Arnold v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JAMES R. ARNOLD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
______________________
2014-3073
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-09-0965-C-1.
______________________
Decided: July 24, 2014
______________________
JAMES R. ARNOLD, of Penngrove, California, pro se.
SARA B. REARDEN, Attorney, Office of General Coun-
sel, Merit Systems Protection Board, of Washington, DC,
for respondent. With her on the brief was BRYAN G.
POLISUK, General Counsel.
______________________
Before PROST, Chief Judge, MOORE and CHEN, Circuit
Judges.
2 ARNOLD v. MSPB
PER CURIAM.
James R. Arnold petitions for review of a final order of
the Merit Systems Protection Board (Board or MSPB),
which sustained the Administrative Judge’s (AJ) dismis-
sal of Mr. Arnold’s Petition for Enforcement (PFE) of a
settlement agreement with the United States Postal
Service (USPS or agency) as untimely filed. See Arnold v.
U.S. Postal Serv., SF-0752-09-0965-C-1 (M.S.P.B. Dec. 27,
2013) (Final Order). For the reasons discussed below, we
vacate and remand.
BACKGROUND
Mr. Arnold worked as a mail handler for the USPS, a
position from which he was removed in September 2009.
Mr. Arnold challenged his removal at the Board, contend-
ing that the USPS should have delayed his termination
until the Office of Workers’ Compensation Programs
(OWCP) could resolve his claim for disability due to
carpal tunnel syndrome. Mr. Arnold and the USPS,
represented by its attorney Deborah Winslow, subse-
quently entered into a settlement agreement (Agreement)
and the AJ dismissed Mr. Arnold’s appeal of his termina-
tion as settled. A notice accompanying the Dismissal
Order stated: “Any petition for enforcement must be filed
within a reasonable period after you discover the asserted
noncompliance. If you believe that your petition is filed
late, you should include a statement and evidence show-
ing good cause for the delay and a request for an exten-
sion of time for filing.” Arnold v. U.S. Postal Serv., SF-
0752-09-0965-C-1, slip op. at 5 (M.S.P.B. Nov. 20, 2009)
(Dismissal Order).
In September 2012, Mr. Arnold filed a PFE with the
Board alleging that the USPS breached the Agreement.
Mr. Arnold contended that the Agreement entitled him to
a “right to file injury compensation claims” (Right-to-File
Clause), and that the USPS prevented him from exercis-
ing it by making statements contrary to the Agreement’s
ARNOLD v. MSPB 3
provision that the USPS “separate[d] [Mr. Arnold] based
on his inability to perform the duties of his assigned
position” (Inability Clause). Resp’t’s App. at 48. Mr.
Arnold’s PFE referred to a notice of decision, dated No-
vember 2011, in which the OWCP concluded that Mr.
Arnold was not entitled to disability compensation. In
support of its decision, the OWCP relied in part on an
email message from Ms. Winslow. Ms. Winslow wrote the
email in response to the OWCP’s and Mr. Arnold’s re-
quests for “clarification” of the Agreement and of “the
MSPB decision’s reason for separation.” Id. at 60. Ms.
Winslow’s email stated that “[the separation] was strictly
about attendance and did not have anything to do with
the carpal tunnel which you claimed you have. . . . For
purposes of the MSPB settlement, the parties never came
to an agreement as to why you could not perform the work
which you were offered.” Id. (alterations omitted). In the
PFE, Mr. Arnold contended that “Ms. Winslow’s interfer-
ence with my right to obtain injury compensation . . . is a
deliberate attempt to prevent my compensation” in con-
travention of the Agreement. Id. at 41.
The AJ issued an acknowledgement order noting that
Mr. Arnold had the burden to prove that the Agreement
was breached. Relevant to this appeal, the AJ also indi-
cated that Mr. Arnold’s PFE “appears untimely on its
face” and ordered Mr. Arnold to “file evidence and argu-
ment showing that [the PFE] was timely filed or that good
cause existed for the delay.” Arnold v. U.S. Postal Serv.,
SF-0752-09-0965-C-1, slip op. at 2–3 (M.S.P.B. Oct. 4,
2012) (Acknowledgement Order). The USPS, through Ms.
Winslow, 1 responded to the merits of Mr. Arnold’s petition
1 Ms. Winslow changed her name to Deborah Wins-
low-Portillo. We will continue to refer to her as “Ms.
Winslow” to avoid confusion.
4 ARNOLD v. MSPB
and addressed the issue of timeliness. On the merits, the
USPS contended that it did not breach the Agreement by
telling the OWCP that the Inability Clause “is not evi-
dence that [Mr. Arnold] cannot perform [his] duties be-
cause of a work related injury. . . . For example, if an
employee is unable to report to work because of personal
problems, this is also an inability to perform one’s duties.”
Resp’t’s App. at 35. On the timeliness issue, the USPS
contended that a ten-month delay between Mr. Arnold’s
receipt of the OWCP’s notice of decision and the date he
filed the PFE was unreasonable.
On the merits, Mr. Arnold responded that “the sub-
stance of the [A]greement was that I would not pursue my
suit against my former manager at the USPS and they
would not continue to interfere with my disability claim.”
Id. at 32. Mr. Arnold argued that, otherwise, the Right-
to-File Clause would be an empty assurance. With regard
to the Inability Clause, Mr. Arnold contended that the
USPS’s interpretation was effectively taking advantage of
a “calculated legal ambiguity.” Id. He argued that the
Inability Clause served “to compel the Agency to
acknowledge my disability due to carpal tunnel. . . . No
other inability was ever discussed, alleged, or considered.”
Id.
On the timeliness issue, Mr. Arnold offered the follow-
ing explanation:
I realized in reading the Agency’s answers to the
OWCP last November that I had failed to antici-
pate the implications of the legalistic wording of
the agreement, and I hoped (without success) to
be able to save enough money to retain an attor-
ney before both appealing the OWCP’s decision
and filing a complaint with the MSPB. The
statement about timeliness in the MSPB Initial
Decision (11/20/2009) was not specific, and I as-
sumed it was the same period of one year (from
ARNOLD v. MSPB 5
11/8/2011) provided by the OWCP. I hope that
what has primarily been a financial impediment
will not be considered a disqualification of my
complaint.
Id. at 33. In subsequent submissions, Mr. Arnold stated
that “none of the cases referenced by the Postal Service
regarding timeliness are relevant to my situation, where
an inability to retain legal assistance and a presumption
of uniformity in the federal definition of timeliness were
involved.” Id. at 28. He also explained that “[a]t every
juncture in the proceedings at the MSPB but one, [the AJ]
has specified a date by which time a pleading must be
filed, and I exercised due diligence in complying with his
orders.” Id. at 27. Finally, Mr. Arnold asserted that the
USPS was not harmed by his delay in filing.
The AJ dismissed Mr. Arnold’s PFE as untimely. The
AJ determined that “[n]othing in the initial decision
would indicate that the time for filing a PFE with the
Board would correspond with the time for seeking review
of an OWCP decision.” Arnold v. U.S. Postal Serv., SF-
0752-09-0965-C-1, slip op. at 6 (M.S.P.B. May 15, 2013)
(Initial Decision). The AJ also found that Mr. Arnold did
not “exercise[] due diligence or ordinary prudence in
assuming he could delay filing his PFE until he had
secured legal representation.” Id. Finally, the AJ stated
that “whether or not the agency might be prejudiced by
the delay is not a factor before me.” Id. The full Board
denied the petition for review and affirmed the AJ’s
decision.
Mr. Arnold timely appealed and moved to proceed in
forma pauperis. We granted the motion. Arnold v. Merit
Sys. Prot. Bd., No. 14-3073 (Fed. Cir. Apr. 1, 2014), ECF
No. 9. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
6 ARNOLD v. MSPB
DISCUSSION
We must affirm a decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c) (2012); see Stout v. Merit Sys.
Prot. Bd., 389 F.3d 1233, 1237 (Fed. Cir. 2004) (reviewing
the Board’s timeliness decision in accordance with the
criteria of § 7703(c)). We review the Board’s legal deter-
minations de novo. Welshans v. U.S. Postal Serv., 550
F.3d 1100, 1102 (Fed. Cir. 2008).
On appeal, Mr. Arnold asks us to “order a resumption
of [his] case with MSPB against the USPS.” Informal Br.
of Pet’r at 2. He reiterates that, in the order dismissing
his initial appeal due to settlement, “there was no time
limit specified, no definition was provided of ‘a reasonable
period of time’ . . . . And for the MSPB to issue an unspec-
ified and apparently discretionary time limit, then treat it
as a deadline (still unspecified) fatal to my petition, is I
believe harsh and unreasonable.” Letter Br., Arnold v.
Merit Sys. Prot. Bd., No. 14-3073, at *1 (Fed. Cir. Feb. 15,
2014), ECF No. 6. Mr. Arnold contends he did not file
sooner because he did not realize he had to and that he
was saving money to be able to afford legal representa-
tion. Mr. Arnold further argues that “if there is a reason
to insist on timeliness in the filing of pleadings and peti-
tions, it would seem to be for the purpose of preserving
the interests of the parties involved.” Id. at 2. He con-
tends that “I am the party awaiting compensation from
the time I was disabled, and I continue to be the one
adversely affected by delay. To penalize me for, in effect,
having penalized myself is I believe unreasonable and
unjust.” Id.
The USPS responds that the reasons that Mr. Arnold
provided are not sufficient to excuse a ten-month delay in
ARNOLD v. MSPB 7
filing his PFE. It contends that nothing in the decision
dismissing his initial appeal due to settlement would lead
a reasonable person to conclude that the time for filing a
PFE with the Board would correspond to the time for
seeking review of an OWCP decision. The USPS argues
that saving money to hire an attorney does not provide
good cause for delay. Finally, it contends that the fact
that the agency may not have been harmed by the delay is
irrelevant so long as the petitioner has not shown that he
filed the PFE within a reasonable time.
The regulation governing PFEs states that a party
“may petition the Board . . . for enforcement of the terms
of the settlement agreement that has been entered into
the record.” 5 C.F.R. § 1201.182(a) (2012). It further
states that “[t]he petition must be filed promptly with the
regional or field office that filed the initial decision . . .
and it must describe specifically the reasons the petition-
ing party believes there is noncompliance.” Id. (emphasis
added).
Interpreting § 1201.182 in Kasarsky v. Merit Systems
Protection Board, we held that “an enforcement petition
alleging a breach of a settlement agreement must be filed
within a reasonable amount of time of the date the peti-
tioning party becomes aware of a breach of the agree-
ment.” 296 F.3d 1331, 1335 (Fed. Cir. 2002). We added
that “[t]he reasonableness of the time period depends on
the circumstances of each case” and that
[a] petition for enforcement is presumed to be
timely and subject to the jurisdiction of the Board
until challenged, either by the Board on its own
initiative or by the agency. As a result of such a
challenge, if on its face the petition is untimely,
then the burden is on the petitioner to show facts
establishing why the petition is not untimely.
Id. We reversed the Board’s decision in Kasarsky because
the Board erred in determining the date of accrual of the
8 ARNOLD v. MSPB
petitioner’s cause of action. Id. at 1336–37. In Poett v.
Merit Systems Protection Board, we suggested that a 14-
month delay would have been unreasonable, but reversed
because the Board incorrectly determined when the
petitioner had actual knowledge of the breach and that
the delay in fact amounted to only one month. 360 F.3d
1377, 1384 (Fed. Cir. 2004).
Because “[a] petition for enforcement is presumed to
be timely,” we conclude that the initial burden to show
untimeliness is on the party invoking the untimeliness
defense—here, the Board or the agency. Kasarsky, 296
F.3d at 1335. However, here we need not decide whether
the agency established that the PFE was untimely on its
face, because, even if it was facially untimely, we find that
the agency failed to fully consider whether Mr. Arnold’s
delay in filing his PFE was reasonable.
We begin with the proposition that “policy considera-
tions counsel against dismissals for untimely filing and
militate for providing employees with a hearing on the
merits of their appeals” and that “broad equitable princi-
ples of justice and good conscience should be applied”
when dealing with issues of timeliness. Walls v. Merit
Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994) (citing
Alonzo v. Dep’t of Air Force, 4 M.S.P.R. 180, 183–84
(1980)) (internal quotation marks omitted). Moreover, “‘if
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.’” Id. (quoting Alonzo, 4 M.S.P.R. at
184).
With these principles in mind, we conclude that the
Board did not fully consider whether Mr. Arnold’s ten-
month delay in filing his PFE was reasonable. We agree
with the Board that delaying filing to save money for an
attorney is not a reasonable excuse. But we hold that the
Board failed to address the merits of Mr. Arnold’s argu-
ARNOLD v. MSPB 9
ment whether his reliance on the one-year time limit to
challenge OWCP decisions, see 20 C.F.R. § 10.607(a)
(2011), was reasonable. The AJ stated only that nothing
in the Dismissal Order indicated that the time for filing a
PFE would correspond to the time for seeking review of
an OWCP decision. See Initial Decision at 6. But that
does not answer the question whether, in the absence of
any instruction as to what “reasonable” means in this
context, it was reasonable for Mr. Arnold to be guided by
the OWCP deadline. Cf. Walls, 29 F.3d at 1583–84 (re-
versing and remanding where a notice stated that an
appeal must be filed “within twenty (20) days” because it
was unclear whether the notice meant calendar or work-
ing days). Here, Mr. Arnold’s PFE was related to OWCP
proceedings because the purpose of both was to obtain
disability compensation. Furthermore, one-year time
limits are common in a disability context, see, e.g., 5
U.S.C. § 8337(b) (2012); id. § 8453. The AJ’s analysis,
which relied on another Board case where a ten-month
delay was found to be unreasonable, does not address Mr.
Arnold’s argument or explain why the OWCP deadline
was unreasonable for Mr. Arnold to rely upon. It thus
fails to follow our instruction to consider each case accord-
ing to its unique facts and circumstances. See Kasarsky,
296 F.3d at 1335.
This case involves a pro se petitioner who was told on-
ly to file within a reasonable time. He had no guidance on
what was reasonable. On remand, the Board must con-
sider the facts and circumstances of this case: that Mr.
Arnold was not given an indication of what a reasonable
period would be; Mr. Arnold’s pro se status; and Mr.
Arnold’s claim that he believed one year to be a reasona-
ble period of time given that his OWCP claim provided a
year in which to appeal. See id.; Walls, 29 F.3d at 1583;
Pfaehler v. Merit Sys. Prot. Bd., 783 F.2d 187, 189 (Fed.
Cir. 1986); see also Mendoza v. Merit Sys. Prot. Bd., 966
F.2d 650, 653–54 (Fed. Cir. 1992) (en banc). Because the
10 ARNOLD v. MSPB
facts of each case are different, the Board’s prior determi-
nation that a ten-month delay was unreasonable does not
answer the question whether Mr. Arnold had a reasonable
excuse for his ten-month delay. 2
CONCLUSION
We vacate and remand for further proceedings con-
sistent with this opinion.
VACATED AND REMANDED
2 We note that the challenges of this case could be
resolved by the Board adopting a discrete deadline for
filing timely PFEs.