                   NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                     is not citable as precedent. It is a public record.

     United States Court of Appeals for the Federal Circuit
                                         05-3337

                                 CHARLES D. GRIFFIN,

                                                              Petitioner,

                                            v.

                        MERIT SYSTEMS PROTECTION BOARD,

                                                              Respondent.

                            ___________________________

                            DECIDED: January 18, 2006
                            ___________________________


Before RADER, SCHALL, and PROST, Circuit Judges.

RADER, Circuit Judge.

         The Merit Systems Protection Board (the Board) dismissed Charles D. Griffin’s

petition for review (Petition) of an initial decision as untimely filed. Because the Board

did not consider the actual filing delay when it determined that Mr. Griffin failed to

establish good cause for his delay, this court vacates the Board’s dismissal.

                                     BACKGROUND

         The Department of Defense removed Mr. Griffin from his position as a Financial

Clerk.    He filed a timely appeal challenging his removal with the Board’s Atlanta

Regional Office.    After conducting a hearing, the Board affirmed the Department’s

removal decision on September 14, 2004. Griffin v. Dept. of Defense, No. AT-0752-04-
0574-I-1 (MSPB Sept. 14, 2004) (Initial Decision). That Initial Decision concluded with

the following “NOTICE TO APPELLANT”:

                      This initial decision will become final on October 19,
              2004, unless a petition for review is filed by that date or the
              Board reopens the case on its own motion. This is an
              important date because it is usually the last day on which
              you can file a petition for review with the Board. However, if
              this initial decision is received by you more than 5 days after
              the date of issuance, you may file a petition for review within
              30 days after the date you actually receive the initial
              decision.
Initial Decision, slip op. at 16. Mr. Griffin filed his Petition challenging that decision on

November 19, 2004. In response to his Petition, the Board issued a Notice to Mr. Griffin

stating:

              Your petition is untimely filed because it was not postmarked
              or received in this office on or before October 19, 2004. The
              Board’s regulations (C.F.R. 1201.114(f)) require that an
              untimely petition for review must be accompanied by a
              motion for waiver of the time limit.
Respondent’s Informal Brief, RA-36 (the Notice). The Notice further explained that Mr.

Griffin’s Petition would be dismissed absent a showing of “good cause for [his] late

filing.” Id. Mr. Griffin timely responded to that Notice, stating:

              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.
Id. at RA 32 (Response).

       The Board found Mr. Griffin’s Response unpersuasive and dismissed his Petition

because “a general claim of a natural disaster does not demonstrate good cause to

excuse an untimely filed [petition for review],” and because “his miscalculation of the



05-3337                                       2
number of days in which to file a [petition for review] also does not constitute good

cause for the filing delay.” Griffin v. Dept. of Defense, No. AT-0752-04-0574-I-1 slip op.

at 3 (MSPB July 22, 2005) (Dismissal Order).          Mr. Griffin timely appeals from that

dismissal.

                                     DISCUSSION

      This court possesses limited authority to review a Board decision. The Board’s

decision must be affirmed unless it is: (1) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the 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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307,

1311 (Fed. Cir. 2003). On appeal, this court examines whether the Board appropriately

denied Mr. Griffin’s petition as untimely. See Wallace v. Merit Sys. Prot. Bd., 728 F.2d

1456, 1459 (Fed. Cir. 1984) (“The sole issue is the correctness of the MSPB decision

holding the appeal to the board was untimely, which in no way involves the merits.”).

      While appearing to present a straightforward timeline coupled with well-

established filing deadlines, this appeal also evinces an apparent communication failure

between the parties.    The Board begins its analysis with the assumption that Mr.

Griffin’s petition was due by October 19, 2004. The Board then focuses its inquiry on

Mr. Griffin’s showing of good cause for a one-month delay in filing his Petition. The

Board dismisses as insufficient Mr. Griffin’s statements that he thought the filing

deadline was November 19, 2004, and that Hurricane Ivan affected the United States

Postal Service. See Dismissal Order, slip op. at 3.




05-3337                                     3
       Mr. Griffin’s Response, although not perfectly clear, suggests that he believes his

Petition was timely filed. He attached to his Response evidence of the November 19,

2004 filing date of his Petition. See Respondent’s Informal Brief at RA 34 (suggesting

that he continued to believe that the November 19, 2004 date was critical). This court

finds some reason to credit Mr. Griffin’s position.

       Contrary to repeated statements by the Board, October 19, 2004 was not

necessarily the deadline for Mr. Griffin’s Petition.     5 U.S.C. § 7701(e)(1)(A) is the

statutory basis for the filing deadline in this case. That section explains that a Board

decision will become final unless:

              a party to the appeal or the Director petitions the Board for
              review within 30 days after the receipt of the decision.


5 U.S.C. § 7701(e)(1)(A) (2000). In its implementation of the statutory time period, the

Board assumes that a decision will generally reach its destination within five days of

issuance, and requires a petitioner to establish any delay beyond that five day period.

Thus, the Board’s rule states:

              Any petition for review must be filed within 35 days after the
              date of issuance of the initial decision or, if the petitioner
              shows that the initial decision was received more than 5
              days after the date of issuance, within 30 days after the date
              the petitioner received the initial decision.


5 C.F.R. § 1201.114(d) (2005) (emphasis added). The Board’s rule differs from the

statutory time period. The statute requires any petition for review to be filed within thirty

days of receipt of the decision; the implementing regulation adds a requirement that the

petitioner establish any delay in receipt of the decision that exceeds five days.




05-3337                                      4
Unfortunately, when the Board instructed Mr. Griffin about his appeal rights, the time

period the Board set forth was not consistent with either the statute or the rule.

       The Board’s Initial Decision explained to Mr. Griffin: “if this initial decision is

received by you more than 5 days after the date of issuance, you may file a petition for

review within 30 days after the date you actually receive the initial decision.” Initial

Decision, slip op. at 16. That instruction informs a petitioner that any filing within thirty

days of receipt of the decision is timely. In other words, the appeal instructions provided

in the Initial Decision do not explain that a petition for review filed more than thirty-five

days after the date of the Initial Decision must include a showing regarding the date of

receipt of the Initial Decision, a requirement of 5 C.F.R. § 1201.114(d). Thus, while the

instructions in the Initial Decision may have been “straightforward,” as characterized by

the Board, Dismissal Order, slip op. at 3, they were not complete. To the extent the

Board relied on language in the Initial Decision that purportedly put Mr. Griffin on notice

of the particular timing requirements for filing his Petition, it erred because that language

was not complete. See Waldau v. Merit Sys. Prot. Bd., 19 F.3d 1395, 1403 (Fed. Cir.

1994) (“[T]he government must unambiguously and clearly give notice of that which it

requires of a litigant”) (citing Burgess v. Merit Sys. Prot. Bd., 758 F.2d 641, 643-44 (Fed.

Cir. 1985).

       These shortcomings of the Board’s language in its Initial Decision are not

necessarily the cause of Mr. Griffin’s apparently late filing, though it is doubtful that a

thirty-day period can be clearly explained by reference to five, thirty, and thirty-five-day

periods. Nonetheless the Board’s incomplete explanation deprived Mr. Griffin of the

opportunity to explain a critical fact, namely, the date he received the Initial Decision.




05-3337                                      5
Because Mr. Griffin did not include that information, the Board and Mr. Griffin do not

address the critical issues about the timeliness of his filing.

         From the point of view of the petitioner in this situation, he may think he has

complied with the instructions in the Initial Decision. Thus, the petitioner expressed

confusion when the Board responded with a demand for an explanation for his late

filing. From that viewpoint, Mr. Griffin’s response, i.e. providing proof of his November

19, 2004 filing and a statement regarding weather-related postal delays, makes sense.

But from the vantage point of the Board, waiting for an explanation of a one-month

delay, such a response is logically insufficient.

         This appeal actually presents three critical time periods: (1) the period between

September 14, 2004, i.e. when the Initial Decision was issued, and the date on which

Mr. Griffin received that decision; (2) the thirty-day period following receipt of the Initial

decision, i.e., the statutory period for filing a petition for review; and (3) the delay period

extending beyond the close of the period for filing a petition for review, i.e., the period

for which Mr. Griffin must show good cause for delay. Because the Board did not

consider Hurricane Ivan’s effect on mail delivery and its potential to have delayed

receipt of the Initial Decision beyond the assumed five days provided by the Board’s

rule, it erred in its calculation of the delay period for which Mr. Griffin was required to

show good cause. In a submission to this court dated December 19, 2005, Mr. Griffin

asserts that he did not receive the Initial Decision until “approximately October 14,

2004.”      He also asserts that Hurricane Ivan struck the Pensacola region on

September 16, 2004, two days after the Initial Decision was issued.                Mr. Griffin

apparently did not mention those two specific dates earlier. Moreover the record does




05-3337                                       6
not show that the Board ever suggested the relevance of those dates. In other words,

the Board did not inform Mr. Griffin that he needed to establish that he received the

Initial Decision more than five days after it was issued. Therefore, Mr. Griffin did not

present the relevant information sooner.

       As the Board indicated in its Dismissal Order, one factor relevant to the waiver of

a filing deadline is “the length of delay.” Dismissal Order, slip op. at 2; see also Walls v.

Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). The Board incorporated the

length of delay into its decision: “the appellant has not stated with any specificity how

Hurricane Ivan caused him to file his petition 1-month late.” These statements disclose

the errors in communication and analysis of the time periods. Mr. Griffin’s argument

seems to be that Hurricane Ivan caused a delay in his receiving the Initial Decision. To

the extent that Mr. Griffin is correct, his filing delay was less than one month. In fact, if

his October 14th date is accurate, the delay was five days.

       This court declines to make any factual determinations, but hopes this

explanation permits a proper analysis on remand. When the Board properly ascertains

the date of receipt of the Initial Decision, then its later reasoning will not be infected with

improper assumptions about the length or nature of any delays.

       Because the Board erred in considering whether there was good cause for Mr.

Griffin’s delay without first determining the length of that delay, this court vacates the

Board’s dismissal of Mr. Griffin’s Petition. On remand the Board may give Mr. Griffin an

additional opportunity to make a showing regarding: (1) the date of his receipt of the

Initial Decision; and (2) his reasons for delay in filing his Petition more than thirty days

after his receipt of the Initial Decision.




05-3337                                       7
