Herring v. Merit Systems Protection Board

United States Court of Appeals
for the Federal Circuit
______________________
RAMONA GILL HERRING,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2013-3170
______________________
Petition for review of the Merit Systems Protection
Board in No. DC844E120778-I-1.
______________________
Decided: February 18, 2015
______________________
MATHEW B. TULLY, Tully Rinckey PLLC, Washington,
DC, argued for petitioner. Also represented by STEVEN L.
HERRICK.
SARA B. REARDEN, Office of the General Counsel, Mer-
it Systems Protection Board, Washington, DC, argued for
respondent. Also represented by BRYAN G. POLISUK.
______________________
Before REYNA, WALLACH, and TARANTO, Circuit Judges.
2 HERRING V. MERIT SYSTEMS PROTECTION BOARD
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge REYNA.
WALLACH, Circuit Judge.
Petitioner Ramona Gill Herring (“Petitioner”) appeals
a Final Order of the Merit Systems Protection Board
(“MSPB” or “Board”), dismissing her appeal as untimely
filed without good cause. Because, under the circum-
stances of this case, the MSPB abused its discretion in
determining Ms. Herring had not demonstrated good
cause for the untimely filing of her appeal, this court
reverses.
BACKGROUND
In March 2010, Ms. Herring was removed from her
position as a cytotechnologist with the Department of the
Navy. After her removal, she filed an application for
disability retirement benefits with the Office of Personnel
Management (“OPM”), which was denied. Ms. Herring
received the relevant OPM denial letter on July 14, 2012.
Under the applicable regulations, the due date to file an
appeal of the OPM denial was August 13, 2012. However,
because her attorney’s law office negligently failed to
transmit to her attorney the documents submitted by Ms.
Herring (while confirming to Ms. Herring that the neces-
sary documents and payment had been received), 1 Ms.
1 According to Petitioner’s Brief:
This proposed contract [between Ms. Her-
ring and her attorney] was transmitted by
administrative support staff located in the
Firm’s Washington, DC office and incor-
rectly directed Petitioner to return the
signed agreement to the Washington, DC
office rather than the Arlington, VA office
HERRING V. MERIT SYSTEMS PROTECTION BOARD 3
Herring did not file the appeal until August 23, 2012.
Thereafter, an administrative judge dismissed the appeal
as untimely filed, and the MSPB affirmed. Ms. Herring
timely appealed. This court has jurisdiction under 28
U.S.C. § 1295(a)(9) (2012).
DISCUSSION
It is undisputed that Ms. Herring’s appeal was filed
ten days late. “If 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.” 5 C.F.R. § 1201.22 (2012)
(emphasis added). Consistent with this regulation, the
MSPB acknowledges waivers may be granted “after
considering all of the facts and circumstances of a particu-
lar case.” Herring v. Office of Pers. Mgmt., No. DC-844E-
12-0778-I-1, at 3 (M.S.P.B. July 1, 2013) (Resp’t’s App. 1–
6) (“Final Order”).
The decision to waive the time limit to appeal to the
Board is committed to the discretion of the Board, and is
reversed only for abuse of that discretion. See Mendoza v.
Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992)
where the consulting attorney was locat-
ed. . . . Subsequently, on that same day[,
August 7, 2012], Petitioner spoke with
personnel in the Firm’s Albany, NY office
and communicated that she had mailed
documentation to the Washington DC of-
fice . . . .
Pet’r’s Br. 7. She “confirm[ed] that payment had
been received.” Id. at 13. “Subsequently, the Pe-
titioner was notified of the firm’s receipt on Au-
gust 8, 2012, of the FedEx package” containing
the documentation. Id. at 14.
4 HERRING V. MERIT SYSTEMS PROTECTION BOARD
(en banc) (“Whether 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.”); see also U.S. Postal Serv. v. Gregory, 534
U.S. 1, 6–7 (2001); Hines v. Merit Sys. Prot. Bd., 163 F.
App’x 913, 914 (Fed. Cir. 2006). The issue is therefore
whether the MSPB abused its discretion in finding Ms.
Herring failed to show good cause for the delay.
MSPB regulations do not provide criteria for deter-
mining when good cause has been shown for waiving the
time limitation with respect to the filing of an appeal. See
5 C.F.R. § 1201.12; id. § 1201.22(c). Case law, however,
provides nonexclusive criteria that may be considered.
These include:
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.
Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 184 (1980)
(footnotes omitted); see also Walls v. Merit Sys. Prot. Bd.,
29 F.3d 1578, 1582 (Fed. Cir. 1994) (“We previously have
recognized the efficacy of the Alonzo factors in good cause
determinations by the Board.”); Smith v. Dep’t of the
Army, 105 M.S.P.R. 433, 433 (2007) (listing similar fac-
tors).
In its Final Order, the Board cited Alonzo and Smith
and mentioned several of their factors, but did not sys-
tematically apply those factors to Ms. Herring’s case. See
HERRING V. MERIT SYSTEMS PROTECTION BOARD 5
Final Order 3–5. Indeed, most of the factors were not
discussed at all. See id. The Board did, however, address
several of these factors in its brief before this court.
I. Circumstances Beyond a Party’s Control
In addressing one of these criteria, the MSPB in its
brief asserts “Ms. Herring did not present any evidence to
the Board that there were circumstances beyond her
control.” Resp’t’s Br. 18. Ms. Herring had, however,
executed a power of attorney authorizing agents of the
federal government to “fully communicate with” her
designated attorneys with respect to “any and all infor-
mation . . . deemed necessary” to her appeal. Resp’t’s
App. 67. In addition, although OPM determined Ms.
Herring had not proven a disability, the agency acknowl-
edged “the evidence [Ms. Herring] submitted shows that
[she has] medical conditions.” Id. at 69. Among Ms.
Herring’s claimed conditions were “[d]epression/[a]nxiety”
and “[f]atigue.” Id. at 68. These circumstances are rele-
vant when considering the reasonableness of Ms. Her-
ring’s actions or inactions. See, e.g., Malloy v. U.S. Postal
Serv., 578 F.3d 1351, 1357 (Fed. Cir. 2009) (“It is estab-
lished that mental impairment, when present, warrants
consideration and weight in assessing the reasonableness
of the action taken.”).
The MSPB acknowledges Ms. Herring’s assertions
that she contacted counsel substantially in advance of the
deadline, submitted the required payment for legal ser-
vices on August 7, 2012, and followed up by telephone on
August 7 to ensure that payment and documentation had
been received. Resp’t’s Br. 11; Pet’r’s Br. 7, 13–14. The
unusual facts of this case show Ms. Herring had done
everything that could reasonably be expected of her and
the failure to timely file was due to circumstances beyond
her control. “The appellant need not show an utter im-
possibility, but only that the delay was excusable in light
of the particular facts and attending circumstances where
6 HERRING V. MERIT SYSTEMS PROTECTION BOARD
diligence or ordinary prudence has been exercised.”
Anderson v. Dep’t of Justice, 999 F.2d 532, 534 (Fed. Cir.
1993) (quoting Alonzo, 4 M.S.P.R. at 184); see also Lamb
v. U.S. Postal Serv., 68 M.S.P.R. 500, 502 (1995) (“To
establish good cause for an untimely filing, a party must
show that she exercised diligence or ordinary prudence
under the particular circumstances of the case.”).
In arguing there were no circumstances beyond Ms.
Herring’s control, the MSPB states Ms. Herring could
have “contacted her attorney between August 8, 2012, and
August 13, 2012,” or “personally filed her appeal.”
Resp’t’s Br. 19. It is true it is a party’s “duty to monitor
the progress of the appeal at all times.” Soleto v. Dep’t of
Agric., 58 M.S.P.R. 253, 256 n.2 (1993). However, under
the circumstances of this case, where the petitioner had
relevant physical and psychological conditions, executed a
power of attorney in favor of her legal representatives,
completed all of the steps requested by counsel, and
followed up by telephone a few days prior to the filing
deadline, the duty to monitor did not require the petition-
er to make additional telephone calls to counsel, within
the short period prior to the deadline, in the absence of
any indication whatsoever that additional steps were
necessary. The MSPB acknowledges Ms. Herring’s claim
that she was reassured, just a few days before the filing
deadline, that the appeal would be timely filed. See
Resp’t’s Br. 11. These circumstances, taken together,
indicate the actions and inactions of Ms. Herring’s law
firm “were misleading and deceptive in effect” and “‘mis-
led and lulled’” Ms. Herring “‘into believing th[e] case was
proceeding smoothly.’” Crawford v. Dep’t of State, 60
M.S.P.R. 441, 446 (1994) (quoting Dabbs v. Dep’t of Veter-
ans Affairs, 56 M.S.P.R. 57, 60 (1992)).
For similar reasons, although a party could personally
file an appeal, it is not reasonable to expect a party to do
so under the circumstances of this case. In Crawford, the
MSPB found the appellant had established good cause for
HERRING V. MERIT SYSTEMS PROTECTION BOARD 7
a filing made twenty-three days late notwithstanding that
repeated phone calls made by the appellant to her attor-
ney had not been returned. 60 M.S.P.R. at 445. In Soleto,
the MSPB found important “the fact that the petition was
returned to [the appellant]” which “should have put him
on notice that some additional action was necessary.” 58
M.S.P.R. at 256. In Dabbs, the MSPB found good cause,
56 M.S.P.R. at 60, even though “counsel’s apparent non-
chalance regarding [the filing deadline]” could have
indicated to the appellant the need to “file[] the petition
himself,” id. at 61 (Levinson, dissenting). Unlike these
cases where the returned petition, failure to return phone
calls, or an attorney’s nonchalance might have alerted the
claimant to the attorney’s negligence and suggested a
need for personal filing, Ms. Herring’s interactions with
her attorney provided no indication that additional action
on her part was needed. See Pet’r’s App. 38.
II. Negligence and Delay
The MSPB asserts the well-settled rule that “a peti-
tioner is responsible for the errors of her chosen repre-
sentative.” Resp’t’s Br. 19; see also Green v. Merit Sys.
Prot. Bd., 232 F.3d 912, 2000 WL 369683, at *1 (Fed. Cir.
2000) (unpublished) (“Citing precedent, the Board noted
that . . . the errors and omissions of one’s attorney do not
prove good cause for delay unless the attorney has
thwarted a petitioner’s diligent efforts to pursue an
appeal.”). However, the cases cited by the MSPB in
support of this proposition involve either greater negli-
gence or delay (or both) than the case at bar. Green, for
example, involved a delay of more than two-and-a-half
years between the filing deadline and the time at which
the application was filed, due in part to the disbarment of
counsel. Green, 232 F.3d. at *1. The MSPB specifically
noted the petitioner “waited from June of 1996 until
January of 1997 before asking his attorney whether she
had filed his petition for review,” far longer than the six
calendar days during which it is suggested Ms. Herring
8 HERRING V. MERIT SYSTEMS PROTECTION BOARD
could have acted. Green v. Dep’t of the Air Force, 83
M.S.P.R. 333, 334 (1999), aff’d, 232 F.3d 912 (Fed. Cir.
2000). More significantly, the MSPB in Green also found
that the petitioner, contrary to his assertion, had met
with counsel two years before the petition was ultimately
filed and was informed at that time of her disbarment.
Id. In the present matter, Ms. Herring asserts she fol-
lowed up by telephone with counsel six days before the
filing was due, at which time it appeared matters were
proceeding without issue.
Other cases cited by the MSPB are similarly distin-
guishable in that they involve much longer delays or
greater fault on the part of the petitioner. For example,
Moore v. Department of Veterans Affairs involved a delay
of more than four years, during which period Moore
consulted with counsel but nevertheless failed to file an
appeal. 80 M.S.P.R. 268, 270 (1998). In Link v. Wabash
Railroad Co., the Supreme Court noted it “could reasona-
bly be inferred from [the facts of the case] . . . that peti-
tioner had been deliberately proceeding in dilatory
fashion.” 370 U.S. 626, 633 (1962) (emphasis added). In
Johnson v. Department of the Treasury, the MSPB presid-
ing official had made “repeated requests” for information
that were not satisfactorily answered and “[t]wo prior
continuances had been granted despite delayed or insuffi-
cient support.” 721 F.2d 361, 364 (Fed. Cir. 1983). In
Sofio v. Internal Revenue Service, both the appellant and
her representative failed to appear at a scheduled hearing
because the representative was ill, but the Regional Office
was not notified in advance of the illness and no explana-
tion was ever given for this failure. 7 M.S.P.R. 667, 668
(1981). Even then, the presiding official found good cause
present, and only after a third postponement request did
the presiding official decide to adjudicate the matter on
the record without a hearing. Id. at 669.
This case contains no evidence of lengthy delay, dila-
tory conduct, repeated neglect, or unexplained non-
HERRING V. MERIT SYSTEMS PROTECTION BOARD 9
responsiveness. To the contrary, the record shows that
immediately upon learning of the error, the consulting
attorney filed Petitioner’s appeal with the Board via
facsimile the same day at 5:56 P.M. Pet’r’s App. 36; see
also Pet’r’s Br. 8–9.
While previous cases have declined to find good cause
even where the delay was short, these cases each con-
tained some additional factor weighing against a finding
of good cause. For example, only a four-day delay was at
issue in Rowe v. Merit Systems Protection Board, where
this court found good cause lacking. 802 F.2d 434 (Fed.
Cir. 1986). Unlike the present case, however, where
petitioner diligently communicated with her attorney and
reasonably believed the appeal would be timely filed, in
Rowe the petitioner made no efforts to ensure that his
attorney would file within this period. Id. at 435 (noting
the petitioner continued to insist the appeal “was not
untimely” even though the deadline “had been specifically
mentioned in his removal notice”). In Phillips v. United
States Postal Service, the MSPB upheld a finding that the
appellant had not shown good cause despite only a six-day
delay, but the delay was due to the appellant’s failure to
correctly address materials to his attorney. 5 M.S.P.R.
339, 340 (1981). In Lands v. Department of the Air Force,
the MSPB upheld a finding of no good cause despite only
a single day of delay. 95 M.S.P.R. 593, 596 (2004). The
sparse explanation for the lateness, however, was “over-
sight” on the part of the attorney. Moreover, the explana-
tion was provided in an unsworn response even though
“any explanation for the untimeliness of a petition for
review that is not submitted in the form of an affidavit or
a statement signed under penalty of perjury is insufficient
to establish the assertions it contains.” Id. at 595; see also
McAdory v. Dep’t of Justice, 6 M.S.P.R. 112 (1981) (up-
holding a finding of no good cause despite only a single
day of delay due to attorney negligence, but noting that in
addition to the late filing, no response was received to the
10 HERRING V. MERIT SYSTEMS PROTECTION BOARD
show cause letter). Goldberg v. Department of Defense
involved similar circumstances to the present matter in
that only a seven-day delay was at issue and the cause for
the delay, in part, was that the attorney’s office had
misplaced the Board’s order denying a ninety-day exten-
sion of the time to file. 39 M.S.P.R. 515, 517 (1989). In
upholding a finding of no good cause, however, the Board
noted that a copy of the order had also been mailed to the
appellant. Id. at 518. Unlike the present case, there was
no indication that the appellant had attempted to contact
counsel following receipt of the order.
“To establish good cause for a filing delay, an appel-
lant must show that the delay was excusable under the
circumstances and that the appellant exercised due
diligence in attempting to meet the filing deadline.”
Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed.
Cir. 2003); see also Dunbar v. Dep’t of the Navy, 43
M.S.P.R. 640, 643 (1990) (“To establish good cause, a
party must show that due diligence or ordinary prudence
was exercised under the particular circumstances of the
case.”). It is unclear from the record what a reasonable
person in Ms. Herring’s circumstances would have done
that she did not do. This is not a case where the petition-
er deliberately ignored a deadline due to the erroneous
advice of counsel. See Massingale v. Merit Sys. Prot. Bd.,
736 F.2d 1521 (Fed. Cir. 1984) (upholding a finding of no
good cause where petitioner, on the advice of counsel,
initiated an arbitration proceeding rather than submit-
ting an appeal to the agency, as the agency had indicated
he must do). Nor is it a case where the petitioner repeat-
edly failed to communicate with the agency. See Barnes v.
Merit Sys. Prot. Bd., 566 F. App’x 909, 910 (Fed. Cir.
2014). In hindsight, it may be easy to construct a se-
quence of events that would have led to timely filing. Ms.
Herring, however, had no reason to know that any addi-
tional steps were necessary.
HERRING V. MERIT SYSTEMS PROTECTION BOARD 11
To the extent any MSPB decision suggests attorney
negligence can never constitute good cause, 2 even where
the petitioner has exercised ordinary prudence under the
circumstances and other mitigating factors are present, it
is erroneous. A recent MSPB order finding good cause
despite attorney negligence illustrates this point and
provides a useful comparison to the present matter. In
Brink-Meissner v. Office of Personnel Management, the
petitioner missed a filing deadline by six days because the
OPM’s decision “was erroneously date stamped” by the
attorney’s support staff as being received in the attorney’s
office on September 4, 2013, when in fact it had been
received on August 26, 2013. No. PH-844E-14-0077-I-1,
2014 WL 5361501, at *1 (M.S.P.B. Aug. 5, 2014). As in
the present case, see Pet’r’s Br. 6, 7, 13 and Pet’r’s App.
37–38, Brink-Meissner communicated with her attorney
several times in order to ensure the appeal would be
timely filed, was assured by a staff member at the attor-
ney’s office the attorney would handle the matter, and
had no reason to believe otherwise, Brink-Meissner, 2014
WL 5361501, at *2. The Board found under these circum-
stances, Brink-Meissner “[had] made the requisite show-
ing under Dunbar,” i.e., that “her diligent efforts to
prosecute her appeal were thwarted, without her
knowledge, by her attorney’s deceptions and negligence.”
Id. at *1; see also Crawford, 60 M.S.P.R. at 446 (finding
the attorney’s negligence to have “misled and lulled” the
appellant into believing the case was proceeding smooth-
ly) (internal quotation marks and citation omitted).
2 See, e.g., Goldberg, 39 M.S.P.R. at 518 (“Negli-
gence on the part of an appellant or his attorney does not
constitute good cause for a late filing, even though the
filing may be late by only [one] day.”); Stromfeld v. Dep’t
of Justice, 25 M.S.P.R. 240, 241 (1984) (same).
12 HERRING V. MERIT SYSTEMS PROTECTION BOARD
III. Prejudice
As this court has previously stated, “‘[i]f the employee
gives a reasonable excuse for the delay, such excuse
should be accepted by the presiding official, absent a
showing of substantial prejudice to the agency caused by
the delay in filing.’” Williamson v. Merit Sys. Prot. Bd.,
334 F.3d 1058, 1064 (Fed. Cir. 2003) (quoting Alonzo, 4
M.S.P.R. at 184); see also Primbs v. United States, 4 Cl.
Ct. 366, 370 (1984) (“‘[A] serious . . . dereliction by an
attorney, when unaccompanied by a similar default by the
client, may furnish a basis for relief [from a dismissal]
under Rule 60(b)(6). That is the more so where, as appar-
ently here, little if any prejudice has befallen the other
party to the litigation.’”) (quoting Jackson v. Wash.
Monthly Co., 569 F.2d 119, 122 (D.C. Cir. 1977)). The
MSPB has not asserted the ten-day delay caused it any
prejudice.
IV. Retirement Benefits Claims versus Other Claims
In her brief, Ms. Herring asserts “the Board summari-
ly dismisses in a footnote Petitioner’s argument regarding
the long-recognized, less-stringent application of the
Alonzo principle in the context of retirement matters.”
Pet’r’s Br. 20. Some precedent supports this assertion. In
Edney v. Office of Personnel Management, 79 M.S.P.R. 60,
62 (1998), the Board reinstated petitioner’s appeal despite
“the errors of her chosen representative,” in part because
“a retirement case . . . is substantively different from the
nature of an adverse action appeal.” The Board ex-
plained:
In a discipline or removal case, it can be said that
an expedient response to an appeal enables the
agency to move forward with the management of
its programs and its workforce. However, in an
appeal related to a retirement decision made by
OPM, there is no such agency need for finality to
compete with the right of an appellant to a deci-
HERRING V. MERIT SYSTEMS PROTECTION BOARD 13
sion on the merits. . . . [A]ny doubt as to whether
the Board should reopen the appeal for an adjudi-
cation of its merits should be resolved in favor of
the appellant, even more so than in a disciplinary
appeal.
Id.Nor is Edney alone in referencing a more lenient
standard with respect to retirement claims. See, e.g.,
Kjeldsen v. Office of Pers. Mgmt., No. CH-831M-07-0395-I-
4, 2012 WL 11881230, at *2 (M.S.P.B. Mar. 28, 2012) (“[I]t
is true that the Board has made a distinction between
retirement cases and adverse actions in determining
whether to find good cause for an untimely filing.”); Lamb
v. Office of Pers. Mgmt., 110 M.S.P.R. 415, 419 (2009)
(“Retirement cases are not adversarial proceedings in the
sense that adverse actions are, and thus any doubt as to
whether the Board should waive the filing deadline for an
adjudication on the merits should be resolved in favor of
the appellant.”) (internal quotation marks and citation
omitted); Matson v. Office of Pers. Mgmt., 105 M.S.P.R.
547, 552 (2007) (“The Board has recognized that appeals
involving an appellant’s entitlement to retirement bene-
fits are fundamentally different from other types of ap-
peals within its jurisdiction.”); see also Karker v. Office of
Pers. Mgmt., 80 M.S.P.R. 235, 240 (1998) (finding “good
cause to waive a filing deadline because the Board has
placed a high priority on resolving retirement benefits
cases on the merits”).
The Board’s failure to consider a factor it has previ-
ously treated as significant contributes to this court’s
conclusion that the MSPB abused its discretion in its
disposition of Ms. Herring’s petition. See Webster v. Dep’t
of the Army, 911 F.2d 679, 694 (Fed. Cir. 1991) (“Failure
to consider a relevant factor constitutes an abuse of
discretion.”); see also VanFossen v. Dep’t of Hous. &
Urban Dev., 748 F.2d 1579, 1581 (Fed. Cir. 1984)
14 HERRING V. MERIT SYSTEMS PROTECTION BOARD
(“[F]ailure to consider a significant mitigating circum-
stance constitutes an abuse of discretion.”). If the Board
found this factor to be unimportant or unpersuasive in the
present case, it should have articulated its reasoning. Cf.
Copeland v. Wasserstein, Perella & Co., 278 F.3d 472, 484
(5th Cir. 2002) (“It is well settled that, to conduct our
review [under the abuse of discretion standard], we must
be able to understand the district court’s disposition of the
sanctions motion.”).
CONCLUSION
For the reasons stated above, the judgment is
REVERSED
United States Court of Appeals
for the Federal Circuit
______________________
RAMONA GILL HERRING,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2013-3170
______________________
Petition for review of the Merit Systems Protection
Board in No. DC844E120778-I-1.
______________________
REYNA, Circuit Judge, dissenting.
This is an unremarkable case that involves a law
firm’s failure to make a timely filing on behalf of its client.
As a result of the missed deadline, Ms. Herring’s appeal
to the Merit Systems Protection Board (“Board” or
“MSPB”) for reconsideration of denial of her application
for disability retirement benefits was dismissed. The
Board considered whether good cause existed for the
failure to meet the deadline and found none. The majori-
ty reverses the Board’s good cause determination, and
further finds that the Board abused its discretion for
failure to reach two other issues. For the following rea-
sons, I dissent.
MSPB regulations provide that an appeal will be dis-
missed as untimely filed “unless a good reason for the
2 HERRING V. MERIT SYSTEMS PROTECTION BOARD
delay is shown.” 5 C.F.R. § 1201.22(c) (2012). The Board
may waive the time limit and accept an untimely filing
where it determines, upon consideration of all of the facts
and circumstances, that good reason exists for the delay.
Id. § 1201.22. This court has held that the decision
whether to waive an applicable time limit is committed to
the Board’s discretion and that this court will not substi-
tute its judgment for that of the Board. Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en
banc) (collecting cases). A Board decision not to grant a
waiver will be reversed only upon a showing that the
Board decision was an abuse of its discretion. 5 U.S.C.
§ 7703(c).
The majority finds that the “unusual” facts in this
case render the Board’s decision not to waive the time
limit an abuse of its discretion. Maj. Op. at 5. In addi-
tion, the majority holds that the Board abused its discre-
tion by failing to assert the extent of prejudice it would
suffer were a waiver to be granted and by failing to ex-
tend leniency to Ms. Herring on grounds that this case
involves retirement benefits. I address each in turn.
I. GOOD CAUSE
There is nothing unusual here. This is a case where a
client hires a law firm to take its appeal and the law firm
fails to file the appeal on time. There is no controversy
surrounding whether an attorney-client relationship
existed between Ms. Herring and the law firm. The
record is clear that the circumstances leading to the
untimely filing were solely related to the attorneys’ fail-
ure to file on time. 1 The majority correctly states that
1 Ms. Herring’s attorney conceded during oral ar-
gument that the filing deadline was missed due to negli-
gence by the firm. Oral Argument Hearing Tr. at 4:51-
HERRING V. MERIT SYSTEMS PROTECTION BOARD 3
there are no extraordinary circumstances attributable to
Ms. Herring that account for the delay. Maj. Op. at 8-9.
The six day length of delay is unremarkable, and there
are no extraordinary facts attributable to the MSPB or
the law firm that account for the delay. In my view, the
Board reviewed all relevant facts in this case in reaching
its decision not to grant a waiver. I see no basis for
faulting the Board for abuse of its discretion.
The majority, however, makes an independent review
of the facts, and substitutes its factual judgment for that
of the Board. First, it faults the Board for not “systemati-
cally” applying the numerous Alonzo criteria. I find no
authority that mandates a good cause determination to be
made based on all Alonzo criteria.
Second, the majority finds that the Board abused its
discretion by failing to consider Ms. Herring’s “relevant
physical and psychological conditions.” Maj. Op. at 6.
While the record contains statements of Ms. Herring’s
medical conditions, those statements relate only to the
nature of Ms. Herring’s underlying disability claim. I find
nothing in the record indicating any “relevance” of Ms.
Herring’s medical condition to the issue of the delay.
Indeed, neither party raised or argued the relevancy of
Ms. Herring’s medical conditions and, as noted above, the
majority was correct that there are no extraordinary
circumstances attributable to Ms. Herring that account
for the delay. The Board therefore, did not abuse its
discretion in failing to consider Ms. Herring’s medical
conditions as a factor to the issue of delay.
Third, the majority sums up its review of circum-
stances in this case:
5:04, available at United States Court of Appeals for the
Federal Circuit website, http://cafc.uscourts.gov/.
4 HERRING V. MERIT SYSTEMS PROTECTION BOARD
These circumstances, taken together, indicate
the actions and inactions of Ms. Herring’s law
firm “were misleading and deceptive in effect”
and “‘misled and lulled’” Ms. Herring “‘into be-
lieving th[e] case was proceeding smoothly.’”
Crawford v. Dep’t of State, 60 M.S.P.R. 441, 446
(1994) (quoting Dabbs v. Dep’t of Veterans Af-
fairs, 56 M.S.P.R. 57, 60 (1992)).
Maj. Op. at 6 (brackets original). This statement consti-
tutes a significant, distinct factual finding by the majori-
ty. Yet, the evidence is that the missed deadline was
caused by a failure of communication within the firm’s
multiple offices. There is no evidence of any action on the
part of the firm as deceiving or misleading, intended or
otherwise. I find no legal support or factual basis for this
holding.
II. PREJUDICE AND LENIENCY
In addition, the majority finds that the Board abused
its discretion because it failed to address the extent of
prejudice it would suffer should waiver be granted, and
because the Board did not apply or articulate a more
lenient good cause standard in this case on the basis that
leniency is “a factor it has previously treated as signifi-
cant” in other instances.
In the cases cited by the majority, prejudice and
leniency are considered only after good excuse of the delay
was established. In addition, the cases cited involve
circumstances beyond the missed deadline facts of this
case. See Williamson v. Merit Sys. Prot. Bd., 334 F.3d
1058, 1064 (Fed. Cir. 2003) (“there are at least three
documents that, taken together, are sufficient to consti-
tute preponderant evidence that Williamson’s appeal was
filed on [the deadline]”); Primbs v. United States, 4 Cl. Ct.
366, 370 (1984) (where there was a dereliction of duty by
an attorney and dismissal under Rule 60(b)(6)). Such
circumstances are not present in the instant appeal. As a
HERRING V. MERIT SYSTEMS PROTECTION BOARD 5
result, the majority appears to elevate both prejudice and
leniency as factors that alone may establish good cause, a
proposition I do not accept.
This case is a simple matter of a law firm missing a
filing deadline that has placed its client at risk of losing
her retirement benefits. There are no excuses proffered,
reasonable or otherwise, for missing the deadline. The
Board fully reviewed the facts in its decision that good
cause has not been shown. Because I find no reason to
disturb that determination, I dissent.