                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                      2007-3228



                                 ROBERT L. JONES,

                                                          Petitioner,


                                          v.

                      MERIT SYSTEMS PROTECTION BOARD,

                                                          Respondent.

      Robert L. Jones, of Milwaukee, Wisconsin, pro se.

      Joyce G. Friedman, Attorney, Office of the General Counsel, Merit Systems
Protection Board, of Washington, DC, for respondent. With her on the brief were B. Chad
Bungard, General Counsel, and Rosa M. Koppel, Deputy General Counsel.

Appealed from: United States Merit Systems Protection Board
                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                        2007-3228


                                  ROBERT L. JONES,

                                                 Petitioner,

                                            v.

                       MERIT SYSTEMS PROTECTION BOARD,

                                                 Respondent.


                           ____________________________

                            DECIDED: November 13, 2007
                           ____________________________


Before LOURIE, GAJARSA, and PROST, Circuit Judges.

LOURIE, Circuit Judge.

                                       DECISION

       Robert L. Jones appeals from the decision of the Merit Systems Protection Board

(“the Board”) dismissing as untimely his appeal from the denial of his application for a

disability retirement annuity.   Jones v. Office of Pers. Mgmt., CH-844E-06-0636-I-1

(M.S.P.B. May 2, 2007) (initial decision dated Oct. 13, 2006).      Because the Board

abused its discretion in reaching its decision, we reverse.

                                     BACKGROUND

        Mr. Jones was previously employed as a laundry worker for the Department of

Veterans Affairs (“DVA”). He applied to the Office of Personnel Management (“OPM”)
for a disability retirement annuity under the Federal Employees’ Retirement System

(“FERS”) based on degenerative disc disease of the spine, tears in both shoulders,

lumbar discectomy, and lumbar fusion and posterior fusion surgeries. Jones stated that

he became disabled on August 27, 2002. He later declined the offer of a modified

laundry worker position that was intended to accommodate his work-related physical

disabilities. On May 5, 2005, DVA found Jones “physically disqualified” and proposed to

remove him from his position, and, on May 31, 2005, DVA removed him from his

position.   Independently, the Office of Workers’ Compensation Programs (“OWCP”)

found that Jones’s reasons for declining the alternative position were not valid.

       OPM denied Jones’s disability application on January 13, 2006. He requested

reconsideration of OPM’s initial decision on January 26, 2006, and provided a Residual

Functional Capacity Questionnaire from a doctor indicating his medical restrictions in

sitting, standing, walking, lifting/carrying, bending, and twisting. In its April 26, 2006,

reconsideration opinion, OPM again found that Jones had failed to establish that DVA

had been unable to make reasonable accommodation for his medical conditions.

       OPM’s reconsideration opinion informed Jones that he had thirty calendar days

from the date of the decision or receipt of the decision, whichever was later, to appeal

the decision to the Board. Jones states that he had difficulty understanding what his

obligations were in order to perfect his appeal and so sought the assistance of counsel.

He required approximately one and a half weeks to locate a lawyer, leaving about two

and a half weeks until the appeal was due. Jones left the relevant documents with the

lawyer’s assistant, and then contacted the assistant about a week before the deadline

when he had not heard back from the lawyer. The assistant advised that Jones contact




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OPM to obtain additional information because OPM had not been responsive to

requests from the lawyer’s office. Jones accordingly contacted OPM.

       In the meantime, Jones’s sister accompanied him out of state to visit his mother

who had pancreatic cancer. He himself was also scheduled to have cervical fusion

surgery on June 20, 2006. OPM returned Jones’s call while he was out of state and

informed him that he should contact the Board regarding his inquiry.       When Jones

returned home, he contacted the Board and was informed that nothing could be done

until his appeal was filed. He then contacted the lawyer’s office and informed them that

the appeal needed to be filed by fax that day. The next day, June 29, 2006, upon

learning that the appeal had still not been filed, Jones retrieved his documents from the

lawyer’s office, completed the appeal form, and faxed it to the Board that same day.

Allowing for mailing time, Jones’s appeal was filed approximately one month late.

       On June 30, 2006, the administrative judge (“AJ”) issued an acknowledgement

order stating that Jones’s appeal appeared to be untimely and giving him an opportunity

to demonstrate good cause for the delay in filing. In response, Jones filed a letter on

July 6, 2006, detailing the circumstances described above and further stating that

serious financial difficulties contributed to the delay as well. On July 10, 2006, OPM

moved to dismiss the appeal on the basis that no good cause had been shown for the

delay. In an initial decision issued without a hearing on October 13, 2006, the AJ

concluded that Jones was aware of the deadline for appeal and had not been

sufficiently diligent in monitoring his lawyer’s progress to be able to demonstrate good

cause for the delay in filing.




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       On October 24, 2006, Jones filed a timely appeal of the initial decision to the full

Board. In his appeal, Jones stated more specifically that the lawyer he had contacted

had told him before he left that his appeal would be filed before the deadline, and that

he relied on that assurance. He also noted that at the time he went to visit his mother,

she was three weeks removed from a heart attack and doctors had only given her thirty

to sixty days to live. With his appeal, Jones included a copy of a letter from the Office of

Disability Adjudication and Review of the Social Security Administration, dated October

17, 2006, informing him of a fully favorable decision on his application for Social

Security disability benefits.

        On May 2, 2007, the Board issued a split decision denying Jones’s petition for

review because it found no new, previously unavailable evidence or error of law by the

AJ. See 5 C.F.R. § 1201.115. The AJ’s initial decision thus became the final decision

of the Board. See 5 C.F.R. § 1201.113. Jones timely appealed to this court, and we

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      DISCUSSION

       On appeal, Jones argues that the following factors demonstrate reasonable and

prudent efforts on his part in filing his appeal and sufficient circumstances to

demonstrate good cause for the delay in its filing: (1) his limited understanding of the

legal processes; (2) his diligent efforts to find and retain an attorney for assistance; (3)

the assurances he received from his attorney that his appeal would be filed on time; (4)

his serious health issues and surgery; (5) his mother’s terminal illness; (6) his financial

difficulties; (7) his follow-up to ensure that the appeal had been filed; and (8) his filing

the appeal himself immediately upon learning that it had not been filed by his attorney.




2007-3228                                -4-
The government responds that the AJ fully considered all of the factors relevant to

Jones’s delay, but in her discretion concluded that he had not demonstrated sufficient

diligence to overcome the general rule that an appellant is responsible for the mistakes

of his chosen legal representative. The government also argues that this court should

not consider Jones’s more specific statement to the Board that his lawyer told him the

appeal would be filed on time because it was not made in his filing before the AJ.

      The scope of our review in an appeal from a decision of the Board is limited. 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); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d

1307, 1311 (Fed. Cir. 2003).

      We conclude that the Board abused its discretion in finding Jones’s appeal to be

untimely. This court has approved the use of broad equitable principles of justice and

good conscience in determinations of good cause in the filing of an untimely appeal.

See Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1582 (Fed. Cir. 1994). We have also

stated that “[d]elay is excusable where, under the circumstances, a petitioner exercises

diligence or ordinary prudence.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653

(Fed. Cir. 1992) (en banc) (emphasis added). Some of the specific factors this court

has found useful to consider are:     “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




2007-3228                              -5-
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, 29 F.3d

at 1582 (Fed. Cir. 2006).

       The facts of this case fit the criteria for a finding of good cause to waive the time

limit for filing. Under the circumstances of this case, Jones exercised ordinary prudence

in the selection and supervision of his attorney and the pursuance of his appeal. The

one-month delay in the filing of Jones’s appeal was more than minimal, but certainly far

short of egregious, especially in light of the fact that the agency has failed to argue any

prejudice it would suffer if Jones were granted a waiver of the time limit. No negligence

appears to have been involved here, except perhaps that of his lawyer, a matter about

which we express no opinion.       Furthermore, the seriousness and timing of Jones’s

mother’s terminal illness as well as the need for him to continue treatment for his own

serious medical problems are certainly circumstances beyond his control that

undoubtedly affected his ability to supervise his attorney’s compliance with the filing

deadline. And it was reasonable for Jones to rely upon the assurances of his attorney

one week prior to the deadline that the matter was being pursued and that his appeal

would be filed on time. Jones also acted expeditiously to file his appeal upon learning

that it had not been filed by his attorney, despite his recent surgery. Thus, while the

Board has discretion in determining whether there is good cause for delay, the

principles of justice and good conscience dictate that the failure to find good cause for

the delay under the circumstances of this case was clearly unreasonable.




2007-3228                               -6-
      Because the Board abused its discretion in concluding there was no good cause

for delay in the filing of Jones’s appeal, we reverse its decision and remand for further

proceedings.




2007-3228                              -7-
