Stout v. Merit Systems Protection Bd.

• Decision Date: 23 November 2004
• Docket Number: No. 04-3127.,04-3127.
• Citation: 389 F.3d 1233
• Parties: Ken A. STOUT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

389 F.3d 1233

Ken A. STOUT, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

No. 04-3127.

United States Court of Appeals, Federal Circuit.

DECIDED: November 23, 2004.

Peter H. Noone, Avery Dooley Post & Avery, LLP, of Belmont, Massachusetts, argued for petitioner.

Raymond W. Angelo, Attorney, Office of the General Counsel, Merit Systems Protection Board, of Washington, DC, argued for respondent. With him on the brief were Martha B. Schneider, General Counsel, and Stephanie M. Conley, Reviewing Attorney. Of counsel was Joyce G. Friedman, Attorney.

Before MICHEL, CLEVENGER, and DYK, Circuit Judges.

MICHEL, Circuit Judge.

Ken A. Stout ("Stout") appeals the final decision of the Merit Systems Protection Board ("Board") dismissing his appeal as untimely filed, without a showing of good cause for the sixty-eight-day delay in filing. Stout v. Dep't of Treasury, No. SF-0752-03-0171-I-1, 95 M.S.P.R. 434 (M.S.P.B. Nov. 7, 2003) ("Final Order"); Stout v. Dep't of Treasury, No. SF-0752-03-0171-I-1 (M.S.P.B. Mar. 13, 2003) ("Initial Decision"). Given specific allegations and substantial evidence of mental illness, and conflicts between his and the government's evidentiary submissions, we conclude that Stout was entitled to an evidentiary hearing on his asserted incapacity to file his appeal by the deadline shown in his removal letter. Accordingly, we vacate and remand with instructions that the Board hold such a hearing.

BACKGROUND

Stout has suffered from cerebral palsy since birth. For some fifteen years, Stout worked at the San Bernardino, California branch of the Internal Revenue Service ("IRS" or "Agency") as a Revenue Agent. On August 8, 2002, the IRS informed Stout of his proposed removal. By letter dated September 12, 2002, he was removed from his position effective September 21, 2002. The removal letter enclosed a copy of the Board regulations, and specified that "[t]o be timely, an appeal to the Board must be filed anytime during the period beginning with the day after the effective date of this action and ending thirty (30) calendar days after that date." Stout's appeal was thus due no later than October 21, 2002.

Stout filed his appeal with the Board on December 28, 2002.¹ On the appeal forms Stout indicated that he wanted a hearing. Stout also explained the reason for the late filing as follows:

I went into a deep depression and the fact that I am disabled and lives alone just exaggerated matters. I relied on friends and family for support as I found it difficult to even get out of bed, not alone go to grocery shopping or fixed myself something to eat. I did not fill any important documents out timely; consequently I am currently living financially off friends and credit cards.²

As medical evidence of his condition, Stout attached an October 7, 2002 letter from his psychiatrist, stating he had been treating Stout at the Kaiser Permanente San Bernardino Psychiatry Clinic since June 5, 2002 and opining that Stout's "symptoms of depression and anxiety were caused by the stress at his work."

The Administrative Judge ("AJ") acknowledged receipt of Stout's appeal by order dated December 30, 2002 ("Acknowledgment Order"). The AJ explained that:

To establish that an untimely filing was the result of an illness, you must: (1) Identify the time period during which you suffered from the illness; (2) submit medical evidence showing that you suffered from the alleged illness during that time period; and (3) explain how the illness prevented you from timely filing your appeal or a request for an extension of time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).

On January 7, 2003, Stout again requested a hearing.³ On January 24, 2003, he submitted a written response to the Acknowledgment Order, stating:

At the time of Appellant's removal, he was diagnosed with severe depression and stress brought on by and exacerbated by his removal. During the three months following the removal, which took place on September 21, 2002, Appellant continually suffered from severe depression, insomnia, and anxiety. As a result of the insomnia, stress, anxiety, and depression, Appellant's motor skills were increasingly diminished. He suffered from difficulty and at times inability to walk, drive a vehicle, and conduct other daily affairs as a result of the exacerbated condition.

Stout maintained that these circumstances were beyond his control and "affected his ability to comply with the time limits set forth by the Board's procedures." Along with the written response, Stout filed Clinic Progress Records from Kaiser Permanente documenting his medical appointments between June 25, 2002 and December 16, 2002, and an Initial Evaluation Form from the Department of Psychiatry at Kaiser Permanente dated June 5, 2002.

The IRS responded on February 3, 2003, alleging that Stout's submission failed to establish that he still suffered from an illness during the relevant time frame, i.e., between October 21, 2002, the due date for Stout's appeal, and December 28, 2002, the date Stout actually filed his appeal. The Clinic Progress Records, the Agency argued, showed rather that Stout reported "feeling better" on November 6, 2002. Similarly, the Agency contended that on December 16, 2002, Stout's treating physician observed that he "goes gambling," "feels `good'," and has no complaints of depression.

The Agency further claimed that Stout's pro se activities during the period of delay show that he was not mentally or physically unable to timely file his appeal or to request an extension of time to do so. The Agency submitted an affidavit from an IRS Labor Relations Specialist, Colleen Blaikie ("Blaikie"), who testified that during the September to October 2002 time period, she had received several telephone calls from Stout, Marveen Stout (his mother), and Linda Gomez (his friend) ("Gomez"), regarding Stout's disability retirement and worker's compensation applications. The Agency also presented evidence that on November 16, 2002, Stout requested that the Office of Worker's Compensation Program ("OWCP") reconsider the denial of his benefits. The handwritten Request for Reconsideration, signed by Stout, explained that

[d]ue to my medical condition + medicine from physician for work related stress + termination, I have mentally not been able to complete any of the information or forms.

As of 11-16-02 I was finely in a condition with the necessary help from a friend and District Director to congress to complete all forms + request for my workman comp.

* * * * * *

The medication for my stress has not allowed me to be able to complete any of the necessary request or forms with out requesting help on my behalf. The additional termination from my federal job has added additional stress mentally and financially. I am under complete Doctor's care.

(Emphasis added). Based upon Stout's November 16 OWCP filing and his alleged admission to OWCP as to his improved condition, the Agency reasoned that Stout was able to file his appeal to the Board at least by November 16, 2002.

On February 14, 2003, Stout submitted additional materials, including a statement addressing the Agency's submissions, an affidavit from his mother, and affidavits from his friends and co-workers, Gomez, Jose Martinez, and J. Sheridan. Stout alleged that his removal from the IRS resulted in severe depression and stress, which exacerbated his cerebral palsy and rendered him "both physically and mentally unable to realize that there was a 30-day time frame to appeal the removal." In response to the Agency's assertions that "Appellant or persons acting on his behalf" contacted Blaikie regarding his removal and benefits, Stout represented that

[t]he research, contact and pursuit of these benefits were conducted by my friend, Linda Gomez, whose affidavit demonstrates the quantity of help that she provided and my mother, Marveen Stout. In addition, the fax sent granting the Agency permission to discuss the status of the claim was written by Marveen Stout and only signed by me. This information is verified by affidavit from each party. Linda Gomez also filed the workers compensation appeal on my behalf.

Similarly, the Gomez, Martinez, and Sheridan affidavits asserted that upon his termination from the IRS, Stout's mental condition deteriorated, leaving him unable to complete the disability retirement and worker's compensation forms without help from family and friends who performed all of the research necessary and actually wrote the submissions themselves.

On March 13, 2003, the AJ dismissed Stout's appeal as untimely, finding that Stout failed to show that "his physical and/or psychological condition(s) affected or impaired him to the point that he was unable to either file a timely appeal or request an extension of time within which to do so." Initial Decision at 6. The AJ reasoned that the medical evidence submitted neither showed the incapacitating impact of Stout's psychological condition on his ability to manage his affairs nor explained the severity of his symptoms throughout the entire period of delay.

The AJ further found that, given the substantial help Stout received from his mother and Gomez in completing and filing documents pertaining to his employment-related benefits, he "has not shown that he could not have asked for help in pursuing his Board appeal during the 30-day period after the removal was effected." Id. (citing Marquez v. Office of Pers. Mgmt., 54 M.S.P.R. 89, 91 (1992) (dismissing an untimely appeal, stating, inter alia, that appellant was not so incapacitated that he could not have asked for assistance in appealing his case)).

Most importantly, the AJ emphasized Stout's November 16, 2002 Request for Reconsideration to the OWCP as "significant circumstantial evidence" that he was not physically or mentally incapable of filing his appeal to the Board or requesting an extension of time to file the appeal from September 21 throu...