Guel v. Merit Systems Protection Board ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3036
DAVID M. GUEL, SR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
David M. Guel, Sr., of Cibolo, Texas, pro se.
Jeffrey A. Gauger, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With him on the brief was B. Chad Bungard,
General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3036
DAVID M. GUEL, SR.,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752080221-I-1.
_________________________
DECIDED: May 20, 2009
_________________________
Before GAJARSA, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
David M. Guel, Sr. petitions for review of the final decision of the Merit Systems
Protection Board (“the Board”) dismissing his appeal as untimely filed. Guel v. Dep’t of
the Air Force, MSPB Docket No. DA-0752-08-0221-I-1 (Final Order, September 5,
2008). Because the Board did not abuse its discretion in dismissing the appeal, we
affirm.
BACKGROUND
For twenty-two years, Mr. Guel was employed with the Department of the Air
Force (“the Air Force”) as a Sheet Metal Mechanic. In November of 2001, the Air Force
proposed to remove Mr. Guel from his position, accusing him of “failure to follow
security practices” and “loafing while on duty.” On the same day, Mr. Guel entered into
a Last Chance Agreement (“LCA”) that provided him with a two year probationary period
in exchange for an agreement that he would “maintain satisfactory punctuality,
attendance, good work habits, conduct, and performance acceptable to management.”
Mr. Guel also agreed to “withdraw and waive any and all present grievances, [Equal
Employment Opportunity] complaints, and appeals against management.” Moreover,
Mr. Guel agreed that he “may have appeal rights to the [Board]” and that he would
“waive these rights during the 24 month probationary period.”
On June 28, 2002, Mr. Guel received a Notice of Removal from the Air Force.
The notice alleged that Mr. Guel had left his vehicle “unsecured with the keys in the
ignition” in violation of the LCA. Mr. Guel, with the assistance of his attorney, filed a
formal Equal Employment Opportunity (“EEO”) complaint with the Equal Employment
Opportunity Commission (“EEOC”), asserting that his removal was the result of
discrimination based on his age, national origin, and disability. In October of 2003, the
EEOC concluded that the Air Force did not discriminate against Mr. Guel. The decision
became final on November 29, 2003.
Mr. Guel appealed his removal to the Board in February of 2008. Mr. Guel
alleged that the LCA was invalid because he had received a “fully satisfactory”
evaluation from his supervisor after the date of the LCA, and because “an investigation
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was not initiated until three weeks after the termination action,” rather than prior to the
disciplinary action. Because the appeal was received six years after Mr. Guel’s
removal, the Board ordered him to show good cause for the delay. Mr. Guel replied that
he was advised by his supervisor and his union representative that he was not entitled
to review by the Board. In March, Mr. Guel submitted an amendment to his reply,
clarifying that the LCA misrepresented his appeal rights to the Board by leading him to
believe “that his appeal rights were available in the future.”
In June of 2008, the Administrative Judge (“AJ”) dismissed Mr. Guel’s appeal as
untimely filed after considering Mr. Guel’s initial response, as well as his amended
response to the Order to Show Cause. The AJ determined that the appeal was in fact
untimely filed, and Mr. Guel had not shown good cause for the delay. Specifically, the
AJ determined that “[h]ad the appellant and/or his attorney exercised due diligence, they
would have found that he could appeal his removal to the Board, despite the LCA, if he
did not violate the LCA, if the agency acted in bad faith, or if he did not voluntarily and
freely enter into the agreement.”
The Board’s decision became final on November 24, 2008. This appeal followed.
We have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review of a decision by the Board is limited. We may only set
aside the Board’s decision if 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.”
2009-3036 3
5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir.
2003).
An appeal from an agency’s adverse action must by filed with the Board “no later
than 30 days after the effective date, if any, of the action being appealed, or 30 days
after the date of the appellant’s receipt of the agency’s decision, whichever is later.”
5 C.F.R. § 1201.22(b). When the party first timely files a formal complaint of
discrimination with the agency, “[a]n appeal must be filed within 30 days after the
appellant receives the agency resolution or final decision on the discrimination issue.”
5 C.F.R. § 1201.154(b)(1). If the party files an appeal with the Board outside this
specified time, the appeal “will be dismissed as untimely filed unless a good reason for
the delay is shown.” 5 C.F.R. § 1201.22(c).
We agree that Mr. Guel’s appeal was untimely filed. Mr. Guel first timely filed a
formal complaint of discrimination with the Air Force, and the decision from that
complaint became final on November 29, 2003. Thus, Mr. Guel should have filed an
appeal by December 29, 2003. Because his appeal was received by the Board on
February 4, 2008, over four years later, his appeal was untimely filed.
Even though we agree that Mr. Guel’s appeal was untimely filed, we must still
review the Board’s determination that Mr. Guel did not provide good cause and thus is
not entitled to a waiver of the filing. Whether Mr. Guel has shown 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.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653
(Fed. Cir. 1992). Accordingly, “we will disturb the grant or denial of such a waiver only if
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it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Id. (citing 5 U.S.C. § 7703(c)).
We find that the Board did not abuse its discretion in determining that Mr. Guel
failed to show good cause. The Board has identified various factors that should be
considered in determining whether a waiver of the filing deadline for showing good
cause is justified. These factors include, but are not limited to: (1) the length of the
delay; (2) whether appellant was notified or otherwise aware of the time limit; (3) the
“existence of circumstances beyond the control of the appellant which affected his
ability to comply with the time limits”; and (4) “the degree to which negligence by the
appellant has been shown.” Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir.
1994). It is well settled that “a person is bound by the consequences of his
representative’s conduct,” and we have previously upheld the Board’s denial of waiver
when the delay was caused by an attorney’s negligence. Rowe v. Merit Sys. Prot. Bd.,
802 F.2d 434, 436 (Fed. Cir. 1986).
The AJ considered those factors in determining that Mr. Guel did not show good
cause for the delay. Specifically, the AJ noted that filing an appeal four years late
constituted a “significant delay.” Further, the AJ noted that Mr. Guel’s LCA indicated
that he has the right to appeal to the Board. Moreover, Mr. Guel was represented by an
attorney throughout the time he was able to timely file an appeal and “[h]ad the
appellant and/or his attorney exercised due diligence, they would have found that he
could appeal his removal to the Board.” Mr. Guel does not dispute any of the factual
findings relied on by the Board. Further, the Board’s analysis makes clear it considered
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and weighed the proper factors. Thus, we find that the Board did not abuse its
discretion by denying Mr. Guel a waiver of the filing deadline.
For these reasons, the decision of the Board is affirmed.
No costs.
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