Barnes v. Merit Systems Protection Board , 625 F. App'x 996 ( 2015 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MCCARTHY BARNES, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2015-3018
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0357-I-1.
______________________
Decided: August 19, 2015
______________________
FREDERIC WILLARD SCHWARTZ, Law Office of Frederic
W. Schwartz, Jr., Washington, DC, argued for petitioner.
MICHAEL ANTON CARNEY, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC,
argued for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
2 BARNES v. MSPB
O’MALLEY, Circuit Judge.
McCarthy Barnes, Jr. (“Barnes”) appeals from the de-
cision of the Merit Systems Protection Board (“the Board”)
dismissing his petition for review as untimely filed with-
out a showing of good cause for the delay. Barnes v. Dep’t
of Defense, No. DC-0752-13-0357-I-1, 2014 MSPB LEXIS
6039 (M.S.P.B. Sept. 3, 2014) (“Final Order”). Because
the Board abused its discretion in reaching this decision,
we reverse.
BACKGROUND
Barnes was a police officer with the Pentagon Force
Protection Agency (“PFPA” or “the agency”) at the De-
partment of Defense. Barnes v. Dep’t of Defense, No. DC-
0752-13-0357-I-1, 2014 MSPB LEXIS 1069, at *1
(M.S.P.B. Feb. 21, 2014) (“Initial Decision”). The agency
removed him from that position effective February 8,
2013, based on a charge of “Conduct Unbecoming a PFPA
Police Officer.” Id. at *1-2. Barnes appealed his removal
to the Board. After holding a hearing, the administrative
judge (“AJ”) issued an initial decision affirming the agen-
cy’s removal action. Therein, the AJ informed Barnes
that the initial decision would “become final on March 28,
2014 unless a petition for review [wa]s filed by that date.”
Id. at *42.
On March 31, 2014—the Monday after the petition
was due—counsel for Barnes filed an untimely petition
and a pleading captioned “Non-Consent Motion for Leave
to File Appellant’s Petition One Business Day Late,
Petition Having Been Lodged.” Final Order, 2014 MSPB
LEXIS 6039, at *4. In that motion, counsel explained
that he completed the petition on March 28, 2014, and
assumed that the petition, which was 28 pages long,
complied with the Board’s filing requirements—30 pages
or 7,500 words, whichever is less. Counsel indicated,
however, that, when he performed a computer-generated
word count in final preparation for filing, he discovered
BARNES v. MSPB 3
that the petition substantially exceeded the Board’s 7,500-
word limitation. Id. Counsel explained that he immedi-
ately began editing the petition, but was unable to reduce
it to 7,500 words before midnight on March 28, 2014. Id.
Counsel attempted to electronically file the revised
petition on Saturday, March 29, 2014, and again on
Monday, March 31, 2014, but was unable to do so because
the Board’s e-Appeal system would not allow him to log
in. Id. Indeed, the Board concedes that the system was
experiencing technical difficulties on Saturday, March
29th and Monday, March 31st. Respondent’s Br. 4, n.2. 1
Counsel for Barnes ultimately filed the Petition and Non-
Consent Motion for Leave to File by hand-delivering it to
the Board’s headquarters on the morning of March 31,
2014. Final Order, 2014 MSPB LEXIS 6039, at *5.
On April 2, 2014, the Office of the Clerk of the Board
issued a letter acknowledging March 31, 2014 as the filing
date of the appellant’s petition for review. Joint Appendix
(“J.A.”) 76. The letter did not address the untimeliness of
the petition. The Board filed its response to the petition
for review on April 25, 2014, and Barnes ultimately filed a
reply on May 28, 2014.
On September 3, 2014, the Board issued a final order
dismissing Barnes’ petition for review as untimely filed.
The Board recognized that a “delay of 3 days is relatively
brief,” but found that Barnes “has not shown good cause
for his failure to meet the filing deadline.” Final Order,
2014 MSPB LEXIS 6039, at *6-7. First, the Board noted
that Barnes is represented by counsel who has practiced
before the Board and, thus, is on notice of the Board’s
practices and procedures. Although counsel for Barnes
1 According to the Board, these difficulties were due
to the high volume of furlough appeals filed at that time.
Id.
4 BARNES v. MSPB
conceded that “the delay was entirely his fault,” the Board
explained that “an appellant is responsible for the errors
of his chosen representative.” Id. at *8. The Board fur-
ther questioned how counsel could claim that he did not
realize the length issue until the last minute. Id. And,
the Board noted that counsel could have filed a motion for
extension of time on March 28, 2014. Id. at *8-9 (citing 5
C.F.R. § 1201.114(f) (“Motions for extensions must be filed
with the Clerk of the Board on or before the date on which
the petition or other pleading is due.”)).
Considering all of the circumstances, the Board dis-
missed the petition as untimely filed. The AJ’s initial
decision thus became the final decision of the Board with
respect to Barnes’ removal. Barnes timely petitioned this
court for review, and we have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless it was “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law;
(2) obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see Rocha v.
Merit Syst. Prot. Bd., 688 F.3d 1307, 1310 (Fed. Cir.
2012).
A petition for review of a Board decision must be filed
within 35 days of the decision’s issuance or within 30 days
of the petitioner’s receipt of the decision, if the petitioner
shows that he received the decision more than 5 days
after it issued. 5 C.F.R. § 1201.114(e). The Board will,
however, waive this time limit upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). “To
establish good cause for a filing delay, an appellant must
show that the delay was excusable under the circum-
stances and that the appellant exercised due diligence in
BARNES v. MSPB 5
attempting to meet the filing deadline.” Zamot v. Merit
Syst. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir. 2003).
The decision to waive the regulatory time limit is
committed to the discretion of the Board, and is reversed
only for abuse of that discretion. See Mendoza v. Merit
Syst. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc) (“[W]hether the regulatory time limit for an appeal
should be waived based upon a showing of good cause is a
matter committed to the Board’s discretion and this court
will not substitute its own judgment for that of the
Board.”). The petitioner bears a “heavy burden of estab-
lishing that the Board abused its discretion in finding
that he failed to show good cause for the delay in filing his
petition for review.” Zamot, 332 F.3d at 1377.
The issue on appeal is whether the Board abused its
discretion in finding that Barnes failed to show due
diligence or good cause for the delay in filing his petition
for review. The Board’s regulations do not provide any
specific criteria for determining when good cause has been
shown. We have recognized, however, that there are
several nonexclusive factors that may be considered,
including:
the length of the delay; whether appellant was no-
tified of the time limit or was otherwise aware of
it; the existence of circumstances beyond the con-
trol of the appellant which affected his ability to
comply with the time limits; the degree to which
negligence by the appellant has been shown to be
present or absent; circumstances which show that
any neglect involved is excusable neglect; a show-
ing of unavoidable casualty or misfortune; and the
extent and nature of the prejudice to the agency
which would result from waiver of the time limit.
Herring v. Merit Sys. Prot. Bd., 778 F.3d 1011, 1013-14
(Fed. Cir. 2015) (quoting Alonzo v. Dep’t of the Air Force, 4
M.S.P.R. 180, 184 (1980)); see also Walls v. Merit Sys.
6 BARNES v. MSPB
Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (“We previ-
ously have recognized the efficacy of the Alonzo factors in
good cause determinations by the Board.”). We have
explained that “excusable neglect” is “neglect that a
reasonably prudent person might manifest under the
circumstances.” Walls, 29 F.3d at 1582 (citation omitted).
Here, it is undisputed that the petition for review was
due on Friday, March 28, 2014. It is also undisputed that
counsel for Barnes hand-delivered the petition to the
Board’s headquarters on Monday, March 31, 2014. The
Board conceded that counsel was unable to access the e-
Appeal system from Saturday through Monday following
the Friday filing deadline, and determined that the filing
delay of 3 days was “relatively brief.” Final Order, 2014
MSPB LEXIS 6039, at *4-6. Notwithstanding the “brevi-
ty of the delay,” the Board found that, Barnes “ha[d] not
shown good cause for his failure to meet the filing dead-
line” because: (1) he is responsible for the errors of his
chosen representative; (2) counsel’s word count error “was
avoidable;” and (3) counsel failed to submit a motion for
an extension of time, which would have been timely filed
on March 28, 2014. Id. at *7-9.
We conclude that the facts of this case support a
finding of good cause to excuse the untimely filing. First,
although the Board characterized it as a 3-day delay,
Barnes’ petition was due on a Friday and it was the
Board’s own computer failures that prevented a filing the
next day. While the Board faults Barnes’ counsel for not
having resorted to traditional delivery methods on Satur-
day when he realized the computerized filing system’s
failures were not going to be timely corrected, we find that
position untenable. The Board has instituted an electron-
ic filing system which it requires all counsel to become
familiar with and employ. Requiring alternative efforts
on a Saturday once it was clear the Board was not going
to fix its filing system is not reasonable in these circum-
stances. We, thus, conclude that the filing was only one
BARNES v. MSPB 7
day late. That the delay was only one day does not neces-
sarily mean that it is excusable, however. See Skaggs v.
Merit Sys. Prot. Bd., 364 F. App’x 623, 627 (Fed. Cir.
2010) (affirming a Board decision that found a one-day
delay in filing was inexcusable where the delay was the
result of negligence).
It is well established that “[t]he appellant need not
show an utter impossibility, but only that the delay was
excusable in light of the particular facts and attending
circumstances where diligence or ordinary prudence has
been exercised.” Herring, 778 F.3d at 1014 (quoting
Anderson v. Dep’t of Justice, 999 F.2d 532, 534 (Fed. Cir.
1993)). Counsel for Barnes admitted to the Board that he
“should have considered both [the page limit and the word
count] requirements in tandem as he drafted the peti-
tion.” J.A. 82. When he realized that the petition was too
long, counsel began editing it to comply with the Board’s
regulations before filing. The undisputed evidence shows
that he tried to submit the petition via the Board’s e-
Appeal system both over the weekend and on Monday
morning, but was unable to do so because the system was
down. At oral argument, counsel for the Board conceded
that these attempts to electronically file the petition
showed signs of diligence. See Oral Argument at 16:53-
58, available at http://oralarguments.cafc.uscourts.
gov/default.aspx?fl=2015-3018.mp3 (“Certainly there were
signs of diligence. The attempts to e-file were signs of
diligence.”). And, when asked what would have happened
if counsel for Barnes had submitted the petition that
exceeded the word count on Friday, the Board’s counsel
explained that the Clerk of the Board would have rejected
it as non-compliant and given him additional time to
submit a compliant petition. Id. at 19:03-39. 2 Thus, it
2 At oral argument, counsel for the Board indicated
that “[t]he Clerk has the option to reject a noncomplying
8 BARNES v. MSPB
was counsel’s efforts to file a fully compliant petition that
rendered the petition one day late, and which the Board
believes can justify depriving Barnes of the opportunity to
have his petition considered.
Under these circumstances, given the minimal delay,
counsel’s attempts to bring the petition into compliance
with the Board’s regulations, the fact that the Board’s
preferred filing method was unavailable, and counsel’s
concession that a noncompliant filing would have given
Barnes additional time in which to file a compliant one,
we conclude that the delay was excusable. Although the
Board has discretion in determining whether there is good
cause for delay, “the principles of justice and good con-
science” weigh in favor of finding good cause for the delay
under the particular circumstances of this case. See
Walls, 29 F.3d at 1582; see also Jones v. Merit Sys. Prot.
Bd., 256 F. App’x 353, 356 (Fed. Cir. 2007) (applying “the
principles of justice and good conscience” and concluding
that the Board abused its discretion in finding an appeal
untimely where there was a one-month delay in filing, but
there were significant circumstances beyond the petition-
er’s control “that undoubtedly affected his ability to
supervise his attorney’s compliance with the filing dead-
line”).
CONCLUSION
For the foregoing reasons, because the Board abused
its discretion in concluding that there was no good cause
brief, so if it had looked at the brief and did a word count
and said this is way too long . . . they could have rejected
it and said you have two days to resubmit.” Oral Arg. at
19:19-39. And when asked whether filing the non-
compliant brief would have given counsel for Barnes “the
time to fix his word count,” the Board’s counsel responded
“if he had filed on Friday, Your Honor, yes.” Id.
BARNES v. MSPB 9
shown for the delay in filing, we reverse its decision and
remand for further proceedings.
REVERSED