               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


                                        04-3046


                                  EDWARD J. VANN,

                                                      Petitioner,

                                           v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                      Respondent.

                          __________________________

                          DECIDED: December 15, 2004
                          __________________________


Before MAYER, Chief Judge, MICHEL and LINN, Circuit Judges.

PER CURIAM.

      Edward J. Vann seeks review of the final decision of the Merit Systems

Protection Board (“board”) dismissing his appeal as untimely. Vann v. United States

Postal Serv., No. PH-0752-03-0205-I-1 (M.S.P.B. Oct. 22, 2003).        Because Vann’s

untimely filing is due in part to both the United States Postal Service’s (“agency”)

misinterpretation of 5 U.S.C. § 2108(3) with respect to what constitutes a “preference

eligible” veteran, and to the agency’s persistent stance that Vann had no right of appeal

to the board, we reverse and remand.
      Congress has expressly limited the scope of our review in an appeal from the

board. Specifically, we must affirm the board’s decision unless it was “(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).        “Under the

substantial evidence standard of review, a court will not overturn an agency decision if it

is supported by ‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546

(Fed. Cir. 1994) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229

(1938)).   The burden upon the petitioner of establishing any deficiencies in the

administrative decision is a heavy one, because there is a presumption that

administrative actions are correct and that government officials act in good faith in

discharging their duties. Sanders v. United States Postal Serv., 801 F.2d 1328, 1331

(Fed. Cir. 1986).

      When Congress created the new Postal Service, by adopting the Postal

Reorganization Act, it provided generally for two types of procedures for resolution of

disputes over disciplinary actions against postal employees.      See Horner v. Schuck,

843 F.2d 1368, 1371-72 (Fed. Cir. 1988).        One procedure involves an appeal to the

board, 5 U.S.C. § 7701 et seq.; the other involves the filing of a grievance pursuant to

the grievance-arbitration procedure of an applicable collective bargaining agreement,

39 U.S.C. § 1206(b). The parties agree that not all federal employees have the right to

appeal adverse employment decisions to the board. This is a right conferred by statute




04-3046                                     2
to certain categories of individuals, one such category being those Postal Service

employees who are “preference eligible.”

       Pursuant to 5 U.S.C. § 7513(a), a federal agency may remove an employee from

service “only for such cause as will promote the efficiency of the service.”          Under

subsection (d) of that same law, an employee who is removed from service “is entitled

to appeal to the Merit Systems Protection Board.” “Employee” is defined under 5 U.S.C.

§ 7511(a)(1)(B) to include “a preference eligible in the excepted service who has

completed 1 year of current continuous service in the same or similar positions . . . (ii) in

the United States Postal Service. . . .” “Preference eligible” employees are defined at 5

U.S.C. § 2108(3) as, inter alia, “disabled veterans,” i.e., those individuals who “served

on active duty in the armed forces, [have] been separated therefrom under honorable

conditions, and [have] established the present existence of a service-connected

disability or [are] receiving compensation, disability retirement benefits, or pension” from

the military or the Department of Veterans Affairs. 5 U.S.C. §§ 2108 (2), (3)(C) (2000)

(emphasis added).      The plain reading of this statute leads to only one logical

interpretation – a veteran does not have to be receiving compensation to be defined as

a “disabled veteran” according to 5 U.S.C. § 2108(2).

       An appeal to the board must normally be filed within 30 days after the effective

date of the action being appealed or within 30 days of receipt of the agency’s decision,

whichever is later. 5 C.F.R. § 1201.22(b) (2000). In its discretion, the board may grant

a waiver for an untimely appeal on a showing of good cause. Id. § 1201.22(c).             To

establish good cause for a filing delay a petitioner must show that the delay was

excusable under the circumstances and that he exercised due diligence in attempting to




04-3046                                      3
meet the filing deadline. Zamot v. Merit Sys. Prot. Bd., 332 F.3d 1374, 1377 (Fed. Cir.

2003) (citing Phillips v. United States Postal Serv., 695 F.2d 1389, 1391 (Fed. Cir.

1982)). The burden is on the petitioner to demonstrate excusable delay. Mendoza v.

Merit Sys. Prot. Bd., 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc).         Factors that

determine good cause include “the length of the delay; whether appellant was notified of

the time limit or was otherwise aware of it; the existence of circumstances beyond the

control of the appellant which affected his ability to comply with the time limits; the

degree to which negligence by the appellant has been shown to be present or absent;

circumstances which show that any neglect involved is excusable neglect; a showing of

unavoidable casualty or misfortune; and the extent and nature of the prejudice to the

agency which would result from waiver of the time limit.” Walls v. Merit Sys. Prot. Bd.,

29 F.3d 1578, 1582 (Fed. Cir. 1994) (citations omitted).

      Vann was removed from his position as a letter carrier effective November 26,

1999. The agency’s notice letter informed him of his right to file a grievance under the

negotiated grievance procedure, i.e., arbitration, but it did not include any information

regarding his right to appeal to the board.      Vann claims that around this time he

informed the agency that he was a “preference eligible” veteran, but the agency

dismissed his claims and insisted his only recourse was through the arbitration process.

Vann’s claim for “preference eligible” status stems from a March 1984 Department of

Veterans Affairs (“VA”) rating decision, which stated:

      We cannot grant your claim for disability benefits.
      The disability listed below is service-connected but is less than 10%
      disabling and compensation is not payable.
      SKIN CONDITION
      There is entitlement to necessary treatment by the VA for any service-
      connected disability. . . .



04-3046                                     4
By its own admission, the agency was in possession of this letter as early as November

2000 and aware that Vann had “a service-connected disability.” The agency, however,

determined that Vann was not “preference eligible” because he was not receiving

compensation for his disability. As late as May 2003, the agency contended that “[t]he

[VA] did not grant Appellant’s claim for disability benefits. Therefore, the Appellant is

not a disabled Veteran entitling him to preference eligibility and the Board does not have

jurisdiction over his appeal. . . .” Agency’s Motion for Dismissal Based on Jurisdiction,

filed May 2, 2003. As discussed above, this is a clear misinterpretation of 5 U.S.C.

§ 2108.     The board analyzed this error in interpreting the statute and correctly

concluded, “the natural meaning of 5 U.S.C. § 2108(2) is that while anyone who is

receiving compensation for a service-connected disability meets the definition of

‘disabled veteran,’ any person who has been determined to have any kind of service-

connected disability is also a ‘disabled veteran,’ whether or not the disability is sufficient

to merit compensation.” Vann v. United States Postal Serv., No. PH-0752-03-0205-I-1

(M.S.P.B. July 18, 2003) (“Initial Decision”).

       Vann challenged the adverse action through the negotiated grievance procedure.

After a hearing before an arbitrator, his grievance was denied effecting his removal on

August 4, 2000.     At that point, Vann should have filed an appeal to the board by

September 5, 2000.       He waited, however, until March 23, 2003.           Throughout the

proceedings the agency persisted in its unsupported argument that Vann was not

“preference eligible” and that he had no right to appeal to the board.            The board

determined that, while the agency did not provide Vann with notice of his right to appeal

to the board, Vann should have been aware that he had appeal rights. Further, the




04-3046                                          5
board found that a prudent person in Vann’s situation would not have relied on the

agency’s opinion regarding his entitlement to appeal to the board, but instead would

have contacted the board himself. Accordingly, the board found that Vann failed to

show good cause to waive his untimely filing.

      Considering the first factor to excuse an untimely filing, the length of the delay,

we agree with the board that the 31 month period was excessive.                All other

considerations, however, weigh in Vann’s favor.      The board held that he was not

advised of the regulatory time limit because the agency insisted he had no right of

appeal. The conduct of the agency – misinterpreting a statute plain on its face and

persisting in that erroneous interpretation for three years – is such that Vann’s delayed

filing should be excused under the circumstances. We cannot agree with the board that

a reasonable person would ignore the legal pronouncement by the agency and persist

in an appeal the agency had adamantly claimed was unavailable.

      We have stated that “[t]he Board is not required to find good cause for an

untimely appeal whenever an employee claims that the agency failed to provide him

with all the information he regards as pertinent to his decision whether to challenge the

agency action.” Krizman v. Merit Sys. Prot. Bd., 77 F.3d 434, 439 (Fed. Cir. 1996); see

also Clark v. United States Postal Serv., 989 F.2d 1164 (Fed. Cir. 1993) (holding an

agency’s failure to advise an employee of his right to appeal to the board did not

constitute “good cause” for the employee’s untimely appeal where the agency was not

aware at the time that the employee enjoyed a limited right of appeal to the board).

Both Krizman and Clark are readily distinguishable. In both cases the agency passively

omitted information relevant to the employee’s course of appeal. In neither case did the




04-3046                                    6
agency affirmatively misrepresent to the employee that he had no such right of appeal

under existing law.

      When weighing the extent and nature of the prejudice to the agency which would

result from the waiver of the time limit, we observe that the agency’s prejudice is self

inflicted: it relied on an erroneous interpretation of 5 U.S.C. § 2108 that influenced

Vann not to seek board review in the first instance. The presumption that administrative

actions are correct and that government officials act in good faith in discharging their

duties, see Sanders, 801 F.2d at 1331, has been sufficiently overcome to require

consideration of this case on the merits.




04-3046                                     7
