Herring v. Merit Sys. Prot. Bd.
| Decision Date | 18 February 2015 |
| Docket Number | No. 2013–3170.,2013–3170. |
| Citation | 778 F.3d 1011 |
| Parties | Ramona Gill HERRING, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent. |
| Court | U.S. Court of Appeals — Federal Circuit |
OPINION TEXT STARTS HERE
Mathew B. Tully, Tully Rinckey PLLC, Washington, DC, argued for petitioner. Also represented by Steven L. Herrick.
Sara B. Rearden, Office of the General Counsel, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by Bryan G. Polisuk.
Before REYNA, WALLACH, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH. Dissenting opinion filed by Circuit Judge REYNA.
Petitioner Ramona Gill Herring (“Petitioner”) appeals a Final Order of the Merit Systems Protection Board (“MSPB” or “Board”), dismissing her appeal as untimely filed without good cause. Because, under the circumstances of this case, the MSPB abused its discretion in determining Ms. Herring had not demonstrated good cause for the untimely filing of her appeal, this court reverses.
In March 2010, Ms. Herring was removed from her position as a cytotechnologist with the Department of the Navy. After her removal, she filed an application for disability retirement benefits with the Office of Personnel Management (“OPM”), which was denied. Ms. Herring received the relevant OPM denial letter on July 14, 2012. Under the applicable regulations, the due date to file an appeal of the OPM denial was August 13, 2012. However, because her attorney's law office negligently failed to transmit to her attorney the documents submitted by Ms. Herring (while confirming to Ms. Herring that the necessary documents and payment had been received),1 Ms. Herring did not file the appeal until August 23, 2012. Thereafter, an administrative judge dismissed the appeal as untimely filed, and the MSPB affirmed. Ms. Herring timely appealed. This court has jurisdiction under 28 U.S.C. § 1295(a)(9) (2012).
It is undisputed that Ms. Herring's appeal was filed ten days late. “If a party does not submit an appeal within the time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22 (2012) (emphasis added). Consistent with this regulation, the MSPB acknowledges waivers may be granted “after considering all of the facts and circumstances of a particular case.” Herring v. Office of Pers. Mgmt., No. DC–844E–12–0778–I–1, at 3, 2013 WL 9678444 (M.S.P.B. July 1, 2013) (Resp't's App. 1–6) (“Final Order”).
The decision to waive the time limit to appeal to the Board is committed to the discretion of the Board, and is reversed only for abuse of that discretion. See Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed.Cir.1992) (en banc) (); see also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6–7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001); Hines v. Merit Sys. Prot. Bd., 163 Fed.Appx. 913, 914 (Fed.Cir.2006). The issue is therefore whether the MSPB abused its discretion in finding Ms. Herring failed to show good cause for the delay.
MSPB regulations do not provide criteria for determining when good cause has been shown for waiving the time limitation with respect to the filing of an appeal. See5 C.F.R. § 1201.12; id.§ 1201.22(c). Case law, however, provides nonexclusive criteria that may be considered. These include:
the length of the delay; whether appellant was notified of the time limit or was otherwise aware of it; the existence of circumstances beyond the control of the appellant which affected his ability to comply with the time limits; the degree to which negligence by the appellant has been shown to be present or absent; circumstances which show that any neglect involved is excusable neglect; a showing of unavoidable casualty or misfortune; and the extent and nature of the prejudice to the agency which would result from waiver of the time limit.
Alonzo v. Dep't of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180, 184 (1980) (footnotes omitted); see also Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed.Cir.1994) (); Smith v. Dep't of the Army, 105 M.S.P.R. 433, 433 (2007) (listing similar factors).
In its Final Order, the Board cited Alonzo and Smith and mentioned several of their factors, but did not systematically apply those factors to Ms. Herring's case. See Final Order 3–5. Indeed, most of the factors were not discussed at all. See id. The Board did, however, address several of these factors in its brief before this court.
In addressing one of these criteria, the MSPB in its brief asserts “Ms. Herring did not present any evidence to the Board that there were circumstances beyond her control.” Resp't's Br. 18. Ms. Herring had, however, executed a power of attorney authorizing agents of the federal government to “fully communicate with” her designated attorneys with respect to “any and all information ... deemed necessary” to her appeal. Resp't's App. 67. In addition, although OPM determined Ms. Herring had not proven a disability, the agency acknowledged “the evidence [Ms. Herring] submitted shows that [she has] medical conditions.” Id. at 69. Among Ms. Herring's claimed conditions were “[d]epression/[a]nxiety” and “[f]atigue.” Id. at 68. These circumstances are relevant when considering the reasonableness of Ms. Herring's actions or inactions. See, e.g., Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1357 (Fed.Cir.2009) ().
The MSPB acknowledges Ms. Herring's assertions that she contacted counsel substantially in advance of the deadline, submitted the required payment for legal services on August 7, 2012, and followed up by telephone on August 7 to ensure that payment and documentation had been received. Resp't's Br. 11; Pet'r's Br. 7, 13–14. The unusual facts of this case show Ms. Herring had done everything that could reasonably be expected of her and the failure to timely file was due to circumstances beyond her control. “The appellant need not show an utter impossibility, but only that the delay was excusable in light of the particular facts and attending circumstances where diligence or ordinary prudence has been exercised.” Anderson v. Dep't of Justice, 999 F.2d 532, 534 (Fed.Cir.1993) (quoting Alonzo, 4 M.S.P.R. at 184); see also Lamb v. U.S. Postal Serv., 68 M.S.P.R. 500, 502 (1995) ().
In arguing there were no circumstances beyond Ms. Herring's control, the MSPB states Ms. Herring could have “contacted her attorney between August 8, 2012, and August 13, 2012,” or “personally filed her appeal.” Resp't's Br. 19. It is true it is a party's “duty to monitor the progress of the appeal at all times.” Soleto v. Dep't of Agric., 58 M.S.P.R. 253, 256 n. 2 (1993). However, under the circumstances of this case, where the petitioner had relevant physical and psychological conditions, executed a power of attorney in favor of her legal representatives, completed all of the steps requested by counsel, and followed up by telephone a few days prior to the filing deadline, the duty to monitor did not require the petitioner to make additional telephone calls to counsel, within the short period prior to the deadline, in the absence of any indication whatsoever that additional steps were necessary. The MSPB acknowledges Ms. Herring's claim that she was reassured, just a few days before the filing deadline, that the appeal would be timely filed. See Resp't's Br. 11. These circumstances, taken together, indicate the actions and inactions of Ms. Herring's law firm “were misleading and deceptive in effect” and “ ‘misled and lulled’ ” Ms. Herring “ ‘into believing th[e] case was proceeding smoothly.’ ” Crawford v. Dep't of State, 60 M.S.P.R. 441, 446 (1994) (quoting Dabbs v. Dep't of Veterans Affairs, 56 M.S.P.R. 57, 60 (1992)).
For similar reasons, although a party could personally file an appeal, it is not reasonable to expect a party to do so under the circumstances of this case. In Crawford, the MSPB found the appellant had established good cause for a filing made twenty-three days late notwithstanding that repeated phone calls made by the appellant to her attorney had not been returned. 60 M.S.P.R. at 445. In Soleto, the MSPB found important “the fact that the petition was returned to [the appellant]” which “should have put him on notice that some additional action was necessary.” 58 M.S.P.R. at 256. In Dabbs, the MSPB found good cause, 56 M.S.P.R. at 60, even though “counsel's apparent nonchalance regarding [the filing deadline]” could have indicated to the appellant the need to “file[ ] the petition himself,” id. at 61 (Levinson, dissenting). Unlike these cases where the returned petition, failure to return phone calls, or an attorney's nonchalance might have alerted the claimant to the attorney's negligence and suggested a need for personal filing, Ms. Herring's interactions with her attorney provided no indication that additional action on her part was needed. See Pet'r's App. 38.
The MSPB asserts the well-settled rule that “a petitioner is responsible for the errors of her chosen representative.” Resp't's Br. 19; see also Green v. Merit Sys. Prot. Bd., 232 F.3d 912, 2000 WL 369683, at *1 (Fed.Cir.2000) (unpublished) (...
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