Shiflett v. U.S. Postal Service, No. 87-3391

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtBefore FRIEDMAN and MAYER, Circuit Judges, and SKELTON; SKELTON; MAYER
Citation839 F.2d 669
PartiesDiane C. SHIFLETT, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
Docket NumberNo. 87-3391
Decision Date08 February 1988

Page 669

839 F.2d 669
Diane C. SHIFLETT, Petitioner,
v.
UNITED STATES POSTAL SERVICE, Respondent.
No. 87-3391.
United States Court of Appeals,
Federal Circuit.
Feb. 8, 1988.

Edward L. Hogshire, Buck, Hogshire & Gouldman, Ltd., Charlottesville, Va., argued, for petitioner.

Robert A. Reutershan, Dept. of Justice, Washington, D.C., argued, for respondent. Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director, Robert A. Reutershan, Asst. Director and Hillary A. Stern, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., were on the

Page 670

brief, for respondent. Also on the brief were Stephen E. Alpern, Associate Gen. Counsel and Alice L. Covington, Office of Labor Law, U.S. Postal Service, Washington, D.C., of counsel.

Before FRIEDMAN and MAYER, Circuit Judges, and SKELTON, Senior Circuit Judge.

SKELTON, Senior Circuit Judge.

The final decision of the Merit Systems Protection Board (MSPB or Board), 33 M.S.P.R. 189, reversing the initial decision of the administrative judge, and holding that Diane C. Shiflett (petitioner) did not show good cause for waiver of time limit for filing a petition for appeal, and dismissing the appeal as untimely filed, is reversed and remanded.

Petitioner was a temporary trainee distribution clerk in the Charlottesville, Virginia, post office, when on July 14, 1978, she was removed from her position due to her inability to meet the physical demands of the position. She filed a claim for compensation benefits in June 1978, with the Office of Workers' Compensation Programs of the Department of Labor (OWCP). On June 6, 1985, the OWCP awarded her a lump sum payment covering the period from July 14, 1978, the date of her removal, to January 14, 1981, the date her physician stated she would be able to work. She orally contacted Mr. Tommy Thompson, personnel officer of the Charlottesville postal service, on May 19, 1985, and requested reinstatement. Mr. Thompson denied her request, but did not mention her appeal rights to the MSPB. On the same day she wrote a letter to Ms. Shirley McDonald, MSC/MGR Postmaster at Charlottesville asking to be reinstated. Ms. McDonald denied the request on May 19, 1985, in a letter of that date to petitioner. In her denial letter, Ms. McDonald did not mention any appeal rights available to petitioner from the decision denying her reinstatement. In particular, the decision letter did not advise petitioner of her right to appeal to the MSPB from the agency's denial of reinstatement under 5 C.F.R. Sec. 353.308(a), nor did it give petitioner notice of her appeal rights to the Board as required by 5 C.F.R. Sec. 1201.21. In fact, the denial letter did not in any way mention a possible appeal by petitioner nor advise her how to go about it. As discussed in detail below, this omission of duty by the United States Postal Service (respondent) was a violation of the regulations. Furthermore, the denial letter misled petitioner by telling her that she could not be reinstated more than three years after her separation on July 14, 1978.

After the respondent denied reinstatement of petitioner on May 29, 1985, petitioner, having no knowledge how to appeal the denial decision, sought help from Mr. Fred Goetz, who was the local shop steward of the American Postal Workers Union (APWU) to which petitioner belonged. Mr. Goetz, acting as the union representative of petitioner, filed a grievance for her under the applicable negotiated grievance procedure. This grievance was processed through steps one, two and three of the arbitration procedure and was denied at each step. The decision of respondent at step three of the grievance proceeding contained the following statement:

Specifically, 5 C.F.R. Sec. 353 via the MSPB remains the appropriate means of appeal regarding reinstatement rights of an individual who has incurred an occupational illness but who is now employable. This grievance is therefore denied.

Notice of this decision in the grievance proceeding was sent to the National Business Agent of the national office of the union in another state (Parkersburg, West Virginia) on August 19, 1985, and he forwarded a copy of the decision to the Charlottesville Local APWU on September 5, 1985. The union attempted to appeal the grievance to step four, but the arbitration committee ruled that it did not have jurisdiction under the negotiated grievance procedure and dismissed the appeal. Thereafter, on April 21, 1986, petitioner filed an appeal with the MSPB from the respondent's May 29, 1985, denial of her reinstatement request. In her appeal, petitioner alleged that she had good cause for her late filing and asked the Board to waive the time limit for filing the appeal.

Page 671

The case was referred to an administrative judge who found after a hearing that petitioner had shown good cause [under 5 C.F.R. Sec. 1201.12] for waiving the time limit [of 5 C.F.R. Sec. 1201.22(b) ] for filing the petition because the agency failed to provide petitioner with any notice of her appeal rights as required by 5 C.F.R. Sec. 353.308(a). The administrative judge reversed the decision of the agency and ordered it to make reasonable efforts to restore petitioner to a position for which she was qualified, taking into consideration her limitations as a partially recovered employee, together with back pay and benefits, if appropriate, in accordance with 5 C.F.R. Sec. 550.805.

The respondent petitioned the full Board for review of the initial decision. The Board reversed the decision of the administrative judge, with one member dissenting. The Board held that petitioner had failed to show good cause for a waiver of the time limit for filing a petition for appeal with the Board even though the Board admitted that the agency failed to provide petitioner with any notice of her right to appeal to the Board as required by 5 C.F.R. Sec. 353.308(a) and 5 C.F.R. Sec. 1201.21. The main thrust of the Board's decision was that petitioner was not diligent in filing her appeal until eight months after her union representative was given a copy of the above statement in the decision in the different grievance proceeding.

There can be no question that the regulations required the respondent to give petitioner a notice in writing of her right to appeal to the Board at the time the denial decision was issued, as provided in 5 C.F.R. Sec. 353.308(a), and further required it to comply with 5 C.F.R. Sec. 1201.21, and to send a copy of the notice to the Board. None of these requirements were complied with by the agency. 5 C.F.R. Sec. 353.308(a) provides:

Sec. 353.308 Notice of right to appeal.

(a) When an agency refuses to restore, or determines that it is not feasible to restore an employee under the provisions of law and this part, it shall notify the employee in writing of the reasons for its decision and of his or her right to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations. The agency shall comply with the provisions of Sec. 1201.21 of this title and shall forward a copy of the notice to the Board.

5 C.F.R. Sec. 1201.21 sets forth the contents of the notice that must be given to an employee under 5 C.F.R. Sec. 353.308(a) as to his or her appeal rights as follows:

Sec. 1201.21 Notice of appeal rights.

When an agency issues a decision notice to an employee on a matter appealable to the Board the agency shall provide:

(a) Notice of the time limits for appealing to the Board, the requirements of Sec. 1201.22(c), and the address of the appropriate Board office for filing the appeal;

(b) A copy or access to a copy of the Board's regulations;

(c) A copy of the appeal form set forth in appendix I of this part;

(d) Notice of any applicable rights to a grievance procedure; and

(e) Notice of the opportunity to request the voluntary expedited appeals procedure set forth at Secs. 1201.200 through 1201.222, including a description of the procedure, as set forth in the Attachment to the appeal form.

None of this information or material was given to petitioner by the agency.

The place and time for filing an appeal with the Board are set forth in 5 C.F.R. Sec. 1201.22 as follows:

Sec. 1201.22 Filing of petitions for appeal and response.

(a) Place of filing. Petitions and responses shall be filed at the appropriate Board regional office. (See Sec. 1201.4(e).)

(b) Time of filing. A petition for appeal must be filed during the period beginning with the day after the effective date of the action being appealed until not later than 20 days after the effective date. A petition for appeal from a final or reconsideration decision which does not set an effective date must be filed within 25 days of the date of the issuance

Page 672

of the decision. (See Sec. 1201.3(a), (5), (6), (7), (12), (13), (14), (15), (16), (17), and (18) of this Part for matters covered.) A response to a petition for appeal must be filed within 20 days of the date of the Board's acknowledgment order. The date of a filing by mail shall be determined by the postmark date; if no postmark date is evident on the mailing, it shall be presumed to have been mailed 5 days prior to receipt. If the filing is by personal delivery, it shall be considered filed on the date it is received in the regional office.

It will be noted that the above regulation provides, among other things, that an appeal from a final decision of an agency which does not set an effective date must be filed within 25 days of the issuance of the decision. If an effective date is contained in the decision, the appeal must be filed within 20 days of the issuance of the decision. The 25-day provision applies to the instant case, because no effective date was set...

To continue reading

Request your trial
32 practice notes
  • Democratic Nat'l Comm. v. Bostelmann, 20-cv-249-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 21 Septiembre 2020
    ...there is some reason to believe that the ballot was actually placed in the mail after election day. See Shiflett v. U.S. Postal Serv. , 839 F.2d 669, 672 (Fed. Cir. 1988) (discussing prior version of regulation when timing was triggered by mailing of appeal to the Merit Systems Protection B......
  • St. Bernard Parish Gov't v. United States, 2018-1204
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 15 Febrero 2019
    ...to provide correct notice of appeal rights constitutes good cause for a late filing."); Shiflett v. U.S. Postal Serv. , 839 F.2d 669, 674 (Fed. Cir. 1988) (same). That would allow St. Bernard to follow the congressionally dictated path of exhausting its administrative remedies and ulti......
  • Joyner v. Garrett, Civ. A. No. 90-92-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 26 Noviembre 1990
    ...initial decision, waiver requires a showing of "good cause" for the untimely filing. See Shiflett v. United States Postal Serv., 839 F.2d 669, 672 (Fed.Cir.1988); Harjo v. United States Postal Serv., 43 M.S.P.R. 336 (1990); Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.......
  • Hughes v. Moyer, No. 21,Sept. Term,2016
    • United States
    • Court of Special Appeals of Maryland
    • 24 Marzo 2017
    ...that otherwise would be time-barred. See Gonzalez v. Sullivan , 914 F.2d 1197, 1203 (9th Cir. 1990) ; Shiflett v. U.S. Postal Service , 839 F.2d 669 (Fed. Cir. 1988).5. Summary In our view, the plain language of SPP § 11–106(a)(5), its evident purpose to facilitate a fair process, and its l......
  • Request a trial to view additional results
32 cases
  • Democratic Nat'l Comm. v. Bostelmann, 20-cv-249-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • 21 Septiembre 2020
    ...there is some reason to believe that the ballot was actually placed in the mail after election day. See Shiflett v. U.S. Postal Serv. , 839 F.2d 669, 672 (Fed. Cir. 1988) (discussing prior version of regulation when timing was triggered by mailing of appeal to the Merit Systems Protection B......
  • St. Bernard Parish Gov't v. United States, 2018-1204
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 15 Febrero 2019
    ...2007) ("Failure to provide correct notice of appeal rights constitutes good cause for a late filing."); Shiflett v. U.S. Postal Serv. , 839 F.2d 669, 674 (Fed. Cir. 1988) (same). That would allow St. Bernard to follow the congressionally dictated path of exhausting its administrative remedi......
  • Joyner v. Garrett, Civ. A. No. 90-92-N.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 26 Noviembre 1990
    ...Supp. 563 initial decision, waiver requires a showing of "good cause" for the untimely filing. See Shiflett v. United States Postal Serv., 839 F.2d 669, 672 (Fed.Cir.1988); Harjo v. United States Postal Serv., 43 M.S.P.R. 336 (1990); Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.......
  • Hughes v. Moyer, No. 21,Sept. Term,2016
    • United States
    • Court of Special Appeals of Maryland
    • 24 Marzo 2017
    ...that otherwise would be time-barred. See Gonzalez v. Sullivan , 914 F.2d 1197, 1203 (9th Cir. 1990) ; Shiflett v. U.S. Postal Service , 839 F.2d 669 (Fed. Cir. 1988).5. Summary In our view, the plain language of SPP § 11–106(a)(5), its evident purpose to facilitate a fair process, and its l......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT