Time Limits Waived by Court for MSPB Appeal

A federal appeals court finds that the MSPB should have accepted an appeal that was filed 60 days late. The court found several reasons for ignoring the time limits including the fact that the employee did not have an attorney, English was not his first language, and his age.

The Federal Circuit has second-guessed the Merit Systems Protection Board, disagreeing with its decision to refuse to permit an appeal filed more than 60 days late to be heard. (Ladrido v. Merit Systems Protection Board, C.A.F.C. No. 2007-3182 (nonprecedential), 9/11/07)

Ladrido, having served in the Navy for 23 years, went to work for it as a civilian employee at the Naval Medical Center in San Diego. After some 32 years of civilian service as a Material Handler Supervisor, he was fired for gross negligence when a refrigerator malfunctioned causing $735,749 in damages to vaccines and medical supplies. (Opinion p. 2)

The letter removing Ladrido spelled out his appeal rights, informing him he could appeal to the Merit Systems Protection Board within 30 days, "although it omitted the consequences of late filing." (p. 2)

Ladrido filed his appeal 60 days late and the government moved to dismiss. The administrative judge issued an order giving Ladrido an opportunity to show why his appeal should not be dismissed as untimely and eventually granted the government’s motion. (p. 2)

The appeals court now finds that the Board abused its discretion in not excusing the late filing given "several factors" that "warranted discretionary waiver." (p. 3)

The court particularly took issue with the agency’s failure to include in the removal letter this language from 5 C.F.C. §1201.22(c):

"If a party does not submit an appeal within the time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The judge will provide the party an opportunity to show why the appeal should not be dismissed as untimely." (p. 3)

Even though the Board had in fact complied with the requirement to give Ladrido an opportunity to explain the late filing, this was apparently not good enough for the appeals court: "An agency’s failure to provide notice of appeal rights required by applicable regulations if serious enough can, by itself, constitute good cause for untimely filing of an appeal." (pp. 3-4)

The court then goes on to analyze that (even though the requirement to appeal within 30 days was indeed spelled out in the removal letter), there were "other particular circumstances of Ladrido’s case" that the AJ failed to assess. The court thought it was significant that he had immediately counseled with family members as to what he should do when Ladrido received the removal notice.

This apparently suggested to the court that Ladrido took the matter seriously and would have acted more promptly in finding counsel or seeking an extension had he realized the significance of not timely filing an appeal. Also, the court opined that the Board should have taken into consideration Ladrido’s age, his "declaration of emotional strain," the fact he did not have an attorney when he received the removal notice, and "his first language being other than English." (pp. 4-5)

The court manages to brush aside Ladrido’s misreading of the deadline for filing an appeal: "True, Ladrido’s son misapprehended the appeal deadline [the son read it as 1 year rather than 30 days], but had the document contained the omitted language…Ladrido may well have timely filed an appeal, even before obtaining counsel" since he or his son "might have appreciated the potentially fatal consequence of late filing…" (p. 4)

The bottom line is that the court reverses the Board’s decision and remands the case for processing on the merits. (p. 5)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.