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Herring v. Merit Systems Protection Board

United States Court of Appeals, Federal Circuit

February 18, 2015


Petition for review of the Merit Systems Protection Board in No. DC844E120778-I-1.

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, Merit Systems Protection Board, Washington, DC, argued for respondent. Also represented by BRYAN G. POLISUK.

Before REYNA, WALLACH, and TARANTO, Circuit Judges. OPINION filed by Circuit Judge WALLACH. Dissenting opinion filed by Circuit Judge REYNA.


Page 1012

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 circumstances 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.


In March 2010, Ms. Herring was removed from her position as a cytotechnologist with the Department of the Navy.

Page 1013

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 necessary documents and payment had been received),[1] Ms. 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).


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 particular 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) (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, 122 S.Ct. 431, 151 L.Ed.2d 323 (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 determining 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 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

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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.

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 factors).

In its Final Order, the Board cited Alonzo and Smith and mentioned several of their factors, but did not systematically apply those factors to Ms. Herring's case. See Final Order 3-5. Indeed, most of the factors were not discussed at all. See id. The Board did, ...

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