Juanita C. Mendoza v. Merit Systems Protection Board

966 F.2d 650, 92 Daily Journal DAR 8069, 1992 U.S. App. LEXIS 13319

• Court: Court of Appeals for the Federal Circuit
• Decided: June 10, 1992
• Docket: 21-1131
• Status: Published

Opinions

NIES, Chief Judge.

Juanita C. Mendoza appeals from the October 9,1990, decision of the Merit Systems Protection Board (MSPB or Board), No. SE08319010505, dismissing for untimeliness her appeal of an Office of Personnel Management (OPM) reconsideration decision. A panel of the court reversed the Board’s decision and remanded for consideration of the merits. Mendoza v. Merit Systems Protection Bd., 949 F.2d 391 (Fed. Cir.1991). The government petitioned for rehearing and suggested rehearing in banc (1) disputing the factual basis for the panel decision and (2) questioning the propriety of the remand order which directed that the Board address the merits, rather than merely reconsider the timeliness issue. A divided panel denied the petition for rehearing and the court voted to rehear the case in banc. By order dated February 21, 1992, the court vacated the earlier judgment and withdrew its accompanying opinion. While the government’s challenge to the proper scope of the remand order raises a significant legal issue, the in banc court concludes, upon consideration of the entirety of the record which has now been obtained by the court, that the Board’s decision must be affirmed.

BACKGROUND

Juanita Mendoza, the widow of a Filipino veteran of World War II and civilian employee of the United States government, applied for survivor annuity benefits under the Civil Service Retirement System (CSRS). On May 7, 1990, the OPM issued a final decision, denying Ms. Mendoza’s application for an annuity, finding that her deceased husband had never served in a civilian position covered by the CSRS. The OPM informed Ms. Mendoza of her right to appeal the decision to the Board, and provided her with both instructions on how to file an appeal and a copy of the Board’s regulations. The OPM specifically emphasized the 25-day time limit for appealing an OPM decision to the Board. Ms. Mendoza filed her appeal on July 6, 1990 — approximately five weeks after the 25-day limitation period had expired.¹ In her letter, Ms. Mendoza recognized that her appeal was untimely and requested a waiver of the timeliness requirement stating that she was “very old and sickly.” She also stated that she could not provide a doctor’s certificate explaining her condition because she could not afford to go to a doctor.

The Administrative Judge issued an “Acknowledgment Order,” apparently a form document, which gave general information and alternative directives on processing the appeal depending upon the circumstances. If an appeal was untimely, the party was ordered to file evidence and argument showing that “good cause existed for the delay.” The OPM submitted its file on the matter as required and at the same time moved for dismissal because of untimeliness and because “no evidence [was] submitted to establish good cause to waive the time limit.” A copy of this paper was served oh Ms. Mendoza. The Administrative Judge then issued a Show Cause Order, requesting evidence and argument showing that “good cause existed for the delay.” Upon receiving no response within the 30-day period set in that Order or even prior to the date for closing the record, the Administrative Judge granted the OPM’s motion for dismissal. After the record closed, Ms. Mendoza filed a letter in response to the Show Cause Order. However, her letter presented no evidence or argument directed to showing good cause for the delayed filing. She merely asserted her entitlement to an annuity. Ms. Mendoza timely filed a petition for review with the Board. Again, her pleading merely asserted entitlement and contained no reference to untimeliness, waiver, or good cause for the delay in filing her appeal. Upon denial of that petition, she timely appealed to this court.

Although Ms. Mendoza’s appeal to this court does not directly address the basis for the Board’s decision,² the only issue raised by the record is whether the Board abused its discretion in dismissing Ms. Mendoza’s case by reason of untimely filing.

DISCUSSION

I.

MSPB regulations provide that an appeal from an OPM decision which does not set an effective date must be filed within 25 days of the decision’s issuance. 5 C.F.R. § 1201.22(b) (1991). If the appeal is not filed within this time period, it will be dismissed as untimely unless the petitioner shows “a good reason for the delay.” 5 C.F.R. § 1201.22(c). See also 5 C.F.R. § 1201.12 (1991) (Board may waive procedural regulation upon showing, of good cause). Because Ms. Mendoza’s appeal, by her own admission, was filed outside the limitation period, we need only consider the issue of whether the Board improperly denied her a waiver based on her initial request.

We have often stated that 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. Turner v. Merit Systems Protection Bd., 806 F.2d 241, 246 (Fed.Cir.1986); Rowe v. Merit Systems Protection Bd., 802 F.2d 434, 437 (Fed.Cir.1986); Sheeran v. Merit Systems Protection Bd., 746 F.2d 806, 807 (Fed.Cir.1984); Young v. Department of Commerce, Census Bureau, 737 F.2d 1029, 1031 (Fed.Cir.1984); Phillips v. United States Postal Serv., 695 F.2d 1389, 1390 (Fed.Cir.1982). On appeal, we will disturb the grant or denial of such a waiver only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. § 7703(c) (1988). See also Bacashihua v. Merit Systems Protection Bd., 811 F.2d 1498, 1500 (Fed.Cir.1987); Phillips, 695 F.2d at 1390.

Delay is excusable where, under the circumstances, a petitioner exercises diligence or ordinary prudence. Phillips, 695 F.2d at 1391. The burden is on the petitioner to demonstrate excusable delay. Id. Thus, before the Board, the burden was on Ms. Mendoza to prove facts which would show that she exercised diligence and ordinary prudence in filing her appeal five weeks late.

In initiating her appeal to the MSPB, Ms. Mendoza included a request for a waiver of the 25-day time limitation for appealing the subject OPM decision, stating that she was “very old and sickly.” The OPM moved to dismiss because she submitted no evidence in support of the stated cause for the delay. The only evidence before the Administrative Judge at that point was the agency’s file. In that file, the only evidence respecting either Ms. Mendoza’s health or age is that she was born in 1925 and would have been about 65 or 66 years old. The Administrative Judge’s Order, dated August 17, 1990, requiring Ms. Mendoza to submit, within 30 days, evidence of facts showing good cause was clearly not arbitrary or capricious. It was Ms. Mendoza’s obligation to make an appropriate response to the Order. A petitioner who ignores an order of the Administrative Judge does so at his or her peril. Litigants before the Board, whether rich or poor, whether resident abroad or in the United States, are obligated to respect the Board, its procedures, including deadlines, and the orders of the Board’s judges. The doors of the tribunal are open to all claimants but only on the same terms. This is the essence of due process and equal treatment under the law.

Ms. Mendoza was afforded an opportunity for review of OPM’s decision rejecting her application for an annuity, but she was entitled to that review only if she complied with the MSPB’s regulations and orders. In this case, in spite of a specific Order from the Administrative Judge requesting evidence showing that good cause existed for the delay, Ms. Mendoza never once thereafter referred to timeliness, waiver, or good cause. She simply and completely ignored the Administrative Judge’s directives.

Had the agency not challenged Ms. Mendoza’s vague assertions of old age and illness, the Administrative Judge might have decided the issue of timeliness on the basis of her allegations alone. However, the OPM clearly put the matter in issue and it was, therefore, the Administrative Judge’s obligation to pursue the matter further with a Show Cause Order containing the directive to submit evidence in support of the allegations. After the Show Cause Order failed to bring a response to the waiver issue, the Administrative Judge dismissed the action.

The court does not expect a pro se litigant to be made to jump through a confusing array of procedural hoops. However, there was nothing mysterious or incomprehensible in the Show Cause Order. That Order was clear and unambiguous.³ It was directed solely to the issue of “whether Ms. Mendoza’s appeal was timely filed” and states: “The appellant is ORDERED to file evidence showing that her appeal was timely filed or that good cause existed for the delay” (emphasis added). Ms. Mendoza never responded in any manner to that plain Order. We, therefore, hold that the Administrative Judge did not abuse her discretion by dismissing the appeal by reason of Ms. Mendoza’s failure to show good cause for not filing the appeal in a timely manner.

II.

Because we hold that the appeal was properly dismissed, the second issue presented in the government’s suggestion for rehearing in banc is moot.

CONCLUSION

The dismissal of Ms. Mendoza’s action is

AFFIRMED.

1 . The postmark date is deemed the filing date. Cantrell v. United States Postal Service, 32 M.S.P.R. 248, 250 n. 1 (1987).

2 . While pro se, Mendoza’s pleadings appear to have been phrased by someone familiar with legal procedures. Foreign counsel who do not become members of the bar of this court may not sign or file pleadings for a party.

3 . The government argues that Ms. Mendoza did not respond to two orders to establish timeliness, the first being the Acknowledgment Order. While the government is technically correct, we decline to rely on her failure to reply to the first Order. The directive contained therein is confusing. It states, after noting Ms. Mendoza’s appeal appeared to be untimely, inter alia: "I ORDER you to file evidence and argument showing that your appeal was timely refiled. ...” The reference to “refiled” makes no sense. However, any inadequacies of the Acknowledgment Order were overcome by the clear direction of the Show Cause Order.