Rafael Zamot v. Merit Systems Protection Board

332 F.3d 1374, 2003 U.S. App. LEXIS 12641, 2003 WL 21434771

• Court: Court of Appeals for the Federal Circuit
• Decided: June 23, 2003
• Docket: 02-3321
• Status: Published

Opinions

Opinion for the court filed by Circuit Judge BRYSON. Dissenting opinion filed by Circuit Judge PAULINE NEWMAN.

BRYSON, Circuit Judge.

Rafael Zamot appeals from a decision of the Merit Systems Protection Board, 91 M.S.P.R. 475, dismissing the appeal of his removal action for lack of jurisdiction. Because the Board did not abuse its discretion either in finding that Mr. Zamot failed to show good cause for the delay in filing his petition for review or in declining to reopen the case on its own motion, we affirm.

I

Mr. Zamot was employed by the United States Postal Service as a Postal Police Officer. On March 26, 2000, Mr. Zamot was involved in an altercation with another postal worker in a locker room at work. The Postal Service removed Mr. Zamot for “assaulting a fellow officer” in violation of the Postal Service policy prohibiting violence in the workplace.

Mr. Zamot appealed his removal to the Merit Systems Protection Board. The administrative judge assigned to the case issued an order to show cause, directing Mr. Zamot to address the question whether he qualified as an employee under 5 U.S.C. § 7511, and thus whether his case was within the Board’s appellate jurisdiction. While Postal Service employees ordinarily do not fall within the Board’s jurisdiction, preference-eligible veterans in the excepted service with one year of continuous service qualify as employees under the statutory definition of that term. See 39 U.S.C. § 1005(a)(4)(A); 5 U.S.C. § 7511(a)(1)(B). The administrative judge informed Mr. Zamot that 5 U.S.C. § 2108 defines a preference-eligible veteran as one who “served on active duty in the armed forces during a war, [or] in a campaign or expedition for which a campaign badge has been authorized.” In addition, the administrative judge identified an Office of Personnel Management resource that lists qualifying campaigns and expeditions. Mr. Zamot requested additional time to gather the requisite evidence that he is a preference-eligible veteran. In accordance with Mr. Zamot’s request, the administrative judge dismissed his appeal without prejudice on November 9, 2000, and gave Mr. Zamot three months to assemble supporting documentation and refile the appeal.

In January 2001, Mr. Zamot timely refiled his appeal with the Board. He submitted a letter from the Chief of Naval Operations stating that Mr. Zamot had received a Meritorious Unit Commendation for the period April 1, 1988, to September 30, 1989. In a submission to the administrative judge, Mr. Zamot’s representative stated that he obtained the letter from the Navy “with great difficulty” and that the Navy had informed him that “Naval JAG was consulted and that this letter should suffice for his purpose of Preference Eligibility/Jurisdiction before the US-MSPB.” Mr. Zamot also submitted a military form listing decorations he had received, including a Sea Service Deployment Ribbon, a Navy Battle “E” Ribbon, and a First Good Conduct Medal.

The administrative judge ordered the parties to present arguments and evidence within 20 days addressing the jurisdictional issue of whether Mr. Zamot was preference-eligible. Mr. Zamot responded that while he was having difficulty obtaining additional documentation because much of it was classified information, he was “still in the process of strenuously attempting to secure additional documentation” and he “fully expects to be able to obtain further documentation very shortly, which will be immediately forwarded to your office.” He also stated that he served on a “Warship [that] was on duty station in the Middle East in direct support of both Overt as well as Covert Combat Operations.” The government objected to Mr. Zamot’s request for more time and filed a motion to dismiss for lack of jurisdiction, arguing that Mr. Zamot had failed to show that he is a preference-eligible veteran and that there is no indication that the various ribbons and medal were awarded for a particular campaign or expedition.

On February 28, 2001, the administrative judge dismissed the appeal for lack of jurisdiction because Mr. Zamot had failed to establish that he had served in a campaign or expedition for which a campaign badge had been authorized, as is required by 5 U.S.C. § 2108(1)(A). The administrative judge stated that the decision would become final unless Mr. Zamot filed a petition for review with the full Board by April 4, 2001.

Rather than file an appeal with the full Board, Mr. Zamot elected to pursue a complaint with the Equal Employment Opportunity Commission (“EEOC”) in which he argued that he was a whistleblower who had been subject to discrimination. An administrative judge with the EEOC found that Mr. Zamot did not establish that he was discriminated against on the basis of race or retaliation for prior equal employment opportunity activity. The administrative judge then stated, “At best, the Complainant was a whistleblower, and retaliation for being a whistleblower is not within the jurisdiction of this forum.” Meanwhile, Mr. Zamot, a member of the United States Army Ready Reserve, was called to active duty in October 2001.

On March 10, 2002, Mr. Zamot filed another submission with the Board. In that submission, he sought review as a whistleblower and asked the Board to reopen his case. He noted that the other employee who had been involved in the altercation that led to his removal was back at work after having successfully appealed to the Board, which had converted the employee’s removal to a 60-day suspension. The Board treated Mr. Zamot’s filing as a petition for review or to reopen the February 28, 2001, decision. The Clerk of the Board notified Mr. Zamot that his petition for review appeared to be untimely and directed Mr. Zamot to file, within 15 days of the Clerk’s notice, a motion for waiver of the time limit, and to submit an affidavit or a signed statement showing good cause for the delay in filing. In an untimely submission through his representative, Mr. Zamot stated that he had been called to active military duty, that his receipt of the Clerk’s notice had been delayed, and that he had experienced trouble in communicating with his representative. Mr. Zamot requested a waiver of the time limit for filing his petition for review, stating that (1) he was “under the genuine impression or understanding that he no longer had any legal standing with the U.S. MSPB”; (2) he was “adjudged” to be a whistleblower by the EEOC and he was therefore within the Board’s jurisdiction; and (3) neither he nor his representative had legal training.

The Board dismissed Mr. Zamot’s petition for review as untimely filed and denied his request to reopen the appeal. The Board noted that, pursuant to 5 C.F.R § 1201.114, a petition for review must be filed within 35 days of the initial decision unless the petitioner shows good cause for the delay in filing. The Board held that Mr. Zamot’s filing was untimely by nearly one year and that he had failed to show that he had exercised due diligence or ordinary prudence under the circumstances sufficient to establish good cause. The Board found that Mr. Zamot’s untimeliness was not excused either by his pursuit of claims before the EEOC or by his pro se status. With respect to the request to reopen, the Board stated that the request was not filed within a reasonable period of time and that, even if timely, the request lacked merit because Mr. Zamot had neither identified clear and material errors nor presented new and material evidence. Mr. Zamot now petitions this court for review.

II

A

To establish good cause for a filing delay, an appellant must show that the delay was excusable under the circumstances and that the appellant exercised due diligence in attempting to meet the filing deadline. Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed.Cir.1982). The factors bearing on whether there is good cause for an untimely filing include the length of the delay, whether the appellant was notified of the time limit, the existence of circumstances beyond the appellant’s control that affected his ability to comply with the deadline, the appellant’s negligence, if any, and any unavoidable casualty or misfortune that may have prevented timely filing. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir.1994).

We have repeatedly stated that the waiver of a regulatory time limit based on a showing of good cause “is a matter committed to the Board’s discretion and that 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). We conclude that Mr. Zamot has not carried the heavy burden of establishing that the Board abused its discretion in finding that he failed to show good cause for the delay in filing his petition for review.

Mr. Zamot had 35 days from issuance of the initial decision to seek review, but he took a full year. Moreover, Mr. Zamot was notified of the time limit; the Board’s decision explicitly informed him of the April 4, 2001, deadline for filing a petition for review. Although Mr. Zamot states that he and his representative had experienced difficulties in obtaining materials relating to Mr. Zamot’s preference-eligible status, he merely had to file a piece of paper to serve as his petition for review in order to preserve his rights. The difficulty in obtaining evidence from the Navy may have been a circumstance out of Mr. Zamot’s control, but the failure to file a document to serve as a petition for review was not. Finally, although Mr. Zamot argued to the Board that his military service was a factor justifying the substantial period of delay, he was not on active duty for the first six months of that time period.

Mr. Zamot’s brief in this court makes clear that his failure to file a timely petition for review was not the result of his military service, his pro se status,'confusion about the appeal process, or the complexity of the preference-eligible issue. Instead, he acknowledges that he failed to file a petition for review because he regarded it as unlikely to succeed. Before the Board, he stated that he had not filed a timely petition for review because he was “under the impression or understanding that he no longer had legal standing” with the Board following the dismissal of his petition for lack of jurisdiction. In his informal brief in this court, Mr. Zamot states that he “had absolutely no reasonable expectation that the U.S.-MSPB would rule against itself at the Appeal Level, (Le.Washington, D.C.) as the MSPB had already been quite clear. Therefore, I Appellant Zamot did not pursue the matter further with the MSPB at that time.” As the Board correctly explained, an election not to pursue further remedies because of a belief that further review would be fruitless does not constitute a showing of good cause for a filing delay. See Rodgers v. .United States Postal Serv., 57 M.S.P.R. 172, 174 (1993). Accordingly, we do not believe that the Board abused its discretion in finding no good cause for the untimely filing of the petition for review.

B

Pursuant to statutory authorization, 5 U.S.C. § 7701(e)(1)(B), the Board has provided by regulation that it may “reopen an appeal and reconsider a decision of a judge on its own motion at any time,” 5 C.F.R. § 1201.118. The Board enjoys broad discretion in deciding whether to reopen particular appeals, and .this court has stated that, even assuming we have the authority to review such a decision (an issue the court has left open), a party has a “heavy burden” in attempting to demonstrate that the full Board erred in exercising its discretion not to reopen. See Nelson v. Fed. Deposit Ins. Corp., 83 F.3d 1375, 1377 (Fed.Cir.1996) (“Assuming, without deciding, that we may review the Board’s decision not to reopen an appeal on its'own motion ... for an abuse of discretion, we discern no such abuse.... ”); Azarkhish v. Office of Pets. Mgmt., 915 F.2d 675, 679 (Fed.Cir.1990) (“[I]t is not beyond question whether petitioner even has standing to contest the Board’s declining to sua sponte reopen the appeal. Assuming, without deciding, that she has standing, ... [petitioner has a heavy burden to demonstrate that the full Board abused its discretion .... ”). Assuming that we may review the decision not to reopen, we do not believe that the Board abused its discretion by declining to reopen Mr. Zamot’s appeal.

During the period following the administrative judge’s dismissal of the appeal without prejudice, Mr. Zamot was able to obtain some materials relating to his military service, but those materials did not satisfy the administrative judge that Mr. Zamot was entitled to preference-eligible status. In February 2001, Mr. Zamot informed the administrative judge through his representative that he “fully expects to be able to obtain further documentation very shortly; which will be immediately forwarded to your office.” Notwithstanding that representation, however, he never submitted any additional documentation to the administrative judge, nor did he proffer any additional documentation to the full Board with his untimely petition for review. Even in this appeal he does not suggest that additional time would enable him to assemble the materials necessary to make the requisite showing. Although it has been more than two years since the administrative judge dismissed his appeal, Mr. Zamot has not offered any suggestion that he is any closer to being able to show that he is a preference-eligible employee than he was on the day his appeal was dismissed.

Mr. Zamot could have sought to obtain additional evidence regarding his claim, or at least suggested why there was reason to believe additional time would enable him to obtain such evidence, but he has not. Instead, his submissions to the Board in March and April 2002 were directed mainly at asserting that he is a whistleblower, a claim over which the Board lacks independent jurisdiction because of his status as a Postal Service employee.

The Board noted that a request for reopening is granted only under unusual circumstances, such as when the initial decision contained clear legal errors or when a party has proffered new and material evidence that would warrant a different outcome. The Board correctly observed that Mr. Zamot had made no showing of any such legal error in the initial opinion or any new and material evidence that could affect the outcome of the case. Given the absence of any such showing in the materials before the Board, it was not an abuse of discretion for the Board not to have reopened the appeal.

While Mr. Zamot argues that it is unfair that he has been removed while the other employee involved in the altercation merely endured a 60-day suspension, that conclusion goes to the merits of Mr. Zamot’s removal case and not to whether the Board had jurisdiction over his removal case or whether he had good cause for his untimely filing. Because we conclude that the Board did not commit legal error or abuse its discretion in holding that it lacked jurisdiction over Mr. Zamot’s appeal and declining to reopen his case, we uphold the Board’s decision.

AFFIRMED.