                 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


                                       04-3404

                               FRANCIS X. COAKLEY,

                                               Petitioner,

                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                               Respondent.

                          ___________________________

                          DECIDED: June 24, 2005
                          ___________________________


Before MICHEL, Chief Judge, LOURIE, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

      Francis X. Coakley was a civilian employee of the Department of the Navy,

serving as a crew member on the USNS Pecos, which supported the USS Kitty Hawk

Battle Group. Civilian employees of the Navy with support functions equivalent to those

of deployable military personnel are subject to the same immunization requirements as

military personnel. The Navy ordered all crew members of the Pecos to have an HIV

test performed by the ship’s medical services officer (“MSO”) as a precursor for a

required smallpox vaccination.    Based on his reservations regarding the MSO’s

competence and discretion, Mr. Coakley refused to allow the MSO to administer the HIV
test. Mr. Coakley spoke to the ship’s captain, who was medically certified, and asked

him to administer the test. After conferring with his supervisors, the captain proposed

removing Mr. Coakley from his position for refusing to take the HIV test and smallpox

vaccination as ordered.

       Mr. Coakley responded to the proposed removal by alleging several incidents of

misdiagnosis involving the MSO that in his view showed that the MSO was incompetent.

Mr. Coakley also alleged that the MSO did not have adequate training and that the MSO

had told him the vaccinations were voluntary.          After considering Mr. Coakley’s

response, the Navy removed him from his position for refusing to follow orders.

According to an affidavit Mr. Coakley filed during this litigation, the Navy advised him in

late April 2003 that he would shortly be receiving a decision letter removing him from his

position. Mr. Coakley decided to appeal the removal decision to the Merit Systems

Protection Board, and on the recommendation of another crew member he retained

Steven R. Lewis to handle his appeal.

       According to Mr. Coakley, Mr. Lewis represented that he was a lawyer and the

director of the Family Legal Center in San Diego. The two agreed on a fee of $150 per

hour for Mr. Lewis’s services, and Mr. Coakley paid Mr. Lewis a retainer of $1500. On

April 29, 2003, Mr. Coakley received the notice of removal from the Navy, which was

dated April 28, 2003, and which designated May 2, 2003, as the effective date of his

removal. The letter advised Mr. Coakley that if he elected to appeal his removal to the

Merit Systems Protection Board he should file his appeal with the Board within 30

calendar days of the effective date of his removal. Although the letter stated that an

appeal form was attached, there was no attachment to the letter that Mr. Coakley




04-3404                                     2
received at that time.    On May 1, in response to Mr. Coakley’s inquiry, the Navy

provided Mr. Coakley with the attachments, which consisted of copies of the Merit

Systems Protection Board regulations and an outdated appeal form that indicated he

had only 20 calendar days within which to file his appeal. Mr. Coakley met with Mr.

Lewis on that date and provided those materials to him during their meeting.

      Mr. Coakley stated in his affidavit that shortly after retaining Mr. Lewis, Mr.

Coakley “looked him up on the website of the California State Bar Association, but did

not find him listed there.” Mr. Coakley asked Mr. Lewis about the absence of any listing

in his name, and Mr. Lewis again assured Mr. Coakley that he was a lawyer and said

that many lawyers in California did not belong to the state bar association.

      Mr. Lewis advised the Navy that he was representing Mr. Coakley and requested

a copy of the decision letter. According to Mr. Coakley, after Mr. Lewis received the

letter on May 7, 2003, he told Mr. Coakley that he had 30 calendar days from that date

to file an appeal with the Merit Systems Protection Board, because the 30-day appeal

period began to run when Mr. Coakley’s representative received the letter, as opposed

to when Mr. Coakley received the letter. Mr. Coakley asserted in his affidavit that he

contacted Mr. Lewis by telephone regularly to inquire about the progress of his appeal,

including every other day during the two weeks prior to June 5, 2003, the date when Mr.

Lewis filed the appeal.

      On June 16, 2003, the administrative judge who was assigned to the case

ordered Mr. Coakley to show cause why his appeal should not be dismissed on the

ground that his petition was filed three days late (i.e., more than 30 days after the

effective date of Mr. Coakley’s removal). Mr. Lewis prepared a response filed on June




04-3404                                     3
27, 2003, in which he asserted that the petition was timely filed. Mr. Lewis contended

that he had contacted the Navy and “was led to believe by the agency” that the 30-day

appeal period commenced the day after he received the notice of removal in his

capacity as Mr. Coakley’s representative. He also argued that the Board’s regulations

were unclear as to whether the 30-day time period for appeal commences when the

employee receives a copy of the removal notice or when the employee’s representative

receives a copy of the decision letter. The Navy responded that the regulation was

clear that the 30-day appeal period began to run as of the effective date of Mr.

Coakley’s removal, that Mr. Coakley was bound by the actions of his chosen

representative, and that there was no evidence that Mr. Coakley “was thwarted in the

prosecution of his appeal, by his representative.”

       On July 28, 2003, the administrative judge dismissed Mr. Coakley’s appeal as

untimely. The administrative judge found that the appeal was filed more than 30 days

after the notice of removal was given to Mr. Coakley and after the effective date of his

removal. It was thus was out of time under 5 C.F.R. § 1201.22(b), which requires that

an appeal be filed “no later than 30 days after the effective date, if any, of the action

being appealed, or 30 days after the date of receipt of the agency’s decision, whichever

is later.”   The administrative judge noted that although the Navy had provided Mr.

Coakley with an outdated and erroneous appeal form, the decision letter had correctly

advised him that his appeal was due for filing within 30 days of May 2, 2003, the

effective date of his removal. With respect to Mr. Lewis’s claim that a Navy employee

relations specialist had told him that the 30-day appeal period did not begin to run until

Mr. Lewis received a copy of the removal notice, the administrative judge concluded




04-3404                                     4
that Mr. Lewis’s “broad and nonspecific allegation” regarding the representations of the

agency official “is outweighed by the sworn statement from [the Navy employee

relations specialist] that she discussed the applicable time limits with [Mr. Lewis] and

that she never represented the deadline to differ in any way from that specifically

provided in the agency’s decision letter.” Finally, the administrative judge stated that an

appellant is generally responsible for the actions of his chosen representative and that

delays caused by a representative will not constitute good cause to excuse a filing

delay.    The administrative judge noted that the Board “has recognized a limited

exception to this rule for cases where an appellant proves that he actively monitored the

progress of his appeal but that his diligent efforts to prosecute his case were thwarted

by the deception and negligence of his representative.”         The administrative judge

added, however, that “[n]o such arguments were made here” regarding the applicability

of the exception.

         According to Mr. Coakley, Mr. Lewis failed to provide him with a copy of the

administrative judge’s opinion, despite repeated requests.        Mr. Coakley ultimately

obtained a copy of the decision from the Washington office of the Merit Systems

Protection Board. At that time, Mr. Coakley hired new counsel, who has represented

him since then.     Mr. Coakley’s new counsel investigated Mr. Lewis’s status and

discovered no listing in the Martindale-Hubbell directory in San Diego for Steven R.

Lewis and found no Steven R. Lewis listed with the State Bar of California as being

licensed to practice law in California and having an office in San Diego. When counsel

contacted Mr. Lewis directly and asked if he was an attorney, Mr. Lewis admitted that

he was not.




04-3404                                     5
       Mr. Coakley’s new counsel then filed a petition for review with the full Board,

supported by his own affidavit and one from Mr. Coakley.          In the petition, counsel

argued that the appeal was timely, based on the fact that Mr. Coakley was initially given

an outdated and incorrect appeal form. In addition, he argued that the Board should

excuse the late filing or remand the case to the administrative judge for further

proceedings on the issue of timeliness. Counsel noted that the period of delay was

short and argued that the circumstances established good cause for the delay. He

acknowledged that the declarations relating to Mr. Lewis’s status and his

representations to Mr. Coakley were not before the administrative judge, but argued that

the Board should take that evidence into account in determining whether to grant the

petition since that evidence was not available to Mr. Coakley prior to the administrative

judge’s decision.    Counsel argued that Mr. Coakley’s reliance on Mr. Lewis’s

representations about his status as an attorney and his representations as to the due

date of the appeal were reasonable and therefore constituted good cause for the filing

delay. The Board, however, denied the petition for review, stating without elaboration

that “there is no new, previously unavailable, evidence and that the administrative judge

made no error in law or regulation that affects the outcome.”

                                             I

       Mr. Coakley first argues that his appeal was timely because it was filed within 30

days of the date on which his representative received the correct appeal form and the

Board regulations, which were required to be provided to Mr. Coakley under 5 C.F.R.

§ 1201.21. The administrative judge determined that Mr. Coakley was apprised of the

30-day deadline in the decision letter and that he “failed to establish how the lack of the




04-3404                                     6
Board’s regulations or the outdated appeal form impeded his ability to timely file his

appeal.” Although the administrative judge appears to have believed that Mr. Coakley

did not receive a copy of the Board’s regulations until May 7, 2003, Mr. Coakley stated

in his affidavit that he received a copy of the Board’s regulations on May 1, 2003, along

with the outdated appeal form. It is unclear from Mr. Coakley’s affidavit whether the

Board regulations provided to him on May 1, 2003, were current or outdated.

       Mr. Coakley relies on Shifflett v. United States Postal Service, 839 F.2d 669

(Fed. Cir. 1988), for the proposition that the Navy was required to provide him with the

updated appeal form and a copy of the regulations before the 30-day time period for

filing an appeal could begin. Shifflett, however, does not support his argument. In

Shifflett, the employee was not provided with notice of her right to appeal to the Merit

Systems Protection Board, the time within which an appeal had to be filed, or the place

where such a filing should be made.        In this case, by contrast, the decision letter

informed Mr. Coakley of all three. Although the outdated appeal form that was given to

Mr. Coakley indicated that he had only 20 days within which to file an appeal, that

information could not have prejudiced him by inducing him to miss the longer, 30-day

appeal period set forth in the decision letter. There was nothing in the materials given

to Mr. Coakley that could have led him to believe that the period for filing an appeal was

greater than 30 days. The error in the appeal form is therefore not a sufficient basis on

which to hold that the June 5, 2003, filing was timely.

                                             II

       Mr. Coakley next argues that he established good cause for waiving the time limit

for filing his appeal under 5 C.F.R. §§ 1201.12 and 1201.22(c), and that the Board




04-3404                                      7
abused its discretion when it did not waive the time limit in his case. Section 1201.12

states that “[a] judge may, for good cause shown, waive a Board regulation unless a

statute requires application of the regulation.” Section 1201.22(c) states that “[i]f 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,” and

“[t]he judge will provide the party an opportunity to show why the appeal should not be

dismissed as untimely.”

                                             A

       The administrative judge held that Mr. Coakley did not show good cause for filing

his appeal late. The only grounds for good cause cited in the memorandum filed by Mr.

Lewis on Mr. Coakley’s behalf were (1) the outdated appeal form, which the

administrative judge found nonprejudicial, and (2) Mr. Lewis’s claim that an agency

representative had misled him as to the due date of the appeal, which the administrative

judge did not credit. The administrative judge noted that Mr. Lewis did not argue in his

memorandum that Mr. Coakley’s case fell within the category of cases in which the

appellant proves that he has actually monitored the progress of his appeal but that his

diligent efforts were thwarted by the deception and negligence of his representative.

The failure to make that argument is hardly surprising, in that it was Mr. Lewis who

prepared and filed that memorandum. In any event, that argument and the evidence

subsequently submitted in support of it were not before the administrative judge.

Accordingly, based on the record at the time of the initial decision, it was not error for

the administrative judge to deny Mr. Coakley’s request to waive the 30-day appeal

period.




04-3404                                      8
                                            B

      It is a different matter, however, as to whether the full Board abused its discretion

when it failed to grant Mr. Coakley’s petition for review in response to the submission

filed by his new counsel. The Board’s regulations authorize it to grant a petition for

review when it is established that new and material evidence is available that, despite

due diligence, was not available when the record closed. 5 C.F.R. § 1201.115(d)(1).

We have held that the Board abuses its discretion if it denies a petition for review even

though the petitioner submits new and material evidence that was not available earlier

in the proceeding despite the petitioner’s exercise of due diligence.      See Wright v.

United States Postal Serv., 183 F.3d 1328, 1332 (Fed. Cir. 1999).          Based on the

evidence that Mr. Lewis had deceived Mr. Coakley as to his status as an attorney and

that Mr. Coakley had repeatedly endeavored to ensure that Mr. Lewis would file the

appeal on time, we conclude that the evidence submitted by Mr. Coakley with his

petition for review was newly discovered and that it was material to the issue of

timeliness.

      First, the evidence presented to the Board was newly discovered. Assuming Mr.

Coakley’s affidavit to be true—and there was no evidence submitted by the agency to

contradict Mr. Coakley’s allegations—the information regarding Mr. Lewis’s status was

not known to Mr. Coakley at the time of the administrative judge’s decision. Nor was it

unreasonable for Mr. Coakley not to have discovered that information. According to Mr.

Coakley, Mr. Lewis repeatedly assured him that he was an attorney, and even though

Mr. Coakley conducted his own investigation of the matter, Mr. Lewis gave a plausible




04-3404                                     9
explanation for the absence of his name on the list of attorneys maintained by the state

bar association.

       Second, the evidence presented to the Board was material to the issue of

timeliness. In analyzing whether good cause has been shown for an untimely filing, this

court and the Board have focused on (1) the length of the delay, (2) whether the

appellant was notified of the time limit or was otherwise aware of it, (3) whether there

were factors beyond the appellant’s control that affected his ability to comply with the

time limits, (4) the degree to which negligence by the appellant has been shown to be

present, and (5) the nature of the prejudice to the agency that would result from waiver

of the time limit. See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994);

Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180 (1980). In this case, the period of

delay was very short; there has been no showing (or even any claim) of prejudice to the

agency; and the new evidence is relevant to two of the other Walls factors.           The

evidence bears on whether Mr. Coakley was in any way negligent in allowing his appeal

to be filed late, and on whether Mr. Lewis’s conduct, including his misrepresentations as

to his status as an attorney, constituted actions outside of Mr. Coakley’s control that

affected his ability to comply with the time limit.

       It was not unreasonable for Mr. Coakley to credit Mr. Lewis’s repeated insistence

that the 30-day appeal period ran from the date that Mr. Lewis received the decision

letter with the correct enclosures, which was May 7, 2003. Although the decision letter

stated that the appeal would be due within 30 days of the effective date of Mr. Coakley’s

removal, the Board’s regulations state that the appeal is due within 30 days of the

effective date of the action being appealed, “or 30 days after the date of receipt of the




04-3404                                       10
agency’s decision, whichever is later.” 5 C.F.R. § 1201.22(b). The regulation does not

specify receipt by the employee, as opposed to his representative, and although the

Board has construed the term “receipt” to refer to receipt by the employee, that

construction would not necessarily be clear to a layman, particularly if his

representative, putatively an attorney, insisted that the term “receipt” referred to receipt

by the representative of a complete package consisting of the decision letter, the Board

regulations, and a correct appeal form.

       For that reason, we reject the Board’s argument on appeal that Mr. Lewis’s

status as a nonlawyer did not prevent Mr. Coakley “from fulfilling his responsibility to file

his appeal in a timely manner.” While a person in Mr. Coakley’s position might be

skeptical of a nonlawyer’s representation that the Board’s rules mean that the 30-day

period runs from “receipt” by the employee’s representative, it is hardly unreasonable

for a layman to accept the representation, by a person purporting to be a lawyer, that

the Board’s rules are construed in that fashion.

       Although the Board and this court have frequently held that an employee is

normally responsible for errors committed by his chosen representative, see, e.g., Rowe

v. Merit Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986), that principle is subject to an

exception for cases in which the employee has diligently pursued his appeal rights and

has lost those rights because of deception or negligence by his attorney. In Dunbar v.

Department of the Navy, 43 M.S.P.R. 640, 643-44 (1990), for example, after an

administrative judge dismissed Mr. Dunbar’s appeal for untimeliness, the full Board

granted the petition for review. The Board then held that “it is inappropriate to apply the

principle that an attorney’s actions should be attributed to his client when the client has




04-3404                                      11
proven that his diligent efforts to prosecute the suit were, without his knowledge,

thwarted by his attorney’s deceptions and negligence.”1 Dunbar, 43 M.S.P.R. at 644.

The Board noted that Mr. Dunbar had made several telephone calls to his

representative’s law office to inquire about the status of his appeal and to remind him

that the deadline was approaching, and he had even appeared at his representative’s

office in an unsuccessful attempt to mail the appeal himself on the day it was due. Id.

The representative’s secretary failed to mail the appeal after being instructed at least

twice by the representative to do so. Id. at 642. The Board found that because Mr.

Dunbar was diligent in monitoring the progress of his case, he had shown good cause

for the untimeliness of his appeal. Id. at 645. Accordingly, the Board reversed the initial

decision and remanded the case to the administrative judge to address the merits of Mr.

Dunbar’s appeal. Id.

       The facts here are analogous to those of Dunbar. In this case, Mr. Coakley

stated in his affidavit that he was deceived by his representative and that he diligently

monitored the progress of his appeal. He explained that he “thought [Mr. Lewis] was a

licensed attorney and that [he] could rely on his advice” regarding the deadline for filing

his appeal. He also stated that, like Mr. Dunbar, he made numerous telephone calls to

Mr. Lewis regarding the progress of his appeal and that he called every other day during




       1
             See also Sullivan v. Office of Pers. Mgmt., 88 M.S.P.R. 499, 502 (2001)
(deadline waived for appellant who diligently pursued his appeal but was deceived by
his attorney); Davenport v. United States Postal Serv., 97 M.S.P.R. 417, 420 (2004)
(appellant is not bound by her representative’s actions if her diligent efforts were
“thwarted, without her knowledge by her representative’s deceptions and negligence”);
Murphy v. Dep’t of the Treasury, 91 M.S.P.R. 239, 243 (2002) (client is not accountable
for his attorney’s actions when “his attorney failed to file the petition despite the
appellant’s diligent efforts to prosecute his appeal”).


04-3404                                     12
the two weeks prior to the filing of the appeal to remind Mr. Lewis of the impending

deadline. Additionally, as was the case in Dunbar, Mr. Coakley signed the appeal form

well before the June 2, 2003, deadline. Based on the facts of record at this point, Mr.

Coakley’s case would thus appear to qualify for consideration under the recognized

exception to the general rule that an employee is charged with the litigation decisions

made by his chosen counsel.

      Because the evidence submitted in connection with the petition for review was

newly discovered and was material in light of the Board’s precedent in Dunbar and

similar cases, we hold that the Board abused its discretion when it denied Mr. Coakley’s

petition for review on the ground that it did not contain new and material evidence. Of

course, the Board has not yet determined whether the allegations in Mr. Coakley’s

affidavit and that of his new counsel are true, and whether there are other factors

bearing on the timeliness issue that would lead the Board to determine that Mr. Coakley

has failed to demonstrate good cause for the three-day filing delay.        For present

purposes, however, we agree with Mr. Coakley that he has made a sufficient showing to

be entitled to have the Board consider his evidence bearing on the good cause issue.

We therefore reverse the Board’s decision denying the petition for review and remand to

the Board for further consideration of the issue of good cause for the untimely filing of

the appeal.




04-3404                                    13
