Wear 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
05-3029
CECIL E. WEAR,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: April 14, 2005
__________________________
Before NEWMAN, CLEVENGER, and RADER, Circuit Judges.
PER CURIAM.
Mr. Cecil E. Wear appeals the final decision of the Merit Systems Protection Board1
dismissing his refiled appeal as untimely. We affirm.
BACKGROUND
1 Wear v. Social Security Administration, CH0752010349-I-2 (M.S.P.B. Aug.
12, 2004).
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Mr. Wear was a Development Clerk with the Social Security Administration in
Evanston, Illinois until the agency terminated his employment on March 27, 2001, on
charges of being absent without leave and for not providing medical and other
documentation for leave. Mr. Wear has stipulated that he did not follow proper leave and
documentation procedures with respect to absences on August 2-4, 1999; August 11-12,
1999; August 24, 1999; September 1, 1999; September 22-27, 1999; November 1-5, 1999;
and December 17, 1999.
Mr. Wear appealed the agency's decision to the Merit Systems Protection Board.
The administrative judge (AJ) dismissed the appeal without prejudice on May 8, 2001
pending the outcome of a grievance arbitration proceeding regarding Mr. Wear's prior leave
restriction and suspension, with instructions that Mr. Wear should refile the appeal with the
Board within 15 days of the arbitration decision or by close of business November 8, 2001.
Although the AJ initially specified that the appeal had to be refiled by whichever of these
two dates was later, the AJ issued a correction that the appeal had to be refiled by
whichever of these two dates was earlier. Erratum Notice of July 18, 2001.
On January 11, 2002, the arbitrator denied the grievance. The Fair Labor Relations
Authority denied the union's exceptions to the arbitrator's decision on April 18, 2002. Mr.
Wear submitted an appeal to the EEOC-OFO, which dismissed the appeal on March 13,
2003 and denied a request for reconsideration on May 7, 2003, instructing Mr. Wear that he
could file an appeal to the United States District Court within 90 days.
Mr. Wear did not refile his appeal with the Merit Systems Protection Board until
September 26, 2003. The Board dismissed the appeal as untimely, because it was not filed
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within 15 days following issuance of the arbitration decision or by November 8, 2001, and
Mr. Wear did not show good cause for the delay.
DISCUSSION
Final decisions of the Merit Systems Protection Board are reviewed to determine
whether they were (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);
Fernandez v. Dep't of the Army, 234 F.3d 553 (Fed. Cir. 2000).
Mr. Wear's appeal was refiled on September 26, 2003, which was after the deadline
the AJ set for refiling, i.e. November 8, 2001, and was more than 15 days after the
arbitration decision on January 11, 2002. Thus the refiling of the appeal by Mr. Wear was
untimely under the instructions the AJ gave on May 8, 2001. The AJ was justified in setting
a time limit for refiling, in the interest of efficiency and repose. The time limit set was not
unreasonable, and was communicated to Mr. Wear.
Mr. Wear argues that the authorization to refile with the MSPB within 15 days of the
decision of the arbitrator implicitly included the right to exhaust appeals to other agencies
and courts before refiling with the MSPB. However, this was contrary to the MSPB's clear
instruction that "[the appeal] may be refiled within 15 days following issuance of the
arbitration decision regarding Appellant's 5-day suspension or before close of business on
November 8, 2001 . . . ."
Further, even on Mr. Wear's position, the EEOC-OFO decision became final on May
7, 2003, and Mr. Wear's 90 days to appeal to the district court ended on August 7, 2003,
while his appeal was not refiled with the MSPB until September 26, 2003, more than 15
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days after this final appeal right was exhausted. Thus even according to Mr. Wear's most
expansive method of calculating his time to refile with the MSPB, he was still untimely.
Mr. Wear acknowledges this untimeliness and states that he had good cause for
delay. Mr. Wear claims that he submitted evidence showing good cause for delay to the
MSPB on October 15, 2003. At this time, Mr. Wear submitted a statement from William
O'Connor, Mr. Wear's representative from the American Federation of Government
Employees, which stated that Mr. Wear should be excused because he was "pursuing
other litigious avenues with the Federal Labor Relations Authority and the Equal
Employment Opportunity Commission regarding his 5-day suspension." On October 23,
2003, the AJ found that this explanation did not constitute good cause. Moreover, as we
have seen, Mr. Wear still waited four and a half months after his appeals with these
agencies were exhausted before refiling his appeal. Mr. Wear made no attempt to explain
this delay. The party seeking to excuse the untimeliness has the burden of establishing a
good cause. The factors the Board may consider include:
the length of the delay; whether appellant was notified of the time limit or was
otherwise aware of it; the existence of circumstances beyond the control 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 showing 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. [Citations and footnotes omitted.] "Excusable neglect" is neglect
that a reasonably prudent person might manifest under the circumstances.
"Unavoidable casualty or misfortune" is not preventable by "the exercise of
reasonable skill and diligence or human prudence or foresight." "Prejudice to
the agency" relates to the agency's inability to adequately and effectively
defend its action because of appellant's untimely filing.
Walls v. MSPB, 29 F.3d 1578, 1582 (Fed. Cir. 1994). Mr. Wear has not provided any
explanation; a bare statement cannot suffice to establish good cause. Mr. Wear did not
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refile until one and a half years after the arbitration decision, four and one half months after
the EEOC appeal was exhausted, and one and a half months after the ability to file in the
district court was exhausted. He did not provide any explanation of excusable neglect or
unavoidable casualty.
As discussed in Walls, the waiver of a filing deadline for good cause is within the
discretion of the Board, and the decision is reviewed to determine whether it is arbitrary and
capricious or otherwise not in accordance with law. Id. The Board did not abuse its
discretion in ruling that the refiling was untimely.
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