Johnson v. Department of Treasury, No. 83-684

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore MARKEY, Chief Judge, and DAVIS and SMITH; DAVIS
Citation721 F.2d 361
PartiesJames W. JOHNSON, Petitioner, v. DEPARTMENT OF the TREASURY, Respondent. Appeal
Docket NumberNo. 83-684
Decision Date18 November 1983

Page 361

721 F.2d 361
James W. JOHNSON, Petitioner,
v.
DEPARTMENT OF the TREASURY, Respondent.
Appeal No. 83-684.
United States Court of Appeals,
Federal Circuit.
Nov. 18, 1983.

Page 362

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.

DAVIS, Circuit Judge.

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.

I

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

Page 363

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.

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16 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...This is believed to be entirely consistent with Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962); Johnson v. Department of the Treasury, 721 F.2d 361 (Fed Cir. 1983). Similarly, the practitioner's obligation not to prejudice the interests of the client is subject to the duty of candor towar......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...This is believed to be entirely consistent with Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962); Johnson v. Department of the Treasury, 721 F.2d 361 (Fed Cir. 1983). Similarly, the practitioner's obligation not to prejudice the interests of the client is subject to the duty of candor towar......
  • Shiflett v. U.S. Postal Service, No. 87-3391
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 8, 1988
    ...although not petitioner's designated union representative, is equivalent to receipt by petitioner); Johnson v. Department of Treasury, 721 F.2d 361, 365 n. 10 (Fed.Cir.1983); see Link v. Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962). In any event, the ......
  • Weston v. U.S. Dept. of Housing and Urban Development, No. 83-859
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 30, 1983
    ...with the aim of ascertaining when the representation reflects the best interest of each party. Johnson v. Department of the Treasury, 721 F.2d 361 at 365 The decision of the MSPB is accordingly affirmed. AFFIRMED. ...
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14 cases
  • Shiflett v. U.S. Postal Service, No. 87-3391
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • February 8, 1988
    ...although not petitioner's designated union representative, is equivalent to receipt by petitioner); Johnson v. Department of Treasury, 721 F.2d 361, 365 n. 10 (Fed.Cir.1983); see Link v. Wabash Railroad Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390-91, 8 L.Ed.2d 734 (1962). In any event, the ......
  • Weston v. U.S. Dept. of Housing and Urban Development, No. 83-859
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 30, 1983
    ...with the aim of ascertaining when the representation reflects the best interest of each party. Johnson v. Department of the Treasury, 721 F.2d 361 at 365 The decision of the MSPB is accordingly affirmed. AFFIRMED. ...
  • Bowen v. Department of Transp., F.A.A., Nos. 83-799
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • July 31, 1985
    ...attorney." Smith v. Ayer, 101 U.S. 320, 326 [25 L.Ed. 955]. Id. at 634, 82 S.Ct. at 1390. In Johnson v. Department of the Treasury, 721 F.2d 361, 365, (Fed.Cir.1983), this court applied that Supreme Court guidance to petitions for review of final decisions of the Wolin's main briefs no......
  • Amin v. Merit Systems Protection Bd., Nos. 91-3271
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 17, 1991
    ...actions of his representative. Rowe v. Merit Sys. Protection Bd., 802 F.2d 434, 437 (Fed.Cir.1986); Johnson v. Department of Treasury, 721 F.2d 361, 365 (Fed.Cir.1983). An attorney retained for litigation purposes is presumed to possess express authority to enter into a settlement agreement......
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