Casey v. Merit Systems Protection Bd., 84-1008

• Decision Date: 28 November 1984
• Docket Number: No. 84-1008,84-1008
• Parties: Eugene H. CASEY, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 685

748 F.2d 685

Eugene H. CASEY, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal No. 84-1008.

United States Court of Appeals, Federal Circuit.

Nov. 28, 1984.

Peter O. Shinevar, Bredhoff & Kaiser, Washington, D.C., argued for petitioner. With him on brief was Jeffrey R. Freund, Washington, D.C.

David Kane, Merit Systems Protection Board, Washington, D.C., argued for respondent. With him on brief were Evangeline W. Swift, General Counsel and Mary L. Jennings, Associate General Counsel for Litigation, Washington, D.C.

Before BALDWIN, SMITH, and BISSELL, Circuit Judges.

BISSELL, Circuit Judge.

The decision of the Merit Systems Protection Board (Board), Docket Number DC07528310761, dismissing the appeal of Eugene H. Casey (Casey) of his reduction in grade as being untimely filed is vacated and the case is remanded.

BACKGROUND

Casey was temporarily promoted to the position of Foreman at the Government Printing Office (agency) effective April 22, 1979, for a term not to exceed one year. This appointment, at its expiration, was extended for another twelve months and then a final extension was made for eleven days through May 2, 1981. It is undisputed that Casey was not accorded adverse action procedures when he was returned to his former position of Assistant Foreman.

On April 7, 1983, Casey wrote to the agency Director of Personnel requesting that he be given the same consideration as that extended to other employees who had The Board's Presiding Official dismissed the appeal as being untimely. She found that "an insufficient basis had been established for waiver of the [twenty day] time limit" imposed by 5 C.F.R. Sec. 1201.22 because Casey showed a lack of due diligence in taking no action for two years.

occupied positions under temporary promotions for longer than two years. In a memorandum dated May 4, 1983, received by Casey on May 6, 1983, the Director officially advised him of the adverse action procedures to which he had been entitled upon his return to his position as Assistant Foreman some two years earlier. The memorandum stated that when an employee's temporary promotion is terminated after more than two years in the position, the employee is entitled to at least thirty days advance written notice specifying the reasons for proposing the termination of the promotion, a written decision and the right to appeal the action to the Board. The memorandum further stated that the issue Casey raised was believed to be untimely, but that if he disagreed, an appeal to the Board could be filed. Casey filed an appeal on May 27, 1983, twenty-one days after receiving this memorandum.

OPINION

This court has jurisdiction under 28 U.S.C. Sec. 1295(a)(9) to hear an appeal pursuant to 5 U.S.C. Sec. 7703(b)(1). Our standard of review is governed by 5 U.S.C. Sec. 7703(c) providing that we shall "hold unlawful and set aside any agency action, findings, or conclusions found to be (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 ...."

Casey argues that the Board's dismissal of his appeal must be reversed because of the agency's failure to inform him of the adverse action procedures at the time he was returned to his former position. Furthermore, he contends that he exercised due diligence in his attempt to determine his appeal rights. He alleges that he asked two agency managers about his rights and that they misled him by informing him that he had no appeal rights. Lastly, he argues that the agency has not demonstrated that it has been prejudiced in any way by the lack of timeliness of the appeal.

It is clear that Casey was entitled to at least thirty days advance written notice of his return to...