Hamilton v. Merit Systems Protection Bd.

• Decision Date: 26 January 1996
• Docket Number: No. 94-3195,94-3195
• Citation: 75 F.3d 639
• Parties: Kim L. HAMILTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 639

75 F.3d 639

Kim L. HAMILTON, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 94-3195.

United States Court of Appeals, Federal Circuit.

Jan. 26, 1996.

Kim L. Hamilton, Sterling, Virginia, submitted Pro Se.

Lee A. Black, Arlington, Virginia, was on the brief Amicus Curiae in support of petitioner.

Eric D. Flores, Attorney, Merit Systems Protection Board, of Washington, D.C., submitted for respondent. With him on the brief were Mary L. Jennings, Acting General Counsel and Martha B. Schneider, Assistant General Counsel.

Peter B. Broida, of Arlington, Virginia, was on the brief for Amicus Curiae, Federal Circuit Bar Association. Of counsel was Kenneth J. Nunnenkamp, Finnegan & Henderson, Washington, D.C.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Assistant Director and Agnes M. Brown, Attorney, Commercial Litigation Branch, Department of Justice, Washington, D.C., were on the brief for Amicus Curiae, United States Postal Service.

Before PLAGER, Circuit Judge, NIES, Senior Circuit Judge ^*, and RADER, Circuit Judge.

NIES, Senior Circuit Judge.

I.

The appeal of Kim L. Hamilton to the Merit Systems Protection Board, Docket No. DC-0752-93-0669-I-1 (January 5, 1994), was dismissed sua sponte by the Administrative Judge for untimely filing. The full Board refused to consider Hamilton's petition for review accompanied by evidence showing her appeal was timely. Because of serious questions regarding the Board's procedures and ruling on timeliness, the panel requested additional briefing on the following issues May the Merit Systems Protection Board, sua sponte, raise the issue of the untimeliness of an appeal to the Board taken pursuant to 5 U.S.C. § 7701(a), or is untimeliness an affirmative defense which is waived if not raised by the Agency? Please discuss which party should have the burden of proof regarding the timeliness of the appeal. Please also discuss the legal basis, if any, for the Board's current practice of raising untimeliness sua sponte, and 5 C.F.R. § 1201.56(a)(2) (1993), which places the burden of proof regarding timeliness on the Appellant. ¹

For the reasons set forth below, we hold that the MSPB may raise the issue of timeliness. However, Hamilton was denied a fair opportunity to establish that her appeal was timely, and we hold that the dismissal of Hamilton's appeal for untimeliness was arbitrary. 5 U.S.C. § 7703(c) (1988). ² Accordingly, we reverse and remand for consideration of the merits of her case.

II. BACKGROUND

Kim Hamilton worked as an Air Traffic Control Specialist for the Federal Aviation Administration ("the FAA"). In 1989, Hamilton was receiving training for her position at the Washington ARTC Center in Leesburg, Virginia. Despite completing maximum training, Hamilton was declared a training failure on April 23, 1990. Her removal was effected on May 17, 1991.

Shortly after her removal, Hamilton filed a complaint of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that her removal resulted from sex discrimination and as reprisal for two earlier filed complaints. The earlier complaints also alleged sex discrimination. The EEOC dismissed Hamilton's case because her charge of discrimination was asserted in connection with her termination, a personnel action appealable to the MSPB. As noted in its order of dismissal, under 29 C.F.R. § 1614.302(d), an individual who elects to file a mixed case, that is, one seeking to overturn an adverse personnel action on the ground of discrimination, must first proceed before the employing agency and the MSPB. Accordingly, the case was sent to the FAA for investigation and decision.

The FAA issued a final decision on June 21, 1993, concluding that Hamilton had not been the victim of discrimination. The letter accompanying the decision correctly stated, "Within 20 days of your receipt of this final decision, you have the right to appeal this decision to the [MSPB]." (Emphasis added.)

Hamilton's appeal papers were mailed by certified mail to the Board on August 13, 1993. Upon receipt, the AJ issued a lengthy form letter designated an "Acknowledgement Order" containing directives to both parties on procedures to be followed, as discussed more fully hereinafter, and advising that failure to follow the AJ's orders could result in the imposition of sanctions under 5 C.F.R. § 1201.43 (1991). As part of the Order, the AJ sua sponte questioned the timeliness of the appeal without, however, providing information respecting the dates on which the AJ relied and ordered Hamilton to submit evidence and argument to establish that her appeal was timely or that good cause existed for the delay.

Hamilton timely responded to the above Order on August 30, 1993, supplying a copy of the Certified Mail receipt showing that she had mailed her appeal on August 13, 1993. However, she did not submit evidence showing when she received the FAA's decision, nor did she ask for a waiver of the time limit for good cause. The FAA filed a very brief On September 29, 1993, the AJ issued his decision, dismissing Hamilton's appeal for untimeliness. The AJ ruled that Hamilton had not proved when she received the FAA's decision and that it was "reasonable to presume" that appellant received it on June 26, 1993, five days after the date of the decision. Under this rationale, her appeal filed on August 13, 1993, was late and he dismissed her case.

conclusory response asserting only that Hamilton had not met her burden of proving her appeal was timely filed and requested dismissal of her case.

Upon receiving the above ruling, Hamilton promptly sought to obtain a copy of the postal form from the post office showing when she signed for the copy of the FAA's decision. The post office supplied a copy showing her receipt on July 26, 1993, not June 26, 1993. She then submitted the postal form and requested the AJ to review the evidence and reinstate the appeal, arguing that the Agency had failed to act in good faith in seeking dismissal when it had the original receipt and knew, or should have known, her appeal was timely. The submission was docketed as a petition for review by the full Board.

The FAA opposed further review on the ground that the petition did not satisfy the criteria for full board review under 5 C.F.R. § 1201.115(c). Particularly, the applicable regulation provides for review where

(1) New and material evidence is available that, despite due diligence, was not available when the record closed.

The FAA argued that the postal receipt was not new evidence within the meaning of the regulation, that it had not acted in bad faith because it was not required to respond or furnish evidence on timeliness, and that if Hamilton had needed more time to obtain the document to submit it to the AJ, she should have requested an extension of time. Also, she could have requested the postal receipt from the FAA and did not. Thus, the FAA argued, Hamilton did not exercise due diligence. The FAA never furnished the original postal receipt which it had or should have had in its file. ³

The full Board denied the petition for failure to meet the standard of new evidence required for its review, and this appeal followed.

III. JURISDICTION OF THIS COURT

This court has jurisdiction over this appeal pursuant to 5 U.S.C. § 7703(b)(1). While this court has no jurisdiction to review the merits of a mixed case, Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983) (in banc ), the court will entertain an appeal from the MSPB in any case where the complaint was dismissed on the grounds of untimely filing of the employee's complaint to the MSPB. Wallace v. Merit Sys. Protection Bd., 728 F.2d 1456, 1458 (Fed.Cir.1984). In such appeals, the MSPB, as the acting agency, is named respondent rather than the petitioner's employing agency. See Amin v. Merit Sys. Protection Bd., 951 F.2d 1247 (Fed.Cir.1991). Thus, we have jurisdiction over the subject appeal which raises only timeliness issues.

IV. TIMELINESS

The timeliness of Hamilton's appeal, which involves allegations of discrimination, is governed by 5 C.F.R. § 1201.154 (1993). ⁴ That regulation states in pertinent part:

Appellants who file appeals raising issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits:

(b) If the appellant has filed a timely formal complaint of discrimination with the agency:

(1) An appeal must be filed within 20 days [now 30] after the appellant receives In the event that an appeal to the Board is untimely filed, section 1201.22(c) provides that the appeal "will be dismissed as untimely filed unless a good reason for the delay is shown."

the agency resolution or final decision on the discrimination issue;

This regulation was issued pursuant to 5 U.S.C. § 7701(j) (1988) which provides that the MSPB "may prescribe regulations to carry out the purpose of this section." As this court stated in Phillips v. United States Postal Service, 695 F.2d 1389, 1390-91 (Fed.Cir.1982), the Board has discretion to "requir[e] that appeals be processed in accordance with regulations prescribed by the Board."

Regulatory Procedure or Affirmative Defense?

The issue of the timeliness of an appeal to the Board has had a surprisingly complex and tortuous history. In its earliest decisions, the Board considered a timely appeal necessary to establish the Board's jurisdiction. See, e.g., Butler v. Department of Interior, 9 MSPB 305, 10 M.S.P.R. 25 (1982) (vacating initial decision and remanding case for hearing on "the jurisdictional issue" of the timeliness of the petition). Thus, it followed that the Board could, indeed, was obligated to raise the timeliness issue sua sponte and to place the burden on the appellant to prove timeliness as with any other jurisdictional issue. See Hambsch v. United States, 857 F.2d 763, 764-65 (Fed.Cir.1988), ...