Corrected:November 06,2007
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3095
LARRY M. SKAGGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Gayle E. Miller, Advocacy Center for Persons With Disabilities, Inc., of Hollywood,
Florida, for petitioner. Of counsel was Mizell Campbell, Jr.
Sara B. Rearden, Attorney, Office of the General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With her on the brief
were B. Chad Bungard, General Counsel, Rosa M. Koppel, Deputy General Counsel,
and Jeffrey A. Gauger, Acting Associate General Counsel.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3095
LARRY M. SKAGGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
DECIDED: November 6, 2007
__________________________
Before BRYSON, Circuit Judge, PLAGER, Senior Circuit Judge, and KEELEY, ∗ Chief
Judge.
Opinion for the court filed by Senior Circuit Judge Plager. Dissenting opinion filed by
Circuit Judge Bryson.
PLAGER, Senior Circuit Judge.
Larry M. Skaggs was separated after twenty-two years of service in the
Department of the Navy because he was found to be physically unable to perform the
duties of his position. Through counsel, an attorney with the Advocacy Center for
Persons With Disabilities, a non-profit advocacy organization that is funded through
federal grants and does not charge its clients for services, Mr. Skaggs filed an appeal
with the Merit Systems Protection Board (“Board”) twelve hours past the 30-day
∗
Honorable Irene M. Keeley, Chief Judge of the United States District Court
for the Northern District of West Virginia, sitting by designation.
deadline. The administrative judge (“AJ”) assigned to the case dismissed the appeal as
untimely, finding that the attorney was negligent and therefore Mr. Skaggs failed to
show good cause for the delay in filing. See 5 C.F.R. § 1201.22(c). In due course the
decision of the AJ became the final decision of the Board. Mr. Skaggs timely appeals
the Board’s decision to this court.
Under the circumstances of this case—the petitioner relied on pro bono counsel
from a Government-sponsored advocacy organization located 300 miles from his
residence; the attorney missed the filing deadline by less than a day; the attorney stated
that he worked diligently on the appeal in the days immediately preceding the filing day;
and the agency only briefly noted the timeliness issue and proceeded to address the
merits of the case—we are not comfortable summarily affirming the AJ’s decision not to
waive the filing deadline, particularly in view of the cursory manner in which the AJ
addressed the issue. We are aware that whether the regulatory time limit for an appeal
should be waived is a matter within the broad discretion of the Board. Mendoza v. Merit
Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Nevertheless, the Board
early on stated that, though there is a need for finality in personnel actions, “[t]here are
strong policy considerations that employees be given a hearing on the merits of their
cases and that they be ensured a fair opportunity to secure from the Board an
independent review of agency action.” Alonzo v. Dep’t of the Air Force, 4 M.S.P.B. 262,
263 (1980). Further, the Board said that “[g]enerally, . . . in cases such as these, any
doubt about whether good cause has been shown should be resolved in favor of an
appellant.” Id. at 266.
2007-3095 2
In his decision in this case, the AJ seems to have given little consideration to the
range of factors relevant to whether good cause for delay has been shown, and seemed
to focus primarily on the question of whether Mr. Skaggs’ attorney may have been
negligent in failing to file on time. This is too narrow an approach. See Walls v. Merit
Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). 1 We believe that Mr. Skaggs is
entitled to a more thorough evaluation of whether a waiver of the time limit is
appropriate in his case, and in the interest of justice we vacate the Board’s dismissal of
the case and remand for further consideration of whether good cause exists for the
short filing delay.
1
In Alonzo, the Board identified seven specific factors to be included in the
consideration: (1) the length of the delay; (2) whether the employee knew of the time
limit; (3) circumstances beyond the employee’s control; (4) the presence or absence of
negligence; (5) whether neglect was excusable neglect; (6) unavoidable casualty or
misfortune; and (7) prejudice to the agency. 4 M.S.P.B. at 264. Though some of our
cases subsequently seemed to focus on only one or another factor, especially whether
negligence by the employee’s attorney was at the root of the problem, see, e.g., Rowe
v. Merit Sys. Prot. Bd., 802 F.2d 434 (Fed. Cir. 1986), in the 1994 Walls case we
expressly approved the Alonzo factor analysis, in which no one factor is determinative.
That remains the law of this Circuit. The length of the delay is as important as any other
factor, and should be given proper weight on remand along with the other factors.
2007-3095 3
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3095
LARRY M. SKAGGS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
BRYSON, Circuit Judge, dissenting.
I would affirm the decision of the Board. Mr. Skaggs had a full opportunity to
explain the reason for his late filing, and he chose to do so through his attorney’s
affidavit. His attorney stated that he completed Mr. Skaggs’ appeal on the afternoon of
June 15, 2006, but did not file it electronically until after noon on the following day,
which was one day late. The attorney failed to provide any explanation for not
electronically filing the appeal on the afternoon of June 15. The clear implication of the
absence of any explanation for that conduct was that the late filing was the product of
negligence or oversight. Under those circumstances, it was not inappropriate for the
administrative judge to note that the attorney provided no valid explanation for the delay
and to point out that attorney negligence or oversight does not constitute a sufficient
basis for waiving timeliness requirements under the Board’s regulations and decisions.
By statute, the Board is entitled to prescribe procedural rules governing Board
appeals. 5 U.S.C. § 7701(a). The Board has prescribed rules for timely filing of
appeals and for waiving those requirements in 5 C.F.R. § 1201.22(c) of its regulations
(appeal must be filed within 30 days and “will be dismissed as untimely filed unless a
good reason for the delay is shown”) and in 5 C.F.R. § 1201.12 (administrative judge
“may, for good cause shown, waive a Board regulation”). The Board has interpreted the
“good reason” or “good cause” exception to the 30-day filing requirement through case
law. In its decisions, the Board has consistently held that, absent a specific reason not
to attribute an attorney’s conduct in handling an appeal to the appellant, attorney
negligence that results in an untimely filing does not constitute good cause for the delay.
See, e.g., Lands v. Dep’t of the Air Force, 95 M.S.P.R. 593, 596 (2004); DePierro v.
U.S. Postal Serv., 54 M.S.P.R. 251, 253 (1992); Goldberg v. Dep’t of Defense, 39
M.S.P.R. 515, 518 (1989); McAdory v. Dep’t of Justice, 6 M.S.P.R. 112, 114 (1981).
That is true regardless of the length of the delay. See McBurnett v. Dep’t of the Army,
37 M.S.P.R. 395, 397 (1988) (“Negligence on the part of an appellant or his attorney
does not constitute good cause for extending a filing deadline, even when the delay is
only one (1) day.”); Stromfeld v. Dep’t of Justice, 25 M.S.P.R. 240, 241 (1984) (same).
This court has upheld the Board’s determination that attorney negligence does not
constitute “good cause” warranting a waiver of the timeliness requirement. Rowe v
Merit Sys. Prot. Bd., 802 F.2d 434, 437-38 (Fed. Cir. 1986).
Despite being given the opportunity to do so, Mr. Skaggs has not pointed to any
valid excuse for the filing delay in this case, and the record does not support any
explanation other than negligence or oversight by an attorney who was working on Mr.
2007-3095 2
Skaggs’ behalf. This court’s decision in Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578
(Fed. Cir. 1994), on which the majority relies, does not support remand here. In Walls,
this court criticized the Board for not considering the length of the delay in determining
whether there was good cause for a pro se appellant’s untimely filing of his appeal. The
court explained that the short period of the delay tended to show “not only the absence
of negligence on part of petitioner but also that he demonstrated due diligence and
ordinary prudence in filing the appeal within the regulatory time period as construed by
him.” The court found that Mr. Walls had reasonably misinterpreted the agency’s notice
of the time for filing to refer to “working days” rather than “calendar days”; his short
delay in filing was consistent with and supported that explanation. In this case, by
contrast, the administrative judge considered the shortness of the delay, but found that
it did not strengthen Mr. Skaggs’ explanation for the delay because his attorney, unlike
Mr. Walls, offered no explanation for the delay that was consistent with ordinary
prudence. The shortness of the delay therefore does not serve, as it did in Walls, to
require that we vacate the Board’s finding of a lack of good cause.
2007-3095 3