NOTE: This disposition is nonprecedential
United States Court of Appeals for the Federal Circuit
2007-3007
PATRICK M. WHITE,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Patrick M. White, of Peoria, Arizona, pro se.
Raymond W. Angelo, Acting Associate General Counsel, United States Merit
Systems Protection Board, of Washington, DC, for respondent. With him on the brief
were B. Chad Bungard, General Counsel, Rosa Koppel, Deputy General Counsel, and
Thomas N. Auble, Attorney.
Appealed from: United States Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3007
PATRICK M. WHITE
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
___________________________
DECIDED: April 16, 2007
___________________________
Before SCHALL, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit
Judge.
PER CURIAM.
Patrick White (“Mr. White”) seeks review of a final decision of the Merit Systems
Protection Board (“Board”) dismissing his appeal as untimely filed without a showing of
good cause for the delay. White v. Dep’t of Justice, 103 M.S.P.R. 312 (Sept. 7, 2006).
We affirm.
BACKGROUND
Mr. White retired from his position as a Heating, Ventilation, and Air Conditioning
Supervisor for the Bureau of Prisons (the “agency”) on February 6, 2001. On May 31,
2001 he filed an Equal Employment Opportunity (“EEO”) complaint alleging that the
agency had discriminated against him on the basis of disability and as a result he was
forced to retire. After an investigation was conducted by an EEO investigator, Mr. White
requested a hearing before an administrative judge of the Equal Employment
Opportunity Commission. However, on January 20, 2004 the administrative judge
issued an order of dismissal because, as a result of Mr. White’s additional allegation of
constructive retirement, the matter was a “mixed case” and had to be appealed to the
Board. The administrative judge ordered that the case be returned to the agency and
processed as a mixed case. As a result, on February 6, 2004, the case was submitted
as a mixed case to the agency for a final decision.
On August 2, 2005, the agency issued a final decision stating that Mr. White had
not established his claim. This was 543 days after the case was filed. The final
decision was transmitted by certified mail to Mr. White’s home and a receipt was signed
for by his mother-in-law on August 5, 2005. The letter also informed Mr. White that he
had thirty days from the date that he received the letter to file an appeal with the Board.
Because the last day of that period fell on a Sunday, and the following Monday was a
federal holiday, the notice of appeal had to be filed on Tuesday, September 6, 2005.
Mr. White did not file his appeal to the Board until five days later on September 11,
2005.
On February 23, 2006, the administrative judge dismissed the appeal for lack of
jurisdiction. Mr. White filed a petition for review to the Board. The Board issued a final
opinion and order from which Mr. White appeals here. It dismissed Mr. White’s appeal
as being untimely. The Board found that the appeal was untimely because it was not
filed within the thirty days required by 5 C.F.R. § 1201.154(b)(1) and good cause was
not shown for the delay.
2007-3007 2
Mr. White filed an appeal to this court from the Board’s decision. This court has
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard of Review
This court must affirm the Board’s decision unless it is “(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).
B. Timeliness of Filing of Appeal
The requirements for filing a timely appeal to the Board in a mixed case are
specified by 5 C.F.R. § 1201.154(b), which states:
(1) An appeal must be filed within 30 days after the [employee] receives
the agency resolution or final decision on the discrimination issue; or
(2) If the agency has not resolved the matter or issued a final decision on
the formal complaint within 120 days, the [employee] may appeal the
matter directly to the Board at any time after the expiration of 120 calendar
days.
5 C.F.R. § 1201.154(b). This requirement may only be excused if “a good reason for
the delay is shown.” 5 C.F.R. § 1201.22(c).
Mr. White argues that under 5 C.F.R. § 1201.154(b)(2), because the agency
issued its final decision 543 days after his complaint was submitted as a mixed case,
the thirty day time limit of § 1201.154(b)(1) did not apply and he could therefore file his
appeal at any time. The government disagrees with Mr. White’s interpretation, arguing
that § 1201.154(b)(2) “does not create an open-ended right to appeal, but rather
ensures the complainant the right to come to the [Board] should his or her employing
agency not promptly process a discrimination complaint.” According to the government,
2007-3007 3
in all cases in which the agency has issued a final decision the employee must file his
appeal within thirty days of receipt.
When construing a regulation, we look first to the underlying statute to determine
whether or not the regulation is in compliance with the statute. See Garcia v. Dep’t of
Homeland Sec., 437 F.3d 1322, 1338 (Fed. Cir. 2006) (en banc). We then examine the
language of the regulation to determine its plain meaning. Roberto v. Dep’t of the Navy,
440 F.3d 1341, 1350 (Fed. Cir. 2006). In doing so, we examine the entire regulation in
question rather than just the sentences at issue in isolation. Reflectone, Inc. v. Dalton,
60 F.3d 1572, 1577-78 (Fed. Cir. 1995) (en banc). Moreover, we give broad deference
to an agency’s interpretation of its own regulation, “even when that interpretation is
offered in the very litigation in which the argument in favor of deference is made.”
Cathedral Candle Co. v. U.S. Int’l Trade Comm’n, 400 F.3d 1352, 1364 (Fed. Cir. 2005).
The agency's construction of its own regulation[] is ‘of controlling weight unless it is
T
plainly erroneous or inconsistent with the regulation.’” Id. (quoting Bowles v. Seminole
Rock & Sand Co., 325 U.S. 410, 414 (1945)).
Here, the agency’s construction is not plainly erroneous or inconsistent with the
regulation as a whole. Congress has granted the Board “the authority to prescribe such
regulations as may be necessary for the performance of its functions.” 5 U.S.C.
§ 1204(h). Acting under this authority, the Board issued 5 C.F.R. § 1201.154, which
prescribes the time for the filing of appeals. The language of § 1201.154(b)(1) imposes
an absolute requirement that appeals be filed within thirty days of the employee’s
receipt of the agency’s decision. Section 1201.154(b)(2) only applies in the alternate
circumstance in which no final decision has been issued. This understanding of
2007-3007 4
§ 1201.154(b) is further supported by the purpose of the regulation. By preventing an
agency from avoiding an appeal by simply never issuing a final decision,
§ 1201.154(b)(2) ensures that employees have a right to appeal in all cases. Where
that final decision has been issued, even after a delay of more than 120 days, it is not
inconsistent with the regulation to require that the employee file his appeal within thirty
days. If the thirty day time limit were not to apply, an employee could potentially file an
appeal months, years, or even decades after a final decision had been issued. This
would be inconsistent with the purpose of a regulation that acts to bring cases to a
timely close. We therefore find that the Board did not abuse its discretion by finding that
Mr. White was required by § 1201.154(b) to file his appeal within thirty days of receiving
the final decision from the agency.
Mr. White alternatively argues that his appeal was timely filed within thirty days of
his receipt of the final decision, as required by § 1201.154(b)(1), because he did not
receive the decision until August 13, 2005 when he returned from a trip to Arizona.
However, this court has long held that constructive receipt will begin the period for filing
an appeal. Anderson v. Dep’t of Transp., 735 F.2d 537, 541 (Fed. Cir. 1984) (holding
that a notice sent to employee’s address and signed for by employee’s mother was
sufficient to begin the time period). Here, the agency sent the decision letter by certified
mail to Mr. White’s home address where it was signed for by his mother-in-law. The
Board did not abuse its discretion by finding that Mr. White had thereby constructively
received the letter. Because Mr. White was required to file his appeal within thirty days
of that receipt, the Board properly found that Mr. White’s appeal was not timely.
C. Good Cause for Delay in Filing of Appeal
2007-3007 5
While the regulations do not establish any specific test for determination of good
cause being shown for the untimely filing of an appeal, this court has noted “that ‘broad
equitable principles of justice and good conscience’ should be applied in good cause
determinations.” Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994)
(quoting Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 184 (1980)). However,
“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.” Mendoza v. Merit Sys. Prot. Bd., 966
F.2d 650, 653 (Fed. Cir. 1992) (en banc).
Mr. White contends that his appeal should not have been dismissed because he
had good cause for the late filing. In support of this argument Mr. White cites health
problems of his representative and his belief that the time period did not begin to run
until he had actually received the letter. He also urges us to consider that the five day
delay was not prejudicial to the agency, especially in light of the significant delay by the
agency in issuing its final decision.
However, the Board did consider the short length of Mr. White’s delay in filing but
recognized that this court has held that even minimal delays do not justify a waiver of
the filing deadline if a good reason for the delay is not show. See Rowe v. Merit Sys.
Prot. Bd., 802 F.2d 434, 437-38 (Fed. Cir. 1986) (finding no good cause to excuse four-
day delay in filing). The Board found that Mr. White had not shown that his
representative’s health problems hindered the timely filing of his appeal and that Mr.
White had not provided any evidence to support his claim that he was diligent in
attempting to file his appeal. Specifically, the Board found that Mr. White had a
2007-3007 6
personal responsibility to monitor the progress of his appeal and that he had made no
such showing. See Rowe, 802 F.2d at 437-38. These findings are supported by
substantial evidence in the record. Therefore, the Board did not abuse its discretion in
finding that Mr. White had failed to show good cause for his delay in filing and that the
filing deadline should be waived.
CONCLUSION
We conclude that the Board has not committed legal error and its decision that
Mr. White’s appeal was untimely filed without a showing of good cause for his delay is
supported by substantial evidence and was not an abuse of discretion. The decision of
the Board is affirmed.
No costs.
2007-3007 7