Johnson v. Department of Treasury
| Decision Date | 18 November 1983 |
| Docket Number | No. 83-684,83-684 |
| Citation | 721 F.2d 361 |
| Parties | James W. JOHNSON, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Jessie James, Jr., and Michelle C. White, Washington, D.C., submitted for petitioner.
J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Donnie Hoover and Robert G. Giertz, Washington, D.C., submitted for respondent; Suzanne Wilson, Bureau of Engraving and Printing, Dept. of the Treasury, Washington, D.C., of counsel.
Before MARKEY, Chief Judge, and DAVIS and SMITH, Circuit Judges.
James W. Johnson's motion for a third continuance of the hearing in the administrative appeal of his removal from the position of plate printer at the Bureau of Engraving and Printing 1 was denied by the presiding official of the Merit Systems Protection Board (MSPB or Board). When petitioner and his counsel both failed to appear at the scheduled hearing, the presiding official decided the case on the existing record and upheld the removal. The full Board denied Johnson's appeal to it, on the ground that the presiding official's actions were correct. Petitioner seeks review here. We affirm.
Johnson's removal, effective September 20, 1980, was based on unsatisfactory attendance. 2 His attorney, Harry Toussaint Alexander, timely filed with the MSPB a petition for appeal dated October 15, 1980 in which he stated that the removal was "unsupported by the facts" 3 and requested a hearing. The Board's October 21, 1980 letter acknowledged receipt of the petition, explained the process by which the appeal would be considered, and included the following:
It is the policy of the Merit Systems Protection Board to complete action on an appeal within 120 calendar days after the petition for appeal is filed. The Board expects you to cooperate in the expeditious processing of this case. Failure to prosecute the appeal expeditiously may result in its dismissal.
It is also the policy of the Board to decline any request for a continuance of a hearing or for an extension of time within which to submit evidence and argument unless the request is supported by an affidavit showing good cause for granting a continuance or extension. Extraordinary circumstances must be shown to have more than one continuance or extension allowed.
The procedures there outlined derive from 5 U.S.C. Sec. 7701 et seq., which set out the MSPB's appellate procedures, 4 and from the Board's regulations, 5 C.F.R. 1201.51 et seq., promulgated pursuant to the specific authorization in 5 U.S.C. Sec. 7701(j). They are also supported by the legislative history to the Civil Service Reform Act of 1978. See S.Rep. No. 95-969, 95th Cong., 2d Sess. 61-62 (1978), U.S.Code Cong. & Admin.News 1978, p. 2723.
Petitioner's attorney was notified by the assigned presiding official by letter dated November 21, 1980 that the requested hearing would be held December 18, 1980. Postponement of that hearing was requested by Mr. Alexander by motion dated December 2, 1980, citing a conflicting scheduled court appearance and noting that "[n]o postponements have been granted in this matter". That motion was granted.
Following contacts with Mr. Alexander's office regarding a mutually convenient new hearing date, the presiding official confirmed the date as January 9, 1981 by letter of December 31, 1980 to Mr. Alexander. That letter recognized Mr. Johnson's possible unavailability due to hospitalization on the hearing date and noted that:
I will, of course, give due consideration to any future motion for postponement of the hearing for good cause shown. Any such motion must be supported by an affidavit and, if appropriate, medical evidence to establish Mr. Johnson's unavailability.
A second motion for postponement was hand-delivered in the late afternoon of January 8, 1981, citing petitioner's hospitalization and stating that a doctor's certificate was forthcoming. The second motion was also granted. The presiding official received a doctor's certificate by letter dated January 13, 1981, indicating that Johnson had been hospitalized since December 31, 1981, but stating no details regarding Johnson's medical condition.
After repeated, unsuccessful attempts by the presiding official to learn the specifics of Johnson's status in order to set a new hearing date, during which period he learned that Johnson was no longer hospitalized, the presiding official advised Mr. Alexander's office that--in the absence of medical evidence--he would reschedule the hearing. Having received no such evidence, the presiding official (on February 2) set February 11, 1981, as the new date, and Mr. Alexander was so notified by letter of February 2nd.
On the afternoon of February 10, 1981, a third motion for continuance was received, stating that Johnson was ill, that he had been advised by his doctor not to attend a hearing, that a doctor's certificate was forthcoming, and that Mr. Alexander was involved in a trial which began February 3 and was expected to continue through February 13. The motion was not supported by an affidavit.
The presiding official immediately notified both parties by telephone of his denial of this third motion. Neither petitioner nor his counsel attended the scheduled hearing the next day. The presiding official closed the record and on February 13, 1981, issued an initial decision upholding Johnson's removal.
The Board denied Mr. Alexander's request (on behalf of petitioner) for review, in a reasoned decision of October 6, 1982. It found the denial of the third continuance correct, saying that Mr. Alexander had not shown good cause for another postponement nor had he supplied the required documentation. The Board also found that failure to allow the submission of further evidence was not reversible error nor was Johnson prejudiced by that action; Johnson had had ample opportunity to present his case prior to the hearing.
Petitioner now asserts 5 that (1) he was denied due process because he had no opportunity to participate in a factfinding hearing before the presiding official, thereby also losing the right to pursue other claims, and (2) the MSPB abused its discretion in denying the motion for continuance both (a) because it failed to follow normal procedures by not sending copies of all relevant papers to petitioner (as opposed to his counsel) and (b) because the Board was on notice of Mr. Alexander's lack of diligence and petitioner's incapacity.
We find no fault with the Board's decision. In tension are (1) petitioner Johnson's apparent expectation of receiving a hearing in the appeal of his removal with (2) the Congressional directives to the MSPB to be expeditious in its handling of appeals. See 5 U.S.C. Secs. 7701(i)(1) and (4). There is no question of petitioner's entitlement to appeal the removal action to the MSPB under 5 U.S.C. Sec. 7701, nor is there any dispute regarding petitioner's right to request a hearing under 5 U.S.C. Sec. 7701(a)(1).
Under 5 U.S.C. Sec. 7701(j), supra, the Board promulgated regulations which inform appellants of their rights and which establish procedures by which an appeal may be decided either on the record or following a hearing. Motions for postponements of hearings are provided for under 5 C.F.R. 1201.51 and 5 C.F.R. 1201.55. The former provision includes the statement that "[m]otions for postponement ... shall be made in writing and accompanied by an affidavit setting forth the reasons for the request and shall be granted only upon a showing of good cause".
Mr. Alexander was on notice of the Board's requirements from the statute, the regulations, and the Board's communications to him. 6 Petitioner's third motion, involved here, presented no affidavit and made virtually no attempt at a "good cause" showing. Two prior continuances had been granted despite delayed or insufficient support. Almost all of the normal 120 days for determination of an appeal to the MSPB had already elapsed. This is not a case where a presiding official abused his discretion in denying the third request. The record shows fairness on the presiding official's part in granting two continuances, great diligence in his further attempts to establish a mutually...
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