Turner v. Merit Systems Protection Bd.
| Decision Date | 24 November 1986 |
| Docket Number | 86-968,Nos. 86-967,s. 86-967 |
| Citation | 806 F.2d 241 |
| Parties | Eugene P. TURNER, Petitioner, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Alonzo MICKENS and Michael A. Ashe, Petitioners, v. MERIT SYSTEMS PROTECTION BOARD, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Phillip R. Kete, Washington, D.C., for petitioner.
David C. Kane, Merit Systems Protection Bd., Washington, D.C., for respondent; on the brief were Llewellyn M. Fischer, Acting Gen. Counsel, Mary L. Jennings, Assoc. Gen. Counsel for Litigation and Rita S. Arendal, Merit Systems Protection Bd., Washington, D.C.
Before FRIEDMAN and BALDWIN, Circuit Judges, and MILLER, Senior Circuit Judge.
The petitioners challenge decisions of the Merit Systems Protection Board (Board) that dismissed their appeals from a reduction in force at the Community Services Administration as untimely filed. We affirm.
The petitioners Mickens and Ashe are former employees of the Community Services Administration who were removed from their positions by a reduction in force on September 30, 1981. The petitioner Turner is a former Community Services Administration employee who retired in lieu of being separated through the reduction in force.
The reduction in force resulted from the abolition of the Community Services Administration and the transfer of some of its functions to a new agency within the Department of Health and Human Services, the Office of Community Services (new agency). The background facts relating to the abolition of the Community Services Administration and the subsequent reduction in force are detailed in Certain Former CSA Employees v. Department of Health and Human Services, 762 F.2d 978 (Fed.Cir.1985) (Former CSA Employees ), and need not be repeated here. Briefly, the facts relating to this appeal are as follows:
In notifying each of the petitioners that he would be separated effective September 30, 1981, the Community Services Administration included a notice that any appeal to the Board had to be filed within 20 days of the proposed separation. Although the petitioners did not file individual appeals within this 20-day period, six other employees timely filed a petition to the Board pursuant to 5 C.F.R. Sec. 1201.27. Those six employees requested the Board to hear their appeals as representatives of the class of former Community Services Administration employees who were separated in the reduction in force. All three petitioners were members of the proposed class.
The Board denied class action certification on February 12, 1982, but granted limited consolidation for purposes of discovery and adjudication of common issues of law and fact. The Board stated that an employee normally cannot rely on the filing of a class action as a reason for failing to file a timely individual appeal. Nonetheless, the Board recognized that in an earlier district court decision, National Council of CSA Locals v. Schweiker, 526 F.Supp. 861 (D.D.C.1981), the court had stated that any employee who was dissatisfied with the determination regarding functions transferred from the Community Services Administration would have a right to appeal to the Board, and that some employees might have delayed filing individual appeals in reliance on the district court decision. The Board therefore ordered the Department of Health and Human Services to notify all former Community Services Administration employees who had been separated by the reduction in force that individual appeals had to be made "to the appropriate regional offices of the Board no later than 20 days after the receipt of the HHS notification."
On March 5, 1982, the petitioners (and the other Community Services Administration employees who were separated in the reduction in force) were notified of their appeal rights to the Board. The notice stated:
[I]f you wanted to appeal but did not, [the Board] has now advised you that you must file an appeal with the Board no later than 20 days after you receive this notification.
Despite this notice, the petitioners did not file individual appeals within 20 days. More than three years later, on May 20, 1985, this court affirmed the Board's 1982 decision denying class certification. Former CSA Employees, 762 F.2d at 986.
More than two months thereafter, on July 26, 1985, petitioner Turner filed an individual appeal with the Board. Almost six months thereafter, on November 8, 1985, petitioners Mickens and Ashe filed individual appeals with the Board.
In response to the presiding official's order directing the petitioners to show cause why their appeals should not be dismissed as untimely, all three of the petitioners argued that the time limit for filing an individual appeal was tolled from the filing of the proposed class action until all possible appellate mechanisms for the review of a decision denying class certification had been exhausted, and that there had been no such exhaustion because one of the original proposed class representatives intended to seek Supreme Court review of this court's decision affirming the Board's denial of class certification. In addition, Turner asserted that he had not filed an earlier appeal because he reasoned that the Board was controlled by the same agency that had forced him to retire.
The presiding official in the Turner appeal held that Turner had not justified his failure to file an appeal for more than three years after he was given explicit notice, following the denial of class certification, that he had to file an appeal within 20 days. The presiding official stated:
I find that the appellant has shown circumstances that would reasonably excuse his untimely filing from September 30, 1981, when he involuntarily retired, until March of 1982, when he was informed of his appeal rights to the Board.... I find, however, that the appellant has not shown circumstances that would reasonably excuse his delay in filing an appeal from March of 1982 to July of 1985. The evidence ... shows that the appellant was provided actual notice of his right ... to appeal ... in March of 1982.
Because Turner failed "to exercise his appeal rights for more than three years after receiving actual notice of his right to appeal to the Board," the presiding official dismissed Turner's appeal as untimely filed. The presiding official also rejected as a justification for failing to file a timely appeal Turner's contention that the Board was controlled by the same administration as the agency that allegedly forced Turner to retire.
The presiding official in the Mickens and Ashe appeal likewise rejected the contention that the time limits had been tolled so as to make those petitioners' appeals timely. The presiding official noted that the Board's class action regulations did not explicitly provide for tolling of the time limits for filing individual appeals. Moreover, like the presiding official in the Turner appeal, the presiding official in the Mickens and Ashe appeal concluded that although the time limit for filing an appeal could have been suspended prior to the denial of class certification, after class certification was denied the petitioners were given clear notice that individual appeals had to be filed within 20 days. Since the petitioners waited more than three years after this notification to file their appeals, the presiding official dismissed the appeals as untimely.
None of the petitioners sought review of the presiding officials' decisions by the full Board. Accordingly, the initial decisions became the final decisions of the Board pursuant to 5 C.F.R. Sec. 1201.113.
Under the Board's regulations, appeals must ordinarily be filed within 20 days of the contested agency action. 5 C.F.R. Sec. 1201.22(b). Appeals filed thereafter will be dismissed as untimely, unless the Board waives the filing deadline for good cause shown. See 5 C.F.R. Secs. 1201.22 and 1201.56(a)(2).
The petitioners contend that their time for appeal was tolled during the pendency before this court of Former CSA Employees, in which the Board's denial of class action certification was challenged and upheld. They contend that the time for appeal was further tolled until the time for seeking Supreme Court review of our decision expired. They point to a November 13, 1985 statement by one of the six former Community Services Administration employees who had timely appealed to the Board and whose individual appeal the Board had denied, that it was her "present intention to seek U.S. Supreme Court review of the Federal Circuit Court of Appeals' decision upholding the MSPB denial of my class action motion" although she recognized that she was not "certain that [she] will in fact have the resources to pursue the case at [the] U.S. Supreme Court level."
On the basis of the foregoing arguments, the petitioners contend that their petitions were timely filed. Alternatively, they argue that if their appeals were untimely, the Board erred in refusing to waive the time limits.
A. 1. When the Board denied class action certification on February 12, 1982, it recognized that some former Community Services Administration employees may have delayed filing individual appeals in reliance on the district judge's statement in National Council of CSA Locals v. Schweiker, 526 F.Supp. 861 (D.D.C.1981), that any former Community Services employee who was dissatisfied with the determination regarding functions transferred from the Community Services Administration would have a right to appeal to the Board. The Board therefore directed that all former Community Services Administration employees should be informed of their right to appeal to the Board. Although the three petitioners received a March 5, 1982 notification that individual appeals to the Board had to be filed within 20 days, petitioner Turner did not file his individual appeal until July 26, 1985, and petitioners Mickens and Ashe did not file their individual appeals until ...
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