Gary F. Mueller, Jerry E. Shechtman and Andrew T. Nulty v. United States Postal Service, and Merit Systems Protection Board, Intervenor

76 F.3d 1198, 1996 U.S. App. LEXIS 2541
CourtCourt of Appeals for the Federal Circuit
DecidedFebruary 20, 1996
Docket20-1010
StatusPublished
Cited by55 cases

This text of 76 F.3d 1198 (Gary F. Mueller, Jerry E. Shechtman and Andrew T. Nulty v. United States Postal Service, and Merit Systems Protection Board, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gary F. Mueller, Jerry E. Shechtman and Andrew T. Nulty v. United States Postal Service, and Merit Systems Protection Board, Intervenor, 76 F.3d 1198, 1996 U.S. App. LEXIS 2541 (Fed. Cir. 1996).

Opinion

BRYSON, Circuit Judge.

In this consolidated case, Gary F. Mueller, Jerry E. Sheehtman, and Andrew T. Nulty petition for review of a decision of the Merit Systems Protection Board dismissing their appeals as untimely filed. Because the Board did not abuse its discretion in finding that the petitioners failed to establish good cause to excuse their untimely filings, we affirm.

I

Once again we are faced with a question arising from the restructuring of the United States Postal Service in 1992 and 1993. See Krizman v. Merit Sys. Protection Bd., 11 F.3d 434 (Fed.Cir.1996); Schall v. United States Postal Serv., 73 F.3d 341 (Fed.Cir.1996). Petitioners Sheehtman and Nulty accepted an early retirement offer from the Postal Service, under which they received lump-sum bonuses equal to six months of their salary in exchange for retiring on or before November 20, 1992. Petitioner Mueller took discontinued service retirement on July 2, 1993, and did not receive the lump-sum bonus.

Later in July 1993, the Merit Systems Protection Board held for the first time that the assignment of a preference-eligible employee to a lower-graded position during the Postal Service’s restructuring constituted an appealable reduction-in-force (RIF) action. See Brown v. United States Postal Serv., 58 M.S.P.R. 345 (1993). Preference-eligible employees in the Postal Service enjoy certain rights (known as “RIF rights”) when they are subjected to a reduetion-in-force action. Those rights include the right to appeal to the Board from a RIF action, such as a demotion ordered as part of an agency reorganization. See generally Krizman v. Merit Sys. Protection Bd., supra.

After the Board’s decisions in Brown and other similar cases, the three petitioners, all *1200 of whom were preference-eligible employees, appealed to the Board. They alleged that their retirements were involuntary because they were not told that assignments to lower-graded positions in the course of the Postal Service restructuring would be considered RIF actions, and because they would not have retired if they had known they would be entitled to RIF rights in connection with the restructuring.

The same administrative judge was assigned to all three petitioners’ appeals. At the outset, she advised each petitioner that his appeal appeared to be untimely and that there was a question of Board jurisdiction over the appeals, since retirements are presumed to be voluntary. She therefore ordered each petitioner to show good cause for his untimely filing and to amend his petition to allege that his retirement was the result of duress, coercion, or misrepresentation by the agency.

In response to the order, Mueller and Nulty submitted arguments but no evidence; Shechtman submitted argument and some documentary evidence. On the question of timeliness, the petitioners contended that the Postal Service’s restructuring process “was tantamount to an appealable reduction in force” and that the agency was therefore required to provide the petitioners with “notice of [their] right of appeal [to the Board] following the restructuring process.” The agency’s failure to provide them with notice of their appeal rights, the petitioners argued, “constitutes good cause for the late filing of [their] appeal[s].”

The administrative judge consolidated the petitioners’ eases and issued a decision addressing only the timeliness issue. Because the appeals were filed with the Board between 14 and 23 months after the petitioners’ respective retirements, the administrative judge found that the appeals were all substantially out of time. By regulation, the Board at that time required an appeal from an agency action to be filed within 20 days of the action appealed from. 5 C.F.R. § 1201.22(b) (1992).

In addressing the petitioners’ argument that they had established good cause for their failure to file timely appeals, the administrative judge relied on the opinion of the Merit Systems Protection Board in Jones v. United States Postal Service, 65 M.S.P.R. 306 (1994), in which the Board refused to find good cause for an untimely appeal in a similar case. Following the analysis in Jones, the administrative judge held that because retirements are presumed to be voluntary, the Postal Service was not required to give the petitioners notice of their right to appeal from their retirements unless the petitioners put the Postal Service on notice that they considered their retirements to be involuntary. Because there was no evidence in the record that the petitioners had put the agency on notice that they considered their retirements involuntary, the administrative judge held that the agency had not violated any duty to give the petitioners notice of their right to appeal to the Board. Finding that there was no evidence that the petitioners had otherwise exercised due diligence in discovering and pursuing their appeal rights, the administrative judge then dismissed each of the appeals as untimely.

Shechtman, Mueller, and Nulty petitioned the full Board for review of the administrative judge’s decision. In their petition to the Board, they argued, inter alia, that the administrative judge should have reopened the record on the issue of timeliness to permit them to submit evidence that before retiring they had all alerted the Postal Service that they considered their retirements involuntary. The Board denied the petition, and the petitioners then filed a joint petition for review by this court.

II

The petitioners argue that the administrative judge erred in holding that the Postal Service was not required to advise them of their right to appeal from their retirements. In addition, they contend that the Postal Service misinformed them about the nature of the restructuring in a manner that induced them to retire, and that the agency’s failure to advise them that the restructuring constituted a reduction in force justified their delay in filing their appeals.

*1201 A

The petitioners make only passing reference to the argument that they raised in their response to the administrative order regarding the timeliness issue — the argument that the entire restructuring process “was tantamount to an appealable reduction in force” and that the agency should have provided them with notice of their right to appeal to the Board “following the institution of the restructuring process.” The lack of attention to that argument is justified, because the argument is plainly without merit. It is inaccurate to refer to the entire restructuring process as “an appealable reduction in force.” The OPM regulations on reductions in force define particular employment actions, such as demotions in the course of a reorganization, as RIF actions from which an employee may appeal to the Board; persons subject to those actions are entitled to notice of their appellate rights. See 5 C.F.R. § 351.901.

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Bluebook (online)
76 F.3d 1198, 1996 U.S. App. LEXIS 2541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gary-f-mueller-jerry-e-shechtman-and-andrew-t-nulty-v-united-states-cafc-1996.