Hurricanes dominated the news for a couple of years. Now we have the apparent “Hurricane Ivan exception” to the time limit for appealing to the full MSPB from the initial decision of its AJ.
The Department of Defense removed Charles Griffin from his position as a Financial Clerk. Mr. Griffin timely appealed this action to the MSPB’s Atlanta Regional Office. Following a hearing, the AJ upheld the removal action in a decision dated September 14, 2004. The standard form letter went to Mr. Griffin advising him that if he wanted to seek review by the full Board, his petition must be postmarked on or before October 19, 2004, the date on which the AJ decision would otherwise become the final decision of the Board.
You guessed it–on November 19, 2004, Mr. Griffin filed his petition seeking review by the full Board. The Board responded by politely pointing out that the deadline was some 30 days before he filed, and his petition was going to be dismissed unless he showed “good cause” for his late filing.
This is what Mr. Griffin responded:
“I thought November 19, 2004 was the deadline to have my petition postmarked . . . .
Unfortunately, I failed to realize that because of our recovery from Hurricane Ivan, U.S. Postal Service operations have been greatly altered. I have been informed that most phases of their operation are still in extreme backlog/catch-up phase.” (Opinion, p. 2)
The Board was not persuaded and dismissed the petition as untimely, stating “a general claim of a natural disaster does not demonstrate good cause to excuse an untimely filed [petition for review…” Nor did the Board buy his argument about his miscalculation of the due date. (Id.)
Mr. Griffin went to court. The Federal Circuit went through some rather interesting machinations to reach the decision to remand the case to the Board. Referring to “an apparent communication failure between the parties” (p. 3) the court further states: “Mr. Griffin’s Response, although not perfectly clear, suggests that he believes his Petition was timely filed.” (emphasis supplied; p. 4)
The court felt that the confusing language in the Board’s standard letter (“…it is doubtful that a thirty-day period can be clearly explained by reference to five, thirty, and thirty-five-day periods…” ) in effect “deprived Mr. Griffin of the opportunity to explain a critical fact, namely, the date he received the Initial Decision. Because Mr. Giffin did not include that information, the Board and Mr. Griffin do not address the critical issues about the timeliness of his filing.” (pp. 5-6)
What is interesting about this decision—which bounces the case back to the Board to give Griffin a chance to show the date he received the initial decision and his reason for delay in filing his petition—is that it appears to place the burden on MSPB rather than the appellant to explain the untimely filing. The Board already gave Griffin an opportunity to “show cause” for the delay and apparently he did not do a good job of it. But that’s OK because he “believes his Petition was timely filed.”
Reading between the lines, the impression is that the court was swayed by the vague “Hurricane Ivan” excuse and did not want to be party to throwing someone out of the process if indeed the hurricane had caused the initial decision to arrive well after the MSPB’s assumed normal 5-day mail time.
Meanwhile, I suspect the folks at MSPB are taking a hard look at their boiler plate language on the time limit for filing a petition for review!
Griffin v. MSPB, U.S.C.A.F.C., No. 05-3337 (non-precedential), 1/18/06)
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