Gеne M. Munson (“Munson”) seeks review of a final decision by the Merit Systems Protection Board (“Board”) dismissing as untimely his appeal of the constructive denial by the Department of Commerce (“agency”) of Munson’s request for reconsideration of the denial of a within-grade increаse scheduled for October 2, 1994.
See Munson v. Dep’t of Commerce,
BACKGROUND
The relevant facts are not in dispute. Munson has been employed since 1974 by the United States Patent and Trademark Office (“PTO”), an office within the agency, as a patent examiner. Federal employees, such as Munson, are entitled to within-gradе increases after prescribed periodic waiting periods if their work is of an “acceptable level of competence as determined by the head of the agency.” 5 U.S.C. § 5335(a) (1994). On October 2, 1994, Munson completed his then applicable three-year waiting рeriod for a within-grade increase. In a decision dated December 12, 1994, but not served on Mun-son until January 5, 1995 (“the original denial”), the agency informed Munson that his within-grade increase due October 2, 1994 was denied. The stated basis for the denial was that his performance rating was less than fully аcceptable on the record developed at that time. On January 18, 1995, Munson timely requested reconsideration of the denial by the agency. While the request for reconsideration was pending, the agency without explanation granted Munson a within-grade increasе, effective March 5, 1995. Thereafter, Munson filed grievances with the agency, arguing that the March 5, 1995 within-grade increase should be made retroactive to October 2, 1994. The grievances were subsequently denied.
On November 3, 1997, Munson petitioned the Board for review of his request for reconsideration of the denial of his October 2,1994 within-grade increase. On July 22, 1999, the Board dismissed the petition for lack of jurisdiction, determining that Munson had filed grievances through procedures in a collective bargaining agreement and that the agency’s practice of fоllowing these procedures made the procedures “binding and enforceable as to both parties,” foreclosing further re
On remand, the Administrative Judge (“AJ”) determined that the appeal to the Board filed November 3, 1997, was not timely based on a requirement that an appeal be filed within thirty calendar days of the effective date of an action or receipt of notice of the action, citing 5 C.F.R. § 1201.22(b). See Munson v. Dep’t of Commerce, No. DC-531D-98-0094-M-1 (M.S.P.B. Dec. 22, 2000) (“Initial Decision”). The AJ noted that Munson filed his appeal approximately two years and eleven months after the within-grade increase was effectively denied. The AJ also concluded that Munson should have been and was aware of his appeal rights long before his appeal was filed and, thus, was not diligent. The AJ further found that Munson had not еstablished good cause for the untimely filing.
On petition for review, the Board affirmed the Initial Decision by a split panel. The Board characterized the AJ’s Initial Decision as holding that the triggering event for timeliness was the date on which Munson received notification of the Marсh 5, 1995 within-grade increase. See Final Decision at 588. The Board upheld the AJ’s determination that, even without notification of his appeal rights from the agency, Munson should have known of his appeal rights long before he filed, the appeal and that there was no good cause for delay. See id. аt 589. In particular, the Board pointed to testimony of Munson as indicating that he knew of these rights:
So in this particular case had my waiting period [for my next within-grade increase] been one year, then I would have filed an appeal in 1995. If my waiting period had been two years, then I would have filed in — within 30 days after October 1996.
As it was, my waiting period was three years, so the only date that I thought it would be prudent, I had better file an appeal or I’d lose my rights came about in November of — well, the date — the triggering date would be October 12, 1997, and I did file within 30 days of that.
Id.
Munson apрeals the dismissal of his petition and argues: (a) that the decision in Munson I forecloses the Board from consideration of the timeliness issue; (b) that the appeal was in fact timely filed; and (c) that the Final Decision denied him due process. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. STANDARD OF REVIEW
The scope of review in an appeal from a decision by the Board is strictly limited by statute. Specifically, we must affirm the Board’s decision, unless we find it to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without prоcedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000);
Stearn v. Dep’t of the Navy,
B. ANALYSIS
I
Munson first raises the argument that the Board was foreclosed from consid
II
To receive a within-grade increase, an employee’s work must be at “an acceptable level of competence,” as determined by the head of the agency in question. 5 U.S.C. § 5335(a);
Goines v. Merit Sys. Prot. Bd.,
In this case, no action was taken on Munson’s request for reconsideration. Moreover, no written decision on reconsideration was ever issued. Instead, the agency simply granted Munson a within-grade increase five months after the end of the required three-year waiting period. The agency furnished no explanation for the delay. The SF-50 form notifying Munson of the effective date of the within-grade increase was not a decision on reconsideration, was not accompanied by any explanation for the delay in granting the within-grade increase, and did not provide Munson with notice of his right to appeal, as specified in 5 C.F.R. § 531.410(d).
Even though the agency never issued a written decision on Munson’s request for reconsideration, the Board determined that the belated grant of the within-grade increase should have indicated to Munson that his request for reconsideration was denied. The Board then held that the grant of the within-grade increase was the trigger for the start of the thirty-day appeal period. The Board concluded that an appeal should have been filed on or about April 9, 1995, or thirty days from the date of the granted within-grade increase plus five days for mailing. The Board points to the fact that Munson pursued grievance proceedings seeking tо make the within-grade increase retroactive to October 1994 as proof that Munson was aware of his right to appeal despite the absence of a written notice or explanation. We disagree.
The decision on Munson’s grievance evinces nothing аbout the agency’s position on Munson’s request for reconsideration. The grievance sought to make the after-the-fact March 1995 within-grade increase retroactive on the ground that the PTO had an alleged practice of making within-grade increases retroactive when later granted on improved performance. The request for reconsideration sought to overturn the original denial. The request for
The grievance denied Munson’s request for retroactive grant of the within-grade increase on the ground that the PTO “does not have an established practice of granting retroactive [within-grade increases] for employees who fail to have an acceptable level of performance, unless the initial determination of less than ‘Fully Successful’ is reversed.” Letter from the Deputy Assistant Commissioner for Patents to Lawrence J. Oresky, Patent Office Professional Association Representative (Dec. 2, 1996) (emрhasis in original). Thus, the denial of the grievance was predicated on the negative initial determination. The decision on the grievance explained why the within-grade increase was not being made retroactive, but did not explain why the initial determination on the within-grade increase due in October 1994 was negative. Indeed, the decision on Munson’s grievance was predicated on and assumed the existence of the initial negative determination that Munson now seeks to reverse. The Board’s decision improperly confuses and conflates the retroactivity issue decided in Munson’s grievance with the substantive basis for the initial negative determination of his within-grade increase. Neither the belated grant of the within-grade increase, nor Munson’s pursuit of grievance proceedings on the retroactivity question, supрorts the Board’s determination that the appellant “was aware, or should have been aware, that as of March 5, 1995, his request for reconsideration of the denial of his within-grade increase ... would not be granted.” Final Decision at 588.
The Board admits that “there is no indication exactly when the appellant learned that he had a right to аppeal the denial of his within-grade increase to the Board,” but nonetheless holds that Munson did know of his right to appeal at some point and was thenceforth not diligent. Id. (emphasis in original). Munson, on the other hand, explains that, without the reconsideration decision from thе agency, the first date at which he was aware that the agency had denied his request was on the date that his next within-grade increase was due, namely October 12, 1997. Because the agency did not make a determination about Munson’s level of competence on that date, it became clear to him only then that the agency would not be granting his within-grade increase retroactive to October 1994. Munson reasonably believed that his appeal rights attached at that time and filed his appeal in a timely fashion thereafter.
Munson’s tеstimony does not support the Board’s holding that Munson was sitting on his rights. It merely shows that Munson appealed as soon as he believed that a negative determination had been made and had become final. The fact is that it was the agency that was dilatory in failing to act on his request for reconsideration and, in turn, failing to furnish Mun-son with the required notice of the reasons for denial and an explanation of his right to appeal to the Board. 5 C.F.R. § 531.410(d).
As the applicable regulation makes clear, “[w]hen a negative determination is sustained after reconsideration, an employee
shall
be informed in writing of the reasons for the decision and of his or her right to appeal the decision to the [Board].”
Id.
(emphasis added). It is the receipt of such written notice by the employee that triggers the running of the thirty-day appeаl period of 5 C.F.R.
Because Munson did not sit on his rights and never receivеd the required written decision on his request for reconsideration, the thirty-day deadline for filing his appeal was never triggered. The Board’s conclusions that Munson’s appeal was untimely and that Munson failed to act diligently were not in accordance with law.
Ill
Because wе find that Munson’s appeal was timely filed, we need not and do not reach his due process argument.
CONCLUSION
The Final Decision of the Board dismissing Munson’s appeal as untimely is reversed. The case is remanded to the Board for adjudication of the merits of the appeal.
REVERSED AND REMANDED.