Miller v. Department of Army

• Decision Date: 02 March 1993
• Docket Number: No. 92-3396,92-3396
• Citation: 987 F.2d 1552
• Parties: Charlotte A. MILLER, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1552

987 F.2d 1552

Charlotte A. MILLER, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.

No. 92-3396.

United States Court of Appeals Federal Circuit.

March 2, 1993.

Donald B. Potter, Portland, OR, submitted for petitioner.

Virginia M. Lum, Dept. of Justice, Washington, DC, submitted for respondent. Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, Martha H. DeGraff, Asst. Director and Scott E. Ray, Atty., Commercial Litigation Branch, Dept. of Justice, Washington, DC, were on the brief for respondent. Of counsel was Steven L. Schooner, Dept. of Justice. Also on the brief was Dana K. Chipman, Office of the Judge Advocate Gen., Dept. of the Army, of counsel.

Before MAYER, PLAGER, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

Charlotte A. Miller petitions for review of the April 2, 1992 final decision of the Merit Systems Protection Board, 53 M.S.P.R. 471, Docket Nos. SE531D8810564 and SE07528810565, dismissing her mixed-case appeal as untimely filed. Because the Board erred in determining that 5 U.S.C. § 7702(f) (1988) was not applicable to her appeals, we reverse.

BACKGROUND

Ms. Miller was employed as a Military Personnel Clerk, GS-05, with the United States Army Reserve Forces School, Vancouver Barracks, Vancouver, Washington ("the agency"). On March 21, 1988, she was denied a within-grade increase (WGI) because her performance was not considered acceptable by the agency. Additionally, Ms. Miller was given notice by the agency of a proposal to remove her from her position for making false statements.

Following Ms. Miller's request for reconsideration, the agency issued a Notice of Decision on May 16, 1988 sustaining the denial of her WGI. On the same day, the agency also notified her of its decision to remove her from employment, effective June 2, 1988. Ms. Miller received both Notices on May 28, 1988. Each of them contained a statement informing her of her appeal rights. The Notice on her request for reconsideration of the WGI denial stated:

You may appeal this action to the Merit Systems Protection Board. If you elect to appeal, your appeal must be addressed to the Merit Systems Protection Board, Room 1840, 915 Second Avenue, Seattle, WA 98174. Your appeal must: (1) be in writing and (2) be in two copies. ... Your appeal must be filed with the Seattle Regional Office, Merit Systems Protection Board, not later than twenty calendar days after the date of your receipt of this decision. ¹

The Notice concerning her removal included a similar statement and properly advised her that her appeal must be filed with the Board's regional office "not later than twenty calendar days after the effective date of this action," i.e., not later than June 22, 1988. 5 C.F.R. § 1201.22(b) (1992).

Ms. Miller subsequently retained legal counsel to assist her in appealing these actions. Her attorney completed the Board's appeal forms for both actions and they were mailed on June 17, 1988, before the expiration of the respective filing periods. However, they were erroneously mailed to the agency instead of to the Board's Seattle Office due to an error on the part of Ms. Miller's attorney's staff. On September 15, 1988, after discovering that the Board never received the appeal forms, the attorney immediately mailed copies to the Board. The Board's regional office did not receive the forms until September Ms. Miller was advised by the Administrative Judge (AJ) that her appeals appeared untimely and was provided with an opportunity to show that they were timely filed or that good cause existed for the untimely filings. In appealing both actions, she had claimed that the agency discriminated against her on the basis of sex and a handicap condition, making these "mixed" cases. ² She thus asserted that her mixed-case appeals were timely filed under 5 U.S.C. § 7702(f) because she filed them with the agency before the close of the filing periods. The AJ, however, found that section 7702(f) was not applicable because the evidence did not support Ms. Miller's claim that the delay was caused by confusion regarding where to file. Accordingly, the AJ dismissed the appeals as untimely filed. ³ The AJ's initial decision was sustained by the Board on review. Miller v. Department of the Army, 43 M.S.P.R. 228 (1990).

19, 1988, nearly three months after the filing deadlines.

Ms. Miller petitioned for review by this court. By order dated October 31, 1990, we granted the Board's uncontested motion to remand the case to the Board for further proceedings and reconsideration. Miller v. Department of the Army, No. 90-3237 (Fed.Cir. Oct. 31, 1990). On remand, the Board vacated its previous decision and upheld the AJ's initial decision, as modified, to dismiss the appeals. The Board determined that Ms. Miller did not "file" her appeals with the agency within the meaning of section 7702(f) because she did not intend to initiate an adjudication with the agency under the mistaken belief that the agency was the proper forum for her appeals. Rather, the Board found that Ms. Miller intended to file her appeals with the Board and that the appeals were erroneously mailed to the agency. Hence, in a split decision, the Board concluded that 5 U.S.C. § 7702(f) was not applicable because "the untimeliness of the apellant's [sic] appeals resulted from mailing error rather than from delays due to her having filed an appeal with the wrong agency." On petition to this court, Ms. Miller argues that the Board erred in concluding that section 7702(f) is not applicable to her appeals.

DISCUSSION

We review final decisions of the Board pursuant to the standards enumerated in 5 U.S.C. § 7703(c) (1988). Those decisions must be upheld unless they are judged to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. See True v. Office of Personnel Management, 926 F.2d 1151, 1153 (Fed.Cir.1991); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed.Cir.1984).

Section 7702, Title 5 of the United States Code, applies to cases involving any personnel action that is appealable to the Board by a federal employee who alleges that a basis for the action was unlawful discrimination. Under the statutory procedures established for such mixed cases, an aggrieved employee may either file an appeal with the Board, 5 U.S.C. § 7702(a)(1) (1988), or seek relief from the agency involved, 5 U.S.C. § 7702(a)(2) (1988). See also Spears v. Merit Sys. Protection Bd., 766 F.2d 520, 523 (Fed.Cir.1985). Additionally, section 7702(f) provides that

[i]n any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action appeal, or petition as of the date it is filed with the proper agency.

5 U.S.C. § 7702(f) (1988).

In deciding that section 7702(f) was not applicable to Ms. Miller's appeals, the Board too narrowly interpreted the statute's terms and severely restricted its scope by focusing on the cause of the employee's mistaken filing. The Board construed the provision as covering only an employee who had an intent to initiate an adjudication with the wrong agency under the mistaken belief that it was the proper forum to decide his or her case. Thus, according to the Board, an employee must have been legitimately mistaken or confused as to where to file his or her appeal in order for section 7702(f) to be applicable. Under that construction, mistaken filing as the result of inadvertent error, as in the instant case, falls outside the scope of the statute. We do not read the statute so narrowly.

The first step in interpreting a statute is to look to its language. MCI Telecommunications Corp. v. United States, 878 F.2d 362, 365 (Fed.Cir.1989). It is a long-standing rule of statutory construction that courts must treat the plain language of a statute as controlling absent clear legislative intent to the contrary. See Johns-Manville Corp. v. United States, 855 F.2d 1556, 1559 (Fed.Cir.1988), cert. denied, 489 U.S. 1066, 109 S.Ct. 1342, 103 L.Ed.2d 811 (...