Robert C. Williamson v. Merit Systems Protection BoardRobert C. Williamson v. Merit Systems Protection Board
Robert C. Williamson (“Williamson”) petitions for review of the decision of the Merit Systems Protection Board (“Board”), No. AT0831000852-I-2,
I. BACKGROUND
Williamson applied to the Department of Justice (“Justice”) for law enforcement officer service credit for work he performed at the Drug Enforcement Administration (“DEA”) from January 1, 1977 to May 10, 1998. Justice denied his application for service credit on August 21, 2000, and Williamson appealed this decision to the Board on August 26, 2000. On September 15, 2000, Williamson and sixty-six similarly situated appellants moved to dismiss their appeals without prejudice to refiling within thirty days of issuance of a final decision in
Hannon v. Department of Justice,
appeal no. 99-3354, then pending before our court. The Board granted the motion on October 6, 2000. We issued our opinion in
Hannon
on December 7, 2000,
Hannon v. Dep’t of Justice,
Within thirty days, Williamson sought to reinstate his appeal. According to the office manager for Williamson’s counsel, Williamson’s appeal was refiled with the Atlanta Regional Office of the Board by fax and by mail on January 9, 2002, the same day that these documents were unquestionably served on Justice. Williamson’s counsel also sent a letter on that same date to the Chief Administrative Judge of the Atlanta Regional Office, stating:
This firm represents more than two hundred DEA Diversion Investigators (“DIs”) who are seeking Law Enforcement Officer credit for their time serving as DIs. Many of these DIs have or had cases pending before the MSPB. We sought to voluntarily dismiss these cases pending resolution of Hannon v. Department of Justice, CA 99-3354 .... Hannon was finally resolved on December 10, 2001 .... We have accordingly moved to reopen all of the DI appeals previously pending before the MSPB.
Because of the large volume of DI cases represented by this office, it is possible that a motion to reopen an appeal that was dismissed pending resolution of Hannon may not, by inadvertence, have been filed today. In order to guarantee that the rights of the DIs we represent are not prejudiced, we hereby request that any and all DI cases in your office dismissed pending resolution of Hannon in which we are named as representative be reinstated, regardless of whether a specific motion to reinstate has been filed for that case.
This letter proved fortuitous for Williamson, as the Atlanta Regional Office has no record that it received Williamson’s refiled appeal.
Sometime in early March of 2002, an Administrative Judge sent Williamson’s counsel a letter stating:
As you know, the Board has received a number of motions from the Department of Justice and [Williamson’s counsel] in recent weeks relating to the case processing of the law enforcement officer credit appeals of the DEA’s Diversion Investigators. Some of those pleadings and/or fax cover sheets have listed a Robert C. Williamson as an appellant. I am writing to inform you that Mr. Williamson’s appeal was dismissed without prejudice on October 6, 2000, inMSPB Docket No. AT-0831-00-0852-I-1, and this office has no record that the appellant ever refiled that appeal.
Obviously, if the appellant desires to refile, he should do so immediately. If appropriate, the Acknowledgement Order will address the issue of timeliness. If the appellant contends that he already has refiled his appeal, he should submit appropriate evidence to me that he has done so and I will have a docket number assigned.
Williamson’s counsel responded on March 5, 2002, by refiling Williamson’s appeal and sending the Administrative Judge a letter, stating:
I have received your letter concerning the appeal of Robert C. Williamson. Our records show that this appeal was refiled at the same time that the other DEA Diversion Investigators’ appeals were refiled with your office. Attached is a copy of that appeal with a certificate of service dated January 9, 2002. If you need additional information in order to docket this appeal as timely refiled please contact me.
The Administrative Judge then sent an Acknowledgement Order to Williamson on March 7, 2002, stating that the office “has received appellant’s refiled appeal.” The order also noted that “[b]ecause [Williamson’s] appeal appears to have been filed after the time limit, it may be untimely.” Williamson was then ordered “to file evidence and argument showing that [his] appeal was timely filed or that good cause existed for the delay” within fifteen days.
In the meantime, and notwithstanding the snafu in Williamson’s attempt to reinstate his appeal, Williamson’s counsel and Justice were moving forward with the group of DEA appeals that had been deferred pending a final decision in Hannon. On March 22, 2002, Justice and Williamson’s counsel jointly moved for a thirty-day suspension under 5 C.F.R. § 1201.28 because “additional time is necessary to conduct discovery due to the unique procedural obstacles that are present in these cases.” Williamson’s counsel understood this joint request for suspension to automatically delay the time required for him to respond to the March 7, 2002, Acknowledgement Order. The Administrative Judge thought otherwise: on March 28, 2002, he dismissed Williamson’s appeal with prejudice as untimely refiled. Williamson v. Merit Sys. Prot. Bd., No. AT0831000852-I-2 (M.S.P.B. Mar.28, 2002) (“Initial Decision”). The Administrative Judge explained the dismissal:
Inexplicably, the appellant did not file a response to the timeliness issue [as required by the Acknowledgement Order], Despite that failure, I have fully considered the appellant’s explanation for the late filing contained in the refiled appeal.
It is crystal clear that a clerical error was made by the appellant’s attorney’s support staff since a refiled appeal was prepared and faxed to the agency but not to the Board. Clearly, the appellant intended to refile his appeal on January 9, 2002, along with the many other DEA Diversion Investigators who refiled their appeals on or about that date. But, this appeal was not received by the Board on or about January 9, 2002, and the appellant failed to present evidence to show that it was, in fact, served on the Board on that date. Indeed, the absence of the Board from the certificate of service evidences that the appeal was not served on the Board. Based on this record, I find that the appellant did not refile his appeal with the Board, although he intended to.
Id.
at 3-4. Relying on
Moore v. Department of the Treasury,
After receiving the Initial Decision, Williamson petitioned the Board for review of the dismissal. Williamson’s petition included a declaration of his counsel’s office manager, who stated that she mailed and faxed Williamson’s appeal to the Board on January 9, 2002. Williamson had not presented the declaration to the Administrative Judge, but according to Williamson’s counsel, he would have presented this kind of evidence prior to the expiration of what he believed was an extended time period to respond to the Acknowledgment Order. The Board denied Williamson’s petition for review, making the Administrative Judge’s Initial Decision its Final Decision.
Williamson v. Dept. of Justice,
No. AT0831000852-I-2,
II. DISCUSSION
Williamson’s petition for review to this court argues that the Board erred by failing to: (1) treat Williamson’s appeal as refiled based on the January 9, 2002, letter; (2) stay the time for Williamson to respond to the Acknowledgement Order; (3) consider the March 5, 2002, letter with attached certificate of service as preponderant evidence that Williamson’s appeal was filed on January 9, 2002; and (4) accept Williamson’s explanation for refiling on March 5, 2002, as good cause for any delay. This court is vested with jurisdiction to review the final decision of the Board by 5 U.S.C. § 7703(b)(1). When considering Williamson’s petition for review, we
shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be — (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence; ....
5 U.S.C. § 7703(c) (2000). As explained below, we find that the Administrative Judge failed to follow the procedures required by the Board’s regulations when he dismissed Williamson’s appeal based in part on having received no response to the March 7, 2002 Acknowledgement Order. We also disagree with the Administrative Judge’s determination that the evidence of record failed to establish that the appeal was timely filed or that there was good cause for any delay in filing.
A
According to 5 C.F.R. § 1201.28(a):
The parties may submit a joint request for additional time to pursue discovery or settlement. Upon receipt of such request, the judge will suspend processing of the case for a period up to 30 days. The judge will grant an extension of the suspension period for up to an additional 30 days upon a joint request from the parties for additional time.
This regulation gave the Administrative Judge no discretion to deny the request for more time: he was required to suspend processing of the case.
We are not persuaded by the Board’s justification on appeal for the Administra
We also note that the impact of the Administrative Judge’s decision is to impose the most severe sanction available-— the complete loss of Williamson’s appeal rights — based on the fact that Williamson had not yet responded to the Acknowledgement Order. The Board’s precedent notes that such an “extreme sanction of dismissal of an appeal for failure to prosecute should not be imposed for a single instance of failure to comply with a Board order. In the absence of bad faith or evidence that an appellant intends to abandon his appeal, dismissal for failure to prosecute is generally inappropriate.”
Burnett v. Dep’t of the Navy,
We therefore conclude that the Administrative Judge erred by dismissing Williamson’s case prior to the expiration of the requested thirty-day suspension. The time for Williamson to respond to the Ac-knowledgement Order should have been delayed in response to the parties’ joint motion to suspend proceedings.
B
Alternatively, we also disagree with the Administrative Judge’s determination that, on the record before him, he was compelled to dismiss Williamson’s appeal as
Under the first alternative, there are at least three documents that, taken together, are sufficient to constitute preponderant evidence that Williamson’s appeal was filed on January 9, 2002. First, Williamson’s counsel sent a letter to the Board on January 9, 2002, stating that he was refiling that same day
“all
of the DI appeals previously pending before the MSPB” (emphasis added). It is undisputed that Williamson’s appeal is one of those DI appeals. The January 9, 2002, letter is therefore at least some evidence that Williamson’s appeal was timely filed at the same time as the other DI appeals. Second, Williamson’s counsel sent the Administrative Judge a letter on March 5, 2002, representing that the “appeal was refiled at the same time that the other DEA Diversion Investigators’ appeals were refiled with your office.” Counsel’s representation that the appeal was filed on January 9, 2002, is further support for the fact that the appeal was indeed filed on that date.
See Burnett,
On balance, and in the absence of the presentation by Justice of any evidence to the contrary, we find that Williamson established that his appeal was refiled on January 9, 2002. The Administrative Judge’s determination to the contrary was not supported by substantial evidence and was an abuse of discretion.
Pyles v. Merit Sys. Prot. Bd.,
With respect to the second alternative under which Williamson’s appeal should have been reinstated—that there was good cause shown for the delay—we likewise disagree with the Administrative Judge’s ruling. The Board has acknowledged that “ ‘[b]road equitable principles of justice and good conscience’ should be applied in good cause determinations.”
See Walls v. Merit Sys. Prot. Bd.,
Williamson’s excuse for filing his appeal on March 5, 2002 (assuming that it was not filed on January 9, 2002) was that
III. CONCLUSION
For the foregoing reasons we reverse the Board’s decision dismissing Williamson’s appeal as untimely and remand to the Board for reinstatement of Williamson’s appeal.-
REVERSE and REMAND.