Appealed from: Merit Systems Protection Board
Before Michel, Circuit Judge, Cowen, Senior Circuit Judge, and Lourie, Circuit Judge.
Charles Clark seeks review of the December 11, 1991, decision of the Merit Systems Protection Board (MSPB or Board), on remand, in Docket No. AT07529010517-1, dismissing his appeal from his demotion as untimely. Because the Board did not abuse its discretion in declining to waive the deadline for filing, we affirm. The appeal, however, raises novel preliminary issues concerning adverse actions taken pursuant to last chance settlement agreements, and appeals therefrom.
Mr. Clark was employed as a Supervisor of Mails in the United States Postal Service. On October 20, 1988, the Postal Service gave Mr. Clark a "Notice of Proposed Reduction in Grade and Reassignment," alleging that he had consistently failed to follow instructions and to perform his assigned duties.
On November 26, 1988, before any action was taken, the parties entered into a "last chance" settlement agreement which provided that the proposed reduction in grade would be rescinded if Mr. Clark agreed to follow instructions and to avoid further poor work performance. The agreement also provided that, if Mr. Clark breached the agreement, the reduction in grade would be reinstated and any appeal rights would be waived.
The Postal Service reinstated the reduction by letter, dated January 30, 1990, because petitioner had allegedly breached the agreement. The letter stated that the reduction would be effective no sooner than the beginning of the pay period following petitioner's receipt of the letter (effectively on February 10, 1990), and that petitioner had waived his right to appeal through any "administrative, contractual, or court procedures," pursuant to the terms of the last chance settlement agreement. Accordingly, the letter did not include any notice of appeal rights. For several months, Mr. Clark took no action.
On June 19, 1990, Mr. Clark sought the advice of an attorney. Mr. Clark filed an informal administrative complaint with the Equal Employment Opportunity Commission (EEOC), on June 27, 1990. In it, Mr. Clark challenged his demotion; however, he never filed a formal complaint. Instead, Mr. Clark filed an appeal with the MSPB on July 10, 1990, about four months after the deadline required by 5 C.F.R. § 1201.22(b) (1992).
In his appeal, Mr. Clark contested the Postal Service's allegations that he breached the settlement agreement by failing to follow instructions and having poor work performance. Mr. Clark asserted that he did not fail to follow instructions and was not guilty of poor work performance. Mr. Clark also claimed he was discriminated against on the basis of race.
In an initial decision of August 28, 1990, the administrative Judge (AJ) noted two threshold issues: jurisdiction and timeliness. After reviewing the record, the AJ dismissed the appeal for lack of jurisdiction, based on Mr. Clark's waiver of his appeal rights in the settlement agreement. The AJ determined that it was unnecessary to address the timeliness issue in view of her finding on jurisdiction. The AJ declined to consider petitioner's assertion that he did not breach the terms of the settlement agreement, stating that this would be tantamount to allowing petitioner to have an appeal on the merits, a right which he clearly waived in the settlement agreement. Petitioner's discrimination claim was dismissed because of the lack of an otherwise appealable action. The AJ's decision became final when neither party petitioned the Board for review. Mr. Clark then filed his petition for review in this court.
On February 21, 1991, while Mr. Clark's appeal was pending before us, this court issued its decision in Stewart v. United States Postal Serv., 926 F.2d 1146 (Fed. Cir. 1991), holding that where an employee raises a nonfrivolous issue of compliance with a last chance settlement agreement in which appeal rights are waived, the Board has jurisdiction to determine compliance with the agreement before addressing the scope and applicability of the appeal rights waiver. Id. at 1148. In view of Stewart, the Board filed a motion for leave to intervene, which was unopposed by Mr. Clark, and asked that the case be remanded so that the Board could reconsider its decision. The motion was granted on May 8, 1991.
The case was returned to the same AJ who had dismissed Mr. Clark's initial appeal for lack of jurisdiction. In an acknowledgement order dated June 26, 1991, the AJ noted the threshold issue "of compliance with the settlement agreement," and ordered that appellant set forth in writing the factual basis for his assertion that he did not breach the agreement. In the same order, the AJ again noted the issue of timeliness of the appeal and ordered appellant to file evidence and argument showing good cause existed for the delay.
On July 20, 1991, the agency filed a motion to dismiss the appeal as untimely. Under 5 C.F.R. § 1201.22(b), appellant had only 20 days from the day after the effective date of the action to file an appeal, which would have been March 2, 1990. Therefore, the agency argued that Mr. Clark's appeal should be dismissed as untimely because it was not filed until July 10, 1990.
In response to the agency's motion, Mr. Clark argued that the appeal should not be considered untimely because when he received his reduction in grade on February 10, 1990, he was acting pro se and first pursued his remedies through the EEOC. It was not until later, he said, that he learned that the MSPB was the proper forum for his complaint.
In her September 6, 1991 decision on remand, the AJ found that appellant had failed to establish good cause for a waiver of the filing deadline. Her basis was that appellant did nothing for more than four months after his demotion became effective on February 10, 1990, until he first sought the advice of an attorney on June 19, 1990. The AJ noted that it was not until shortly after this time that Mr. Clark filed his EEOC action. The AJ also noted that appellant offered no explanation for the four-month period of inaction, and therefore, found that Mr. Clark failed to show due diligence under the circumstances, a prerequisite to establishing good cause for waiver of the ...