Appeal from the Merit Systems Protection Board; Nos. PH03518810561, PH03308810562.
Archer, Circuit Judge, Friedman, Senior Circuit Judge, and Clevenger, Circuit Judge.
Eugene E. Baxter ("Baxter") petitions for review of the final decision of the Merit Systems Protection Board ("Board") that dismissed his two consolidated appeals contesting both his separation during a reduction-in-force ("RIF") in 1986 and the failure off the Department of the Army ("agency") to list him for two years on a reemployment priority list ("RPL"). The Board affirmed the Administrative Judge ("AJ") in dismissing his first appeal for untimeliness. The Board modified the decision on the second appeal by holding that Baxter had failed to present a cognisable claim because he had failed to demonstrate sufficient evidence of harm from the agency's error. Baxter v. Dep't of the Army, Nos. PH03518810561, PH03308810562, Opinion and Order (M.S.P.B. Sept. 5, 1990) ("Final Decision ") modifying Initial Decision (Dec. 16, 1988) ("Initial Decision "). We affirm the Board's decision that Baxter's first appeal was untimely, but vacate and remand the second appeal for discovery and hearing on the merits of Baxter's contention that he was harmed by the agency's failure to comply with 5 C.F.R. § 351.1004(a) (1988).
Baxter was separated from a career-competitive position with the Federal service effective December 5, 1986 during a RIF. Initial Decision at 1. Baxter filed a letter of complaint with the local Equal Employment Opportunity ("EEO") office on December 2. Under 5 C.F.R. § 1201.154(a)(2) (1986), when an appellant has filed a "timely formal complaint of discrimination" and there has been no action on the formal complaint within 120 days, the "appellant shall nonetheless file an appeal to the Board within a year after filing of the formal complaint." Baxter concedes that he never filed a formal complaint of discrimination.
In an appeal to the Board filed on September 12, 1988, Baxter contested both his RIF separation and the agency's failure to maintain him on the RPL. The AJ ordered Baxter to explain his apparent untimeliness. Initial Decision at 1. Furthermore, the AJ noted the failure to continue him on the agency's RPL might not be within the Board's jurisdiction standing alone. Baxter variously responded to the timeliness question by stating that his papers were stolen in a car theft in December 1986, that he had been ill, that he waited over a year for a response to his letter to the EEO, that mail arrived late, that he had family and financial problems, that he thought he had been offered another job, and that he was not aware of the possibility of, or time-limits on, his appeal. Baxter also claimed that the Board had jurisdiction over "employment of another applicant when Appellant is entitled to priority employment consideration after a RIF." To that end, Baxter cited 5 C.F.R. § 1201.3(a)(13) (1988), which states, in pertinent part:
(a) Appellate jurisdiction generally. The Board has jurisdiction over appeals from agency actions when the appeal is authorized by law, rule, or regulation. This appellate jurisdiction includes:
(13) Employment of another applicant when an appellant is entitled to priority employment consideration after reduction in force or partial or full recovery from a compensable injury.
On October 7, Baxter filed discovery requests to which the agency did not respond. On November 6, Baxter then filed a motion to compel discovery and a further request for the names and addresses of relevant agency personnel, including Major Gore, so that he could "take statements, admissions,[ ]etc. related to this appeal." Baxter also moved for extra time and submitted requests for witnesses to be heard at a hearing originally scheduled for December 12. Initial Decision at 2 n.*. On December 18, after cancellation of the hearing and before completion of discovery, the AJ dismissed the entirety of Baxter's appeal. The AJ found that Baxter had not established good cause for his untimeliness. Furthermore, the AJ held that neither 5 C.F.R. §§ 330.202 nor 1201.3 provided subject matter jurisdiction over a protest of "the agency's removal of his name from its priority reemployment list after one year." Id. at 5.
Baxter petitioned the Board far review. Baxter contended that the AJ had misread 5 C.F.R. §§ 1201.154(a)(2) (on timeliness) and 330.202 (on jurisdiction). Furthermore, he contended that the AJ had failed to "properly preside over the development of a record." Baxter stated that the Board had subject matter jurisdiction over "denial of reemployment/restoration priority rights because of the employment of another person." He cited 5 C.F.R. § 330.202 (1988), which reads:
An employee or former employee who thinks his or her reemployment priority rights under this subpart have been violated is entitled to appeal to the Merit Systems Protection Board under the provisions of the Board's regulations by presenting factual information that he or she was denied restoration rights because of the employment of another person.
The Board specifically addressed Baxter's contention that 5 C.F.R. § 1201.154(a)(2) tolled the time for filing a complaint with the Board. The Board noted that in the absence of "filing of a formal discrimination complaint" the tolling features were inoperative. Final Decision at 5. Therefore, the Board held that it must look to its standards for demonstrating that "a good reason for the delay is shown," under 5 C.F.R. § 1201.22(b) (1990). Id. at 6. The Board held that, "in light of the length of the delay," it could not excuse his actions because Baxter did not demonstrate ordinary prudence in waiting nearly two years for an EEO response. Id. at 7 (citing Alonzo v. Dep't of the Air Force, 4 M.S.P.R. 180, 184 ...