circuit Judge, and Schall,
The opinion of the court was delivered by: Per Curiam
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Joan E. Wallace appeals the final decision of the Merit Systems Protection Board ("Board") dismissing her petition for review as untimely. The Board dismissed Ms. Wallace's petition because it was not filed within the time period required by 5 C.F.R. § 1201.114(d), and Ms. Wallace did not show good cause for the delay. See Wallace v. Department of Veterans Affairs, No. AT-3443-98-0763-I-1 (Feb. 26, 1999). We affirm.
Ms. Wallace was employed by the Department of Veterans Affairs as a Staff Nurse from May 27, 1997, until May 12, 1998, when she was removed for failing to report an incident involving a patient who died under questionable circumstances. Ms. Wallace appealed her removal to the Board's Atlanta Regional Office. In due course, the administrative Judge ("AJ") issued an initial decision holding that the Board did not have jurisdiction over the appeal. See Wallace v. Department of Veterans Affairs, No. AT-3443-98-0763-I-1 (July 28, 1998). The initial decision stated that it would become final on September 1, 1998 unless a petition for review were filed before then or the Board reopened the case on its own motion. The decision emphasized the importance of filing a petition for review by September 1, 1998, and set forth detailed instructions on how to petition the Board for review.
Instead of immediately petitioning the Board to review the initial decision, Ms. Wallace filed a claim with the Fair Labor Relations Authority ("FLRA"). In the course of a telephone conference with an FLRA representative and a Board representative, Ms. Wallace's representative was advised to file a petition for review of the initial decision, even though the time for filing the petition had expired. When Ms. Wallace did so, on September 30, 1998, the Board informed her that she needed to submit a "Motion to Accept Filing as Timely or to Waive Time Limit" together with an affidavit or signed statement showing "good cause" for the late filing. Ms. Wallace submitted the required motion, justifying her delay on two grounds: (1) that she had been under the impression that she could not appeal the initial decision, and (2) that she had submitted a claim to the FLRA. The Board considered her explanation, but concluded that it did not establish good cause for the delay. See Wallace v. Department of Veterans Affairs, No. AT-3443-98-0763-I-1 (Feb. 26, 1999).
The only issue before us is whether the Board abused its discretion in dismissing Ms. Wallace's petition for review as being untimely without cause. This is the only issue addressed in the Board's February 26, 1999 decision, and that is the only decision of the Board that Ms. Wallace has timely appealed. We therefore do not address the AJ's decision that the Board lacks jurisdiction over Ms. Wallace's removal claim.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board's decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See 5 U.S.C. § 7703; Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). The decision of the Board in this case is none of these.
A petition for review of an AJ's initial decision must be filed within the time period set forth in 5 C.F.R. § 1201.114(d). The Board can waive this requirement upon a showing of good cause. See 5 U.S.C. § 7701(e)(1); 5 C.F.R. § 1201.114(f). Delay is excusable where the petitioner exercised diligence or ordinary prudence under the circumstances. See Mendoza v. Merit Sys. Protection Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (in banc). The burden is on the petitioner to show that the delay is excusable. See id.
Ms. Wallace did not file her petition for review until September 30, 1998, 29 days after it was due. Ms. Wallace explained that the primary reason for the delay was that she did not understand that she had a right to petition for review. The Board concluded that Ms. Wallace's inexperience with legal matters did not warrant waiver of the filing deadline. Because the initial decision provided unambiguous instructions on how and by when to petition for review, and because Ms. Wallace was represented by a union official, we find no abuse of discretion in the Board's Conclusion.
Ms. Wallace argues that the delay was due to circumstances beyond her control because the AJ did not find jurisdiction although she had submitted what she believed was ample evidence of the Board's jurisdiction. The decision of the AJ on the jurisdictional issue, however, is irrelevant to the matter of Ms. Wallace's delay in filing her petition for review. Ms. Wallace also argues that she was diligent in pursuing her claim because after the AJ issued the initial decision she promptly filed a claim with the FLRA. Although this action shows an effort on Ms. Wallace's part to pursue her employment dispute, it does not demonstrate that she was diligent in filing her petition for review with the Board.
For the foregoing reasons, the decision of the Board dismissing Ms. Wallace's petition for review is affirmed.
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