*1 II. III. argues Bante argument, Bante’s final scope agency of review of deci give response did not his proper approximate ought sions that of non- consideration, is without merit. To the con employees probationary some —i.e. trary, F.A.A. his full found. To the extent that “nexus” must be consideration, displayed commendable this is raised for the first time on open-mindedness in subsequently dropping need not be before specifications one of the for removal. Department Lizut v. considered. legal The standard which the Federal 1391, Army, 717 F.2d (Fed.Cir.1983). Circuit reviews decisions of the MSPB is event, previously rejected we have that a decision must be affirmed unless it Mastriano, argument. F.2d at is found to be: language 1155. The of the current statute 1) arbitrary, capricious, an abuse of Congress clearly establishes that intends discretion, or otherwise not in accordance probationary of the termination of review law; employees be more limited than that of 2) obtained without employees. purposes other For quired law, regulation rule or having removals, MSPB review of 5 U.S.C. § followed; (1988) “employee” defines an as “an indi- 3) unsupported by substantial evi- service who is not competitive vidual in the dence.
serving probationary period or trial 5 See U.S.C. light 7703. In of this stan- (em- under an initial appointment_” review, dard of the decision of the MSPB added). phasis The statute makes no clearly should and is be affirmed. analogous provision probationary em meaning ployees. Congression AFFIRMED. Connolly v. Unit
al silence is discussed in
No costs.
1250,
ed
F.Supp.
(1982),
part
part,
and rev’d in
aff'd
denied,
(Fed.Cir.1983),
cert.
465 U.S.
1065,
1414,
(1984);
104 S.Ct.
“[Probationary employees pointedly rights
excluded.... The limitation on the employees probationary was not an over
sight; it was a conscious Con gress managers great to afford federal lati MENDOZA, Petitioner, Juanita C. removing probationary employees tude in they rights before became vested with the (Citing employees.” afforded tenured MERIT SYSTEMS PROTECTION BOARD, Respondent. H.R.Rep. Cong., No. 95th 2d Sess. S.Rep. Cong., No. 95th 2d No. 91-3202. (1978)), Cong. Sess. 45 U.S.Code & Ad Appeals, States Court of 1978, p. 2723. min.News Federal Circuit. regulations promulgated by the Of- Management fice of Personnel at 5 C.F.R. June only applicable 315.805-806 thus are the §§ provisions in Bante’s case. the ex- Given
plicit and well established instructions from
Congress, inquire this court into beyond scope
Bante’s case of 5 C.F.R. Accordingly, 315.806. we hold that allegations
MSPB’s review of Bante’s
procedural scope. defects was correct *2 Mendoza, pro se.
Juanita C. Martin, Systems K. Michael Pro- D.C., Washington, tection for re- him spondent. With on the brief were Mary Jennings, Acting L. Gen. Counsel and Rearden, Acting Sara B. Asst. Gen. Coun- Baskette, Margaret L. sel. Jeanne E. Cohen, Dept, Davidson and David M. Justice, represented respondent. Mur- Meeker, ray M. Officer of Personnel Management, of counsel. NIES, RICH, Judge,
Before
Chief
NEWMAN,
MAYER,
ARCHER,
MICHEL,
PLAGER, LOURIE, CLEVENGER, and
RADER,
Judges.
Circuit
NIES,
Judge.
Chief
appeals from the
C. Mendoza
Oc-
Juanita
9,1990,
decision of the Merit
tober
Board),
(MSPB
No.
Protection
SE08319010505, dismissing for untimeli-
appeal of an
of Personnel
ness her
Office
(OPM)
deci-
Management
reconsideration
panel
of the court reversed
sion.
for consid-
and remanded
Board’s decision
Mendoza v. Merit
eration of the merits.
(Fed.
Bd.,
timeliness she “very sickly.” was She also stated DISCUSSION provide that she could not a doctor’s certifi explaining cate her condition because I. go could not afford to to a doctor. regulations provide an MSPB Judge
The Administrative issued an “Ac- from an OPM decision which does not set Order,” knowledgment apparently a form an document, effective date must be filed within 25 gave general which information days of the decision’s issuance. 5 C.F.R. processing and alternative directives on 1201.22(b) (1991). If the is not appeal depending upon the circumstances. § period, filed time within this will be dis- untimely, party If an was petitioner missed as unless the argument ordered to file evidence and good delay.” shows “a reason for the 5 “good cause existed for the 1201.22(c). See also delay.” The OPM submitted its file on the C.F.R. C.F.R. (1991) (Board required may proce- matter as and at the same time 1201.12 waive regulation upon showing, moved for dismissal because of untimeli- dural cause). appeal, by ness and because “no evidence sub- Because Ms. Mendoza’s [was] admission, mitted to cause to filed outside the establish waive the own copy paper period, A time limit.” limitation we need consider the improperly oh Mendoza. The Administra- issue of the Board de- served Ms. whether initial re- Judge tive then issued a Show Cause Or- nied her a waiver based der, requesting evidence quest. se, appear postmark pleadings pro Mendoza’s
1. The date is deemed the date. 2. While Service, phrased by someone familiar with have been Cantrell v. United States Postal legal procedures. Foreign counsel who do not 248, 250 n. 1 become members of the bar of this sign pleadings party. file for a not showing good days, evidence of cause that whether facts often stated We have arbitrary capricious. It clearly limit for an regulatory time showing of upon obligation was Ms. Mendoza’s to make an based should be waived to the peti- matter committed appropriate cause is a Order. this court will ignores discretion tioner who an order of the Adminis- for that judgment peril. own Judge substitute its does so at his or Protec Systems Board, v. Merit Litigants Turner whether rich or Board. before the (Fed.Cir.1986); Bd., F.2d poor, resident abroad or whether Bd., 802 Protection Merit obligated Rowe v. are (Fed.Cir.1986); v. Sheeran deadlines, F.2d including procedures, Bd., F.2d Systems Protection judges. The and the orders of the Board’s (Fed.Cir.1984); Young Depart open to all claim- doors of the tribunal *4 Bureau, Commerce, 737 ment Census only on the same terms. This is ants but (Fed.Cir.1984); Phillips v. F.2d process equal essence of due treat- the Serv., 695 F.2d Postal States ment under the law. (Fed.Cir.1982). appeal, we will On opportuni- Mendoza was afforded an Ms. of such a waiver grant the or denial disturb ty rejecting for review OPM’s arbitrary, capricious, an abuse only if it is annuity, she was application for an but discretion, not in accord or otherwise complied only if she entitled to that review 7703(c) law. 5 U.S.C. ance with the regulations and orders. the MSPB’s Sys also Bacashihua case, specific Order spite In in of a Bd., tems Protection requesting Judge from the Administrative 1390. (Fed.Cir.1987); Phillips, 695 F.2d at existed cause evidence where, under excusable Delay is once delay, Ms. Mendoza never circumstances, petitioner exercises a the waiver, timeliness, or referred to thereafter Phillips, ordinary prudence. diligence or completely simply and good cause. She is on the The burden F.2d at 1391. Judge’s di- the Administrative ignored delay. excusable petitioner to demonstrate rectives. Board, Thus, the burden before Id. challenged Ms. Men- agency not Had the prove facts which Mendoza to was on Ms. age and vague of old doza’s assertions diligence she exercised show that would might illness, Judge the Administrative filing appeal prudence in ordinary the issue of timeliness have decided late. five weeks However, allegations alone. of her basis appeal to the initiating her in issue matter clearly put the the OPM request for MSPB, included a Ms. Mendoza was, therefore, the Administrative 25-day time limitation of the a waiver the matter pursue Judge’s obligation to decision, stat subject OPM appealing the contain- Order a Show Cause further with sickly.” “very old and was ing that she sup- in evidence ing to submit the directive because moved to dismiss The OPM the Show After allegations. port of evidence submitted no to bring failed to Cause Order only The evi delay. cause for stated Judge issue, Administrative the waiver Judge at the Administrative dence before the action. dismissed file. In that agency’s point was the liti- expect pro se does not The court either Ms. file, respecting evidence through a confus- jump gant made to be she was age is that health or Mendoza’s However, hoops. array procedural ing been about and would have born incompre- nothing mysterious there was Administrative old. The years That Order. Cause in the Show hensible re Order, August dated Judge’s It was unambiguous.3 clear and submit, 30 Order within Mendoza to quiring Ms. correct, technically we government is While the argues did government that Ms. Mendoza first reply to the rely on her failure decline establish timeli- respond orders to to two con- therein contained The directive ness, Acknowledgment Order. being Order. first solely directed to the issue of “whether Ms. appeal Mendoza’s filed” and Let transpired. us review what has appellant states: “The is ORDERED to merits of Mrs. Mendoza’s were not evidence Board,
file reached on the basis that the timely filed or that cause existed for filed. The merits of added). delay” (emphasis Ms. Mendoza request for waiver of the responded never manner to that were not upon decided We, therefore, plain Order. hold that the procedures that even this en banc court Judge did not abuse her “confusing”. now finds In the now-vacat- by dismissing appeal by discretion rea- ed decision of a unanimous son of Ms. Mendoza’s failure to show the Board’s actions were found wanting. The acknowledge cause for not in a Board did not request waiver, Mrs. Mendoza’s did not manner. mention the explain reasons she untimely filing, and did not assess the II. adequacy of her evidence. The procedure inadequate, deemed this for it Because we hold that the appeal was ignored that Mrs. Mendoza had dismissed, properly second issue complied with the Board instructions that *5 presented government’s suggestion the her, concerning OPM sent fil- rehearing for in banc is moot. ing. required instructions, As in those she stated that her filing untimely, re- quested waiver, reasons; CONCLUSION requested: The dismissal of Ms. Mendoza’s action is timelyness Waiver for the the [on] ground very that I am sickly, AFFIRMED. go aid,
I can’t to the doctor for the [exjpenses, because no monies for the so NEWMAN, PAULINE Judge, Circuit give you that I can the certificate of a dissenting. satisf[y] your good doctor to office. respectfully I dissent. This court’s en panel expressed its concern that the ruling ratifies a banc failure of administra- judge administrative twice issued Orders process tive that not even the Board seeks respond that failed to to or even acknowl- obligation to sustain. It is not this court’s edge request. Although the court now system to endorse a that has malfunc- holds that Mrs. Mendoza should inter- have tioned, by refusing system to correct the preted prof- these Orders to mean that her when errors arise. Fair require inadequate, fered excuse was that is not vigilance, responsive judicial review. what the said.1 Orders states, fusing. noting explanation any tardy filing, It after Ms. Mendoza’s of whereas Mrs. appeal appeared untimely, to be alia: already inter "I explanation Mendoza had filed an of you argument ORDER to file evidence and tardy filing. showing your appeal timely that petition rehearing The Board wrote in. its for ...” The reference to “refiled” makes no filed. "gave that the order to show cause Ms. Mendoza However, any inadequacies sense. of the Ac- specific notice that more and better evidence knowledgment Order were overcome the required would be for time a waiver of the clear direction of the Show Cause Order. However, "specific limit.” there is no notice” order, about “more and better evidence” in the particularly confusing. 1. The first Order was It evidence, simply ig- which ordered her to file your appeal timely you stated: "If is filed ... noring the evidence filed. right hearing your have a case", to a on the merits of This court states moved to dismiss that "OPM ignoring that Mrs. Mendoza had stated in support because she submitted no evidence in that the was not filed. However, delay." the stated cause of the The Order mentioned "evidence and your OPM motion made no reference to "stated that refiled and, concedes, delay.” (Empha- cause existed for the cause" as the Board the adminis- added.) requested judge sis The Order that she file an trative never addressed her stated cause. “assertion, being sickly Board states that her for is petition In its insufficient to a five-week “the administrative agrees appellant’s reasons for unless she details other circumstances such failed to address sickness, duration, the nature limit.” This failure as of the time waiver prevented and how it her from nor defended an neither contested points petition in its for on time.” None of this useful infor- sole whose incorrectly pro- earlier in the mation was mentioned rehearing were that Force, ceedings; Air not communicated to Mrs. Dep’t applied Alonzo v. Mendoza, (1980),and included even MSPB addressed to the Federal not itself have brief on Circuit. should requested waiver but of. the the merits Although Mrs. Mendoza has had no issue consid for have remanded should respond objection, chance to to this this en instance an adminis in the first eration appears rely banc court it. Such court, how This en banc judge. criticism of should have pro the Board’s flawed rehabilitates way response, raised in a that allowed in proceeds decide then cedure—and appearing for the first time in stead of itself. merits rehearing. for “The deciding case its merits accept appellate on. courts counsel’s as the issue “whether court redefines ac post hoc rationalizations her a waiver improperly Lines, denied Board v Burlington tion.” Truck Inc. However,- request”. 156, 168, on her initial based 371 U.S. 83 S.Ct. . insists, it did agrees, indeed “[Ajgency Board 9 L.Ed.2d request. on her initial its denial not entitled to def ‘litigating positions’ base are peti- Thus, in its they merely appellate while the Board stresses erence when failed to rehearing that “the rationalizations’ for ‘post counsel’s hoc *6 being ‘very question action, of whether agency rule on the advanced for the first time ex- sickly’ reviewing constituted reasonable in-the court.” Martin v. Occu delay”, this court now a five-week Health pational Safety cuse for Review - ques- -, lapse, Comm’n, that and rules on U.S. S.Ct. excuses arguments filed 1179, on the Board’s tion based L.Ed.2d rehearing. petition in for. Incidentally, I Board’s observe Mrs. Deciding the merits of Mendoza’s lacking in Mrs. of what was statement request, this court criticizes initial hot mention does Mendoza’s submission However, not “vagueness”. for This court’s en- documentary evidence. did the rehearing for petition until judge’s the administrative dorsement were sug- assert reasons Board demanding “evidence” “orders” two OPM, adminis- Neither nor the “vague”. explanation belief gests the court’s had stated judge, nor insufficient, and that documents alone is prior pro- during any of the objection this tells us Board now required. Yet the in Indeed, was raised ceedings. This assertion “details” suffice. that' rehearing part of petition for as requires Board’s simply “a regulation applicable (an 1201.22(c) the Panel had incorrect- argument that 5 C.F.R. reason”. Alonzo, in ly unless applied “a be dismissed will shown”). actions. I earlier good reason for (or judges) Mendoza how Mrs. wonder B might satisfy “evidence” know what would circumstances, for these under rehearing Board the Board petition for In its for not until the of what this en banc court now advises had in mind.2 Board what Board are we told Mrs. Mendoza. The required of liberally con- should be "Good cause” to its administrative instructions from appeals within 6 months filed ap- for Philippine strued retirement judges decision. reconsideration date of OPM peals include: procedures, justifying argument, the Board’s information and to which she opportunity respond. Mrs. Mendoza not re- had no court criticizes peating the information that she had al- fully agree I improper it is for a ready spite The court states: “in filed. agency’s court to intrude into an routine specific from the Order Phillips operations. v. United States See Judge requesting evidence Service, (Fed. Postal delay, Mrs. Men- cause existed Cir.1982) (Board authorized to control doza never once referred to thereafter operations through prescribed Regula- timeliness, waiver, cause.” This tions). However,., the issuance an ad- fatally faults Mrs. Mendoza for not judge non-responsive ministrative of two referring “thereafter” to “timeliness” and “orders”, addressing petition- form delay, “waiver” or the for her al- reasons merits, request er’s on its followed for- though precise these and her words rea- legal rights, feiture of substantive is not a filed, sons had accordance operation. routine Judicial correction of with the Board’s instructions for legal micromanagement op- error is not appeals. responsibility. erations. It is our explain why 7703(e) (Federal
This court does not the ad- U.S.C. Circuit shall “set judge’s responsiveness ministrative lack of aside action ... found to be ... request to Mrs. Mendoza’s required by waiver must obtained without excused, law, placing regulation be twice while having the burden rule or been fol- prescience lowed”). on Mrs. Mendoza. Mrs. Men- apparently supposed grasp doza was
that the administrative had failed to submission,
read her initial and therefore obliged repeat
that she was it. How- argue even the Board does not now procedure
favor of the followed
case. In re Carl D. CLAY.
C of form No. 91-1402. inappli- issuance “orders” in cable circumstances can confuse the *7 Appeals, United States Court public that OPM and the Board are de- Federal Circuit. signed recognizes to serve. The Board pro se petitioners “entitled to June leniency court-type some with Dep’t
formalities.” Black v. ofHous. Dev., Urban n. 2 Rowe, Hughes also 5, 9,101 U.S. (1980) (recog-
S.Ct.
nizing petitioners). needs of regulations state that “The provide party
will an opportunity why
to show should not be dis- untimely.”
missed as 5 C.F.R. 1201.-
22(c). opportunity provided here
flawed, for Mrs. Mendoza’s excuse was not
considered and she now is
receiving from this court an adverse deci- newly presented
sion based on the (citing Chap. From P. Broida A Guide to Merit Judge’s the Board's Protec- Hand- (9th 1992) ). Practice, ed. Board Law & book