Coakley v. Merit Systems Protection Board ( 2005 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
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FRANCIS X. COAKLEY,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: June 24, 2005
___________________________
Before MICHEL, Chief Judge, LOURIE, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.
Francis X. Coakley was a civilian employee of the Department of the Navy,
serving as a crew member on the USNS Pecos, which supported the USS Kitty Hawk
Battle Group. Civilian employees of the Navy with support functions equivalent to those
of deployable military personnel are subject to the same immunization requirements as
military personnel. The Navy ordered all crew members of the Pecos to have an HIV
test performed by the ship’s medical services officer (“MSO”) as a precursor for a
required smallpox vaccination. Based on his reservations regarding the MSO’s
competence and discretion, Mr. Coakley refused to allow the MSO to administer the HIV
test. Mr. Coakley spoke to the ship’s captain, who was medically certified, and asked
him to administer the test. After conferring with his supervisors, the captain proposed
removing Mr. Coakley from his position for refusing to take the HIV test and smallpox
vaccination as ordered.
Mr. Coakley responded to the proposed removal by alleging several incidents of
misdiagnosis involving the MSO that in his view showed that the MSO was incompetent.
Mr. Coakley also alleged that the MSO did not have adequate training and that the MSO
had told him the vaccinations were voluntary. After considering Mr. Coakley’s
response, the Navy removed him from his position for refusing to follow orders.
According to an affidavit Mr. Coakley filed during this litigation, the Navy advised him in
late April 2003 that he would shortly be receiving a decision letter removing him from his
position. Mr. Coakley decided to appeal the removal decision to the Merit Systems
Protection Board, and on the recommendation of another crew member he retained
Steven R. Lewis to handle his appeal.
According to Mr. Coakley, Mr. Lewis represented that he was a lawyer and the
director of the Family Legal Center in San Diego. The two agreed on a fee of $150 per
hour for Mr. Lewis’s services, and Mr. Coakley paid Mr. Lewis a retainer of $1500. On
April 29, 2003, Mr. Coakley received the notice of removal from the Navy, which was
dated April 28, 2003, and which designated May 2, 2003, as the effective date of his
removal. The letter advised Mr. Coakley that if he elected to appeal his removal to the
Merit Systems Protection Board he should file his appeal with the Board within 30
calendar days of the effective date of his removal. Although the letter stated that an
appeal form was attached, there was no attachment to the letter that Mr. Coakley
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received at that time. On May 1, in response to Mr. Coakley’s inquiry, the Navy
provided Mr. Coakley with the attachments, which consisted of copies of the Merit
Systems Protection Board regulations and an outdated appeal form that indicated he
had only 20 calendar days within which to file his appeal. Mr. Coakley met with Mr.
Lewis on that date and provided those materials to him during their meeting.
Mr. Coakley stated in his affidavit that shortly after retaining Mr. Lewis, Mr.
Coakley “looked him up on the website of the California State Bar Association, but did
not find him listed there.” Mr. Coakley asked Mr. Lewis about the absence of any listing
in his name, and Mr. Lewis again assured Mr. Coakley that he was a lawyer and said
that many lawyers in California did not belong to the state bar association.
Mr. Lewis advised the Navy that he was representing Mr. Coakley and requested
a copy of the decision letter. According to Mr. Coakley, after Mr. Lewis received the
letter on May 7, 2003, he told Mr. Coakley that he had 30 calendar days from that date
to file an appeal with the Merit Systems Protection Board, because the 30-day appeal
period began to run when Mr. Coakley’s representative received the letter, as opposed
to when Mr. Coakley received the letter. Mr. Coakley asserted in his affidavit that he
contacted Mr. Lewis by telephone regularly to inquire about the progress of his appeal,
including every other day during the two weeks prior to June 5, 2003, the date when Mr.
Lewis filed the appeal.
On June 16, 2003, the administrative judge who was assigned to the case
ordered Mr. Coakley to show cause why his appeal should not be dismissed on the
ground that his petition was filed three days late (i.e., more than 30 days after the
effective date of Mr. Coakley’s removal). Mr. Lewis prepared a response filed on June
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27, 2003, in which he asserted that the petition was timely filed. Mr. Lewis contended
that he had contacted the Navy and “was led to believe by the agency” that the 30-day
appeal period commenced the day after he received the notice of removal in his
capacity as Mr. Coakley’s representative. He also argued that the Board’s regulations
were unclear as to whether the 30-day time period for appeal commences when the
employee receives a copy of the removal notice or when the employee’s representative
receives a copy of the decision letter. The Navy responded that the regulation was
clear that the 30-day appeal period began to run as of the effective date of Mr.
Coakley’s removal, that Mr. Coakley was bound by the actions of his chosen
representative, and that there was no evidence that Mr. Coakley “was thwarted in the
prosecution of his appeal, by his representative.”
On July 28, 2003, the administrative judge dismissed Mr. Coakley’s appeal as
untimely. The administrative judge found that the appeal was filed more than 30 days
after the notice of removal was given to Mr. Coakley and after the effective date of his
removal. It was thus was out of time under 5 C.F.R. § 1201.22(b), which requires that
an appeal be filed “no later than 30 days after the effective date, if any, of the action
being appealed, or 30 days after the date of receipt of the agency’s decision, whichever
is later.” The administrative judge noted that although the Navy had provided Mr.
Coakley with an outdated and erroneous appeal form, the decision letter had correctly
advised him that his appeal was due for filing within 30 days of May 2, 2003, the
effective date of his removal. With respect to Mr. Lewis’s claim that a Navy employee
relations specialist had told him that the 30-day appeal period did not begin to run until
Mr. Lewis received a copy of the removal notice, the administrative judge concluded
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that Mr. Lewis’s “broad and nonspecific allegation” regarding the representations of the
agency official “is outweighed by the sworn statement from [the Navy employee
relations specialist] that she discussed the applicable time limits with [Mr. Lewis] and
that she never represented the deadline to differ in any way from that specifically
provided in the agency’s decision letter.” Finally, the administrative judge stated that an
appellant is generally responsible for the actions of his chosen representative and that
delays caused by a representative will not constitute good cause to excuse a filing
delay. The administrative judge noted that the Board “has recognized a limited
exception to this rule for cases where an appellant proves that he actively monitored the
progress of his appeal but that his diligent efforts to prosecute his case were thwarted
by the deception and negligence of his representative.” The administrative judge
added, however, that “[n]o such arguments were made here” regarding the applicability
of the exception.
According to Mr. Coakley, Mr. Lewis failed to provide him with a copy of the
administrative judge’s opinion, despite repeated requests. Mr. Coakley ultimately
obtained a copy of the decision from the Washington office of the Merit Systems
Protection Board. At that time, Mr. Coakley hired new counsel, who has represented
him since then. Mr. Coakley’s new counsel investigated Mr. Lewis’s status and
discovered no listing in the Martindale-Hubbell directory in San Diego for Steven R.
Lewis and found no Steven R. Lewis listed with the State Bar of California as being
licensed to practice law in California and having an office in San Diego. When counsel
contacted Mr. Lewis directly and asked if he was an attorney, Mr. Lewis admitted that
he was not.
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Mr. Coakley’s new counsel then filed a petition for review with the full Board,
supported by his own affidavit and one from Mr. Coakley. In the petition, counsel
argued that the appeal was timely, based on the fact that Mr. Coakley was initially given
an outdated and incorrect appeal form. In addition, he argued that the Board should
excuse the late filing or remand the case to the administrative judge for further
proceedings on the issue of timeliness. Counsel noted that the period of delay was
short and argued that the circumstances established good cause for the delay. He
acknowledged that the declarations relating to Mr. Lewis’s status and his
representations to Mr. Coakley were not before the administrative judge, but argued that
the Board should take that evidence into account in determining whether to grant the
petition since that evidence was not available to Mr. Coakley prior to the administrative
judge’s decision. Counsel argued that Mr. Coakley’s reliance on Mr. Lewis’s
representations about his status as an attorney and his representations as to the due
date of the appeal were reasonable and therefore constituted good cause for the filing
delay. The Board, however, denied the petition for review, stating without elaboration
that “there is no new, previously unavailable, evidence and that the administrative judge
made no error in law or regulation that affects the outcome.”
I
Mr. Coakley first argues that his appeal was timely because it was filed within 30
days of the date on which his representative received the correct appeal form and the
Board regulations, which were required to be provided to Mr. Coakley under 5 C.F.R.
§ 1201.21. The administrative judge determined that Mr. Coakley was apprised of the
30-day deadline in the decision letter and that he “failed to establish how the lack of the
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Board’s regulations or the outdated appeal form impeded his ability to timely file his
appeal.” Although the administrative judge appears to have believed that Mr. Coakley
did not receive a copy of the Board’s regulations until May 7, 2003, Mr. Coakley stated
in his affidavit that he received a copy of the Board’s regulations on May 1, 2003, along
with the outdated appeal form. It is unclear from Mr. Coakley’s affidavit whether the
Board regulations provided to him on May 1, 2003, were current or outdated.
Mr. Coakley relies on Shifflett v. United States Postal Service, 839 F.2d 669(Fed. Cir. 1988), for the proposition that the Navy was required to provide him with the
updated appeal form and a copy of the regulations before the 30-day time period for
filing an appeal could begin. Shifflett, however, does not support his argument. In
Shifflett, the employee was not provided with notice of her right to appeal to the Merit
Systems Protection Board, the time within which an appeal had to be filed, or the place
where such a filing should be made. In this case, by contrast, the decision letter
informed Mr. Coakley of all three. Although the outdated appeal form that was given to
Mr. Coakley indicated that he had only 20 days within which to file an appeal, that
information could not have prejudiced him by inducing him to miss the longer, 30-day
appeal period set forth in the decision letter. There was nothing in the materials given
to Mr. Coakley that could have led him to believe that the period for filing an appeal was
greater than 30 days. The error in the appeal form is therefore not a sufficient basis on
which to hold that the June 5, 2003, filing was timely.
II
Mr. Coakley next argues that he established good cause for waiving the time limit
for filing his appeal under 5 C.F.R. §§ 1201.12 and 1201.22(c), and that the Board
04-3404 7
abused its discretion when it did not waive the time limit in his case. Section 1201.12
states that “[a] judge may, for good cause shown, waive a Board regulation unless a
statute requires application of the regulation.” Section 1201.22(c) states that “[i]f a party
does not submit an appeal within the time set by statute, regulation, or order of a judge,
it will be dismissed as untimely filed unless a good reason for the delay is shown,” and
“[t]he judge will provide the party an opportunity to show why the appeal should not be
dismissed as untimely.”
A
The administrative judge held that Mr. Coakley did not show good cause for filing
his appeal late. The only grounds for good cause cited in the memorandum filed by Mr.
Lewis on Mr. Coakley’s behalf were (1) the outdated appeal form, which the
administrative judge found nonprejudicial, and (2) Mr. Lewis’s claim that an agency
representative had misled him as to the due date of the appeal, which the administrative
judge did not credit. The administrative judge noted that Mr. Lewis did not argue in his
memorandum that Mr. Coakley’s case fell within the category of cases in which the
appellant proves that he has actually monitored the progress of his appeal but that his
diligent efforts were thwarted by the deception and negligence of his representative.
The failure to make that argument is hardly surprising, in that it was Mr. Lewis who
prepared and filed that memorandum. In any event, that argument and the evidence
subsequently submitted in support of it were not before the administrative judge.
Accordingly, based on the record at the time of the initial decision, it was not error for
the administrative judge to deny Mr. Coakley’s request to waive the 30-day appeal
period.
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B
It is a different matter, however, as to whether the full Board abused its discretion
when it failed to grant Mr. Coakley’s petition for review in response to the submission
filed by his new counsel. The Board’s regulations authorize it to grant a petition for
review when it is established that new and material evidence is available that, despite
due diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d)(1).
We have held that the Board abuses its discretion if it denies a petition for review even
though the petitioner submits new and material evidence that was not available earlier
in the proceeding despite the petitioner’s exercise of due diligence. See Wright v.
United States Postal Serv., 183 F.3d 1328, 1332 (Fed. Cir. 1999). Based on the
evidence that Mr. Lewis had deceived Mr. Coakley as to his status as an attorney and
that Mr. Coakley had repeatedly endeavored to ensure that Mr. Lewis would file the
appeal on time, we conclude that the evidence submitted by Mr. Coakley with his
petition for review was newly discovered and that it was material to the issue of
timeliness.
First, the evidence presented to the Board was newly discovered. Assuming Mr.
Coakley’s affidavit to be true—and there was no evidence submitted by the agency to
contradict Mr. Coakley’s allegations—the information regarding Mr. Lewis’s status was
not known to Mr. Coakley at the time of the administrative judge’s decision. Nor was it
unreasonable for Mr. Coakley not to have discovered that information. According to Mr.
Coakley, Mr. Lewis repeatedly assured him that he was an attorney, and even though
Mr. Coakley conducted his own investigation of the matter, Mr. Lewis gave a plausible
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explanation for the absence of his name on the list of attorneys maintained by the state
bar association.
Second, the evidence presented to the Board was material to the issue of
timeliness. In analyzing whether good cause has been shown for an untimely filing, this
court and the Board have focused on (1) the length of the delay, (2) whether the
appellant was notified of the time limit or was otherwise aware of it, (3) whether there
were factors beyond the appellant’s control that affected his ability to comply with the
time limits, (4) the degree to which negligence by the appellant has been shown to be
present, and (5) the nature of the prejudice to the agency that would result from waiver
of the time limit. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994);
Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180 (1980). In this case, the period of
delay was very short; there has been no showing (or even any claim) of prejudice to the
agency; and the new evidence is relevant to two of the other Walls factors. The
evidence bears on whether Mr. Coakley was in any way negligent in allowing his appeal
to be filed late, and on whether Mr. Lewis’s conduct, including his misrepresentations as
to his status as an attorney, constituted actions outside of Mr. Coakley’s control that
affected his ability to comply with the time limit.
It was not unreasonable for Mr. Coakley to credit Mr. Lewis’s repeated insistence
that the 30-day appeal period ran from the date that Mr. Lewis received the decision
letter with the correct enclosures, which was May 7, 2003. Although the decision letter
stated that the appeal would be due within 30 days of the effective date of Mr. Coakley’s
removal, the Board’s regulations state that the appeal is due within 30 days of the
effective date of the action being appealed, “or 30 days after the date of receipt of the
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agency’s decision, whichever is later.” 5 C.F.R. § 1201.22(b). The regulation does not
specify receipt by the employee, as opposed to his representative, and although the
Board has construed the term “receipt” to refer to receipt by the employee, that
construction would not necessarily be clear to a layman, particularly if his
representative, putatively an attorney, insisted that the term “receipt” referred to receipt
by the representative of a complete package consisting of the decision letter, the Board
regulations, and a correct appeal form.
For that reason, we reject the Board’s argument on appeal that Mr. Lewis’s
status as a nonlawyer did not prevent Mr. Coakley “from fulfilling his responsibility to file
his appeal in a timely manner.” While a person in Mr. Coakley’s position might be
skeptical of a nonlawyer’s representation that the Board’s rules mean that the 30-day
period runs from “receipt” by the employee’s representative, it is hardly unreasonable
for a layman to accept the representation, by a person purporting to be a lawyer, that
the Board’s rules are construed in that fashion.
Although the Board and this court have frequently held that an employee is
normally responsible for errors committed by his chosen representative, see, e.g., Rowe
v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986), that principle is subject to an
exception for cases in which the employee has diligently pursued his appeal rights and
has lost those rights because of deception or negligence by his attorney. In Dunbar v.
Department of the Navy, 43 M.S.P.R. 640, 643-44 (1990), for example, after an
administrative judge dismissed Mr. Dunbar’s appeal for untimeliness, the full Board
granted the petition for review. The Board then held that “it is inappropriate to apply the
principle that an attorney’s actions should be attributed to his client when the client has
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proven that his diligent efforts to prosecute the suit were, without his knowledge,
thwarted by his attorney’s deceptions and negligence.”1 Dunbar, 43 M.S.P.R. at 644.
The Board noted that Mr. Dunbar had made several telephone calls to his
representative’s law office to inquire about the status of his appeal and to remind him
that the deadline was approaching, and he had even appeared at his representative’s
office in an unsuccessful attempt to mail the appeal himself on the day it was due. Id.
The representative’s secretary failed to mail the appeal after being instructed at least
twice by the representative to do so. Id. at 642. The Board found that because Mr.
Dunbar was diligent in monitoring the progress of his case, he had shown good cause
for the untimeliness of his appeal. Id. at 645. Accordingly, the Board reversed the initial
decision and remanded the case to the administrative judge to address the merits of Mr.
Dunbar’s appeal. Id.
The facts here are analogous to those of Dunbar. In this case, Mr. Coakley
stated in his affidavit that he was deceived by his representative and that he diligently
monitored the progress of his appeal. He explained that he “thought [Mr. Lewis] was a
licensed attorney and that [he] could rely on his advice” regarding the deadline for filing
his appeal. He also stated that, like Mr. Dunbar, he made numerous telephone calls to
Mr. Lewis regarding the progress of his appeal and that he called every other day during
1
See also Sullivan v. Office of Pers. Mgmt., 88 M.S.P.R. 499, 502 (2001)
(deadline waived for appellant who diligently pursued his appeal but was deceived by
his attorney); Davenport v. United States Postal Serv., 97 M.S.P.R. 417, 420 (2004)
(appellant is not bound by her representative’s actions if her diligent efforts were
“thwarted, without her knowledge by her representative’s deceptions and negligence”);
Murphy v. Dep’t of the Treasury, 91 M.S.P.R. 239, 243 (2002) (client is not accountable
for his attorney’s actions when “his attorney failed to file the petition despite the
appellant’s diligent efforts to prosecute his appeal”).
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the two weeks prior to the filing of the appeal to remind Mr. Lewis of the impending
deadline. Additionally, as was the case in Dunbar, Mr. Coakley signed the appeal form
well before the June 2, 2003, deadline. Based on the facts of record at this point, Mr.
Coakley’s case would thus appear to qualify for consideration under the recognized
exception to the general rule that an employee is charged with the litigation decisions
made by his chosen counsel.
Because the evidence submitted in connection with the petition for review was
newly discovered and was material in light of the Board’s precedent in Dunbar and
similar cases, we hold that the Board abused its discretion when it denied Mr. Coakley’s
petition for review on the ground that it did not contain new and material evidence. Of
course, the Board has not yet determined whether the allegations in Mr. Coakley’s
affidavit and that of his new counsel are true, and whether there are other factors
bearing on the timeliness issue that would lead the Board to determine that Mr. Coakley
has failed to demonstrate good cause for the three-day filing delay. For present
purposes, however, we agree with Mr. Coakley that he has made a sufficient showing to
be entitled to have the Board consider his evidence bearing on the good cause issue.
We therefore reverse the Board’s decision denying the petition for review and remand to
the Board for further consideration of the issue of good cause for the untimely filing of
the appeal.
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