Leonard L. Nelson v. Federal Deposit Insurance Corporation

83 F.3d 1375, 1996 U.S. App. LEXIS 10003, 1996 WL 211766

• Court: Court of Appeals for the Federal Circuit
• Decided: April 30, 1996
• Docket: 95-3660
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge MICHEL. Concurring and dissenting opinion filed by Circuit Judge NEWMAN.

MICHEL, Circuit Judge.

Leonard L. Nelson appeals from the June 1,1995 decision of the Merit Systems Protection Board (Board), Nelson v. Federal Deposit Ins. Corp., 68 M.S.P.R. 1 (1995), dismissing his petition for review as untimely filed. The appeal was submitted for decision on the briefs on February 6, 1996. Because the Board did not abuse its discretion in dismissing the petition for review in light of Nelson’s failure to demonstrate that good cause existed to excuse its untimeliness, we affirm.

BaokgRound and Analysis

In October 1994, the FDIC discontinued the Rent Differential Allowance it had provided Nelson in connection with his reassignment from Kansas City to the agency’s Chicago regional office in 1992. He appealed the FDIC’s action to the Board in December 1994. In his January 26, 1995 initial decision, the Administrative Judge (AJ) dismissed Nelson’s appeal for lack of jurisdiction, reasoning that “[tjhere is no law, rule, or regulation that renders an agency’s denial of relocation expense allowances directly ap-pealable to the Board.” The AJ, following standard practice regarding notification of the 35-day time limit imposed by 5 C.F.R. § 1201.114(d), also informed Nelson in writing that “[t]his initial decision will become final on March 2, 1995, unless a petition for review is filed by that date or the Board reopens the ease on its own motion.”

On April 14, 1995, 43 days after the deadline correctly set forth in the initial decision had passed, Nelson filed a petition for review with the full Board. Nelson also submitted a sworn statement with the petition, in which he attempted to demonstrate that good cause existed to excuse the untimeliness of his filing. Specifically, Nelson contended that it was not until after the March 2, 1995 deadline had passed that he learned of the Board’s May 1994 decision in Fox v. Federal Deposit Insurance Corp., 62 M.S.P.R. 447 (1994), a decision that he advanced to demonstrate that the AJ erred in dismissing his appeal for lack of jurisdiction.

The Board dismissed Nelson’s petition, concluding that he had failed to establish good cause for its untimely filing. Specifically, the Board reaffirmed the principle “that the discovery of additional legal arguments after the time period for filing a petition for review does not constitute good cause for waiver of the filing deadline....” Nelson, 68 M.S.P.R. at 3 (citing Acree v. United States Postal Service, 64 M.S.P.R. 566, 569 (1994), and Puckett v. Department of the Air Force, 56 M.S.P.R. 25, 27 (1992)). We discern neither legal error nor any abuse of discretion in the Board’s conclusion that Nelson failed to establish good cause for the untimeliness of his petition. Even if Fox had issued between March 2, the due date of Nelson’s petition, and April 14, the date he actually filed it, its discovery by the petitioner cannot constitute good cause for untimeliness under cases such as Aeree and Puckett. That Fox issued some five months before the FDIC took the action Nelson seeks to overturn makes it all the clearer that the Board did not abuse its discretion. Accordingly, we must affirm its decision. 5 U.S.C. § 7703(c) (1995).

The Board also “den[ied]” Nelson’s request that the Board reopen the appeal “on its own motion” pursuant to 5 C.F.R. § 1201.118,¹ providing a separate ground of decision.² Nelson, 68 M.S.P.R. at 2. It explained its decision not to reopen the appeal as follows:

Generally, the Board will not reopen an appeal to cure an untimely filing. The Board may reopen an appeal on its own motion to correct its own errors or to modify its judgment, decree, or order. However, in this appeal, the appellant has not shmm that an error was made. The Board case that he cites to support his allegation that his appeal is within the Board’s jurisdiction as a reduction in pay, Fox, 62 M.S.P.R. 447, is distinguishable from this appeal.

Id. at 3 (emphasis added) (citations omitted). The Board then went on, in two paragraphs, to explain how the question presented and decided in Fox was distinguishable from the one raised by Nelson.3 Id Finally, at the close of its decision, the Board reemphasized that it was not deciding the merits of Nelson’s appeal:

ORDER

This is the final order of the Merit Systems Protection Board concerning the timeliness of the appellant’s petition for review. The initial decision mil remain the final decision of the Board with regard to the dismissal of the appeal for lack of jurisdiction. 5 C.F.R. § 1201.113.

Id. at 4 (emphasis added). Moreover, because the initial decision was left final as to the merits of Nelson’s claim that the revocation of his rent differential allowance was an appealable reduction in pay, as an AJ’s decision it is of no precedential value before the Board or its AJs in a future case presenting the question raised by Nelson.⁴ Harris v. Department of the Navy, 15 M.S.P.R. 464, 467 n. 4 (1983) (“Initial decisions are of no precedential value and therefore are not binding on the Board.”); Clark v. Department of the Navy, 11 MSPB 71, 12 M.S.P.R. 428, 429 (1982) (“The agency argues that its decision to remove appellant was reasonable and supported by several Board initial decisions. These decisions, however, have no precedential value_”). Assuming, without deciding, that we may review the Board’s decision not to reopen an appeal on its own motion under 5 C.F.R. § 1201.118 for an abuse of discretion, we discern no such abuse in the Board’s conclusion that since Fox, the authority on which Nelson relied, does not control the outcome of the jurisdictional question in the instant case, it had no occasion “to correct its own errors” and thus to reopen the case “on its own motion.”

For the foregoing reasons, we affirm the Board’s decision dismissing Nelson’s petition for review as untimely and denying his request to reopen the appeal on its own motion.

Affirmed.

Costs

Each party to bear its own costs.

1 . Section 1201.118 provides that "[t]he Board may reopen an appeal and reconsider a decision of a judge on its own motion at any time, regardless of any other provision of this part.”

2 . According to the dissent, this provision of an alternative ground of decision constitutes a waiver of the dismissal for untimeliness: "Thus the Board decided the merits of the issue of the rent differential allowance. The Board did not simply issue an explanation of its ruling of untimeliness. In order to reach the merits, the full Board necessarily overcame the barrier of untimeliness." Op. at 1379 (footnote omitted). This "waiver" theory, apart from ignoring the Board's express language to the contrary, is without support in any statute or case law of which we are aware.

3 . The dissent is thus incorrect in asserting, repeatedly, that the Board "reviewed on its merits the ruling of the administrative judge as to the rent differential allowance.” Op. at 1378. The Board did nothing more than base its decision not to reopen the case on its view that the AJ had not erred in concluding that Fox, the authority on which Nelson relied, did not control the question of the Board’s jurisdiction to hear Nelson’s appeal.

4 .The Board’s decision is thus not "prece-dential,” much less "a significant ruling on a case of first impression,” dissenting op. at 1378, or "a decision of first impression and binding effect,” id. at 1379, and no number of assertions to the contrary can make it so. That the fifth of five headnotes accompanying the Board’s decision in the West Publishing Co. reporter incorrectly suggests the contrary is likewise of absolutely no moment.