Strickland v. Merit Systems Protection Bd., 84-1344

• Decision Date: 23 November 1984
• Docket Number: No. 84-1344,84-1344
• Parties: Paul M. STRICKLAND, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 681

748 F.2d 681

Paul M. STRICKLAND, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent.

Appeal No. 84-1344.

United States Court of Appeals, Federal Circuit.

Nov. 23, 1984.

Paul M. Strickland, pro se.

Rita S. Arendal, Washington, D.C., for respondent.

Before BALDWIN, MILLER, and NIES, Circuit Judges.

PER CURIAM.

This appeal is from the decision of the Merit Systems Protection Board (MSPB or board), Docket No. DE34438210274, dismissing as untimely petitioner's petition for review of an MSPB initial decision. 20 M.S.P.R. 213. We reverse the dismissal based on untimeliness and affirm the initial decision dismissing the appeal of the agency action.

Background

Paul M. Strickland, a seasonally employed maintenance man with Minerals Management Service, Department of the Interior (agency), was placed on a nonduty, nonpay status on September 15, 1982. He filed a timely petition for appeal with the board's Denver Regional Office alleging that he had been furloughed without benefit of reduction-in-force (RIF) rights and in retaliation for whistleblowing activities. The petition named Charles W. Carter as his representative. On September 21, 1982, the Regional Director issued an order serving the agency with the petition and informing the parties of board procedure. The docket identification in the order's caption read "CASE NO. DE07528210274." Subsequent correspondence from the parties referenced this case number, as did two additional orders from the regional office of the board.

In a November 9, 1982 initial decision, designated "Case No. DE34438210274," the presiding official held that the board had no jurisdiction over the appeal. The presiding official determined that the agency's action could not be deemed an adverse action "furlough" under 5 U.S.C. Sec. 7511(a)(5), nor give rise to RIF appeal rights because the petitioner was a seasonal employee who was placed in a nonduty, nonpay status in accordance with conditions established and agreed to by petitioner at the time of his employment. Further, the presiding official said that allegations of prohibited personnel practices, such as whistleblowing activities, could not confer appellate jurisdiction upon the board. Under a heading entitled "FURTHER REVIEW RIGHTS" the first paragraph read:

This is an initial decision. It will become a final decision of the Merit Systems Protection Board on DEC 14 1982 unless a petition for review is filed with the Board or the Board reopens the case on its own motion.

On December 13, 1982 (i.e., one day before the 35 day time period for seeking review by the full board was to end), petitioner's representative wrote to the presiding official stating:

I am somewhat confused as to what case the initial decision refers to. Are there two separate cases or has Case No. DE07528210274 been changed to Case No. DE34438210274? I, therefore, request clarification so I may properly represent Mr. Strickland.

We see no indication in the record that the MSPB responded. By letter of January 12, 1983, petitioner appealed "the case of Paul M. Strickland v. Department of the Interior, cited as Case No. DE34438210274." The attached certificate of service contained a printed line for the case number on which was typed "DE34438210274 (DE07528210274)." On January 19, 1983, the MSPB notified petitioner that his petition for review did not appear to have been timely filed in accordance with 5 C.F.R.

Sec. 1201.115, but informed him that he could submit written argument showing good cause under Sec. 1201.113(d) for the apparent untimely filing. In a January 26, 1983 letter, petitioner said:

The Board failed to respond to Appellant's request for full clarification of 12/13/82, in regard to Case Numbers and initial decisions. The Board initially accepted Appellant's appeal of 9/15/82 as Case Number DE07528210274, but then rendered an initial decision on Case No. DE34438210274. Thus, no initial decision has yet to be rendered on case DE07528210274, nor does appellant have any knowledge of clarification thereof.

Finally, on April 2, 1984, the board issued its opinion and order dismissing as untimely the petition for review. The board reviewed three of the excuses advanced by petitioner to show good cause, and rejected each. The board opinion does not mention the point raised by petitioner that he was confused by the case number designated in the presiding official's initial decision.

Respondent now explains that the case was originally docketed as DE07528210274 but was later changed to DE34438210274 to designate an action not within the jurisdiction of the board. Although noting that the board itself was confused by the case number in handling a motion involving other cases in which the petitioner was a party, respondent rather casually argues that neither the case number change nor the excuses discussed in the board's opinion established good cause for waiving the time limit. We note that petitioner, acting pro se in his appeal to us, filed an informal brief. ¹

OPINION

Timeliness of a petition for review and extension for good cause are matters committed to the board's discretion. Sheeran v. MSPB, 746 F.2d 806 (Fed.Cir.1984); Phillips v. United States Postal Service, 695 F.2d 1389, 1390-91 (Fed.Cir.1982); 5 C.F.R. Sec. 1201.113(d) (1984). We reject respondent's argument relating to the case number change and hold that the board abused its discretion in not extending the 35 day time limit. This case is unlike Sheeran, Phillips, and Hopkins v. MSPB, 725 F.2d 1368 (Fed.Cir.1984). In those cases, this court concluded that the board had not abused its discretion in refusing to waive the regulatory time limit where a petitioner's attorney had lacked diligence in timely appealing or at least in properly securing an extension of time. Here, the change in case number first appeared (without any explanation) on the initial decision, the very decision from which petitioner had to file his petition for review. Under the circumstances, this case number change went to the heart of petitioner's right to seek review. Petitioner had review of other cases (with different docket numbers) pending before the board. And, although the MSPB office changed the docket number, the board never realized that there had been a case number change, never grasped that petitioner was raising the issue, and, of course, never addressed the issue in its decision on timeliness.

Even though we determine that dismissing the petition for untimeliness was error, the board could have decided that the petition should have nevertheless been denied for failing to meet either of the grounds stated in 5 C.F.R. Sec. 1201.115 (1984). Thus, we do not say that the board should have necessarily granted the petition.

Respondent also argues that judicial review by this court of the initial decision is barred. Respondent's premise is that the initial decision became final on December 14, 1982 (at the end of the 35 day time limit). Thus, the argument runs, because the petitioner had only 30 days thereafter to seek judicial review, but did not file an appeal until May 7, 1984, the appeal was untimely. We reject the premise and the conclusion.

Finality of an initial decision is governed by 5 C.F.R. Sec. 1201.113. ² We hold that where, as here, the board erred in dismissing the petition for review, the dismissal should be treated as a denial under su...