## United States Court of Appeals for the Federal Circuit

2006-3165

TERRY N. PAINE, Petitioner,

v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

Donald G. Bruce , Belcourt Law Office, of Belcourt, North Dakota, argued for petitioner. Raymond W. Angelo , Attorney, Office of the G eneral Counsel, United States Merit Systems Protection Boar d, of Washington D.C., argued for respondent. With him on the brief were Martha B. Schneider , General Counsel, and Rosa Koppel , Deputy General Counsel. Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2006-3165

TERRY N. PAINE, Petitioner,

v.
MERIT SYSTEMS PROTECTION BOARD, Respondent.

__________________________ DECIDED: November 7, 2006

__________________________

Before MICHEL, Chief Judge , LOURIE, and SCHALL, Circuit Judges

. SCHALL, Circuit Judge

. Terry N. Paine petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that dismissed as untimely filed his appeal of his removal by the Department of Energy (“agency”). Paine v. Dep’t of Energy , No. DE0752050378-I-1 (M.S.P.B. Dec. 14, 2005) (“ Final Decision ”). We affirm. DISCUSSION
I. Mr. Paine worked as a Lineman for the agency. On August 7, 2004, he was found guilty for the second time of driving while under the influence of alcohol, which caused him to lose his state driver’s lice nse for two years and his commercial driver’slicens e (“CDL”) permanently. On October 25, 2004, Mr. Paine received notice that the agency was terminati ng his employment due to his inability to possess a CDL, a condition of his employment as a Lineman . The letter set forth three avenues for appealing t he action: (1) You may challenge an adverse action based on factors unrelated to misconduct under 5 U.S.C. §§ 7512, 7513, and 7701, through an appea l to the Merit Systems Protection Board (MSPB). (2) You may file a grievance under the n egotiated agreement between Western and the International Brot her hood of Electrical Workers (IBEW). (3) You may file a discrimination comp lain t, if you believ e this action is based in whole or in part on prohibited discrimination.

. . . . You may not file under more than one of these proces ses (i.e., an appea l to the MSPB, and EEO Compla int, or a grievance) on the same matter

.

. . . . Your choic e of procedure is determined by first filing. Notice of Decision to Remove (Oct. 25, 2004). Mr. Paine appeale d his removal on De cember 9, 2004, by filing a formal discrimination complaint with the agency. In his complaint, Mr. P a ine alleged that, in removing him, the agency had discr imi nated against him based upon alcohol depend enc y and de pression. Several days a fter filing h i s complaint , but before receiving a final agency decis ion on it, Mr. Paine filed an appeal wit h the Board contesting his removal. The regulation setti ng forth the time limits for individuals who file appeals raising issues of prohibited discrim ination in connection with a matter otherwise appealable t o the Board states:

2006-3165 2(a) Where the appellant has been subject to an ac tion appealable to the Board, he or she may either file a timely compla int of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if an y, of the action being appeal e d , or 30 days after the date of receipt of the agency ’ s decision on the appealable action, which e ver is later. (b) If the appellant has filed a timely formal complaint of discrimination with the agency: (1) An appeal must be filed within 3 0 days after the appellan t receives the agency resolution or fi nal decision on the discrimination issue; or (2) If the agency has not resolved the matter or i ssued a final decision on the formal complaint wit hin 120 days, t he appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. (c) If the appellant files an appeal prematurely under this subpart, the judge will dismiss the appeal without prejudice to its later refiling under § 1201.22 of this part. If holdi ng the appeal f o r a shor t time would allow it to become timely, the judge may hold the appeal rather than dismiss it. 5 C.F.R. § 1201.154 (2006). Because Mr. Paine filed hi s discrimination complaint before he filed his appeal to t he Board, he was subject to t he time limits set forth in section 1201.154(b). In an initial discussion with the adm inistrative judge (“AJ”) to whom the case was assigne d, the parties agreed that 120 days had not passed sinc e the filing of the complaint. During the dis c ussion, M r . Pain e’s attorney withdrew the appeal. In an initial decis i on, the AJ dismissed the B oard appeal as voluntarily withdrawn and witho u t prejudice to timely refiling. Paine v. Dep’t of Energy , No. DE0752050378-I-1 (M.S.P.B . Jan. 20, 2005) (“ Initial Decision, Jan. 20, 2005 ”). The Initial Dec i sion, Jan. 20, 2005 , became the Board’s final dec ision when neither party filed a petition for review. See 5 C.F.R. § 1201.113 (2006). On April 7, 2005, the agency mailed a final agency decision on the discrimination complaint to Mr. Paine and Mr. Paine’s attorney via Federal Express overnight deliver y. Mr. Paine’s wife received and signed for t he final agency decision at Mr. Paine’s residence of record i n North Dakota on April 8, 2005. Mrs . Paine forwarded the

2006-3165 3unopened package c ontaining the final agency decision to Mr. Paine in northern Minnesota, where he was working at the time. Mr. P a ine receiv ed the pac kage five to seven day s later. Mr. Paine’s attorney re ceived the final agency decision on April 12,
2005. On June 13, 2005, Mr. Paine filed a sec ond appeal wit h the Boar d contesting the agency action removing him from his Lineman position. The AJ dismissed the second appeal as untimely filed bec aus e it was not filed within thirty days after receipt of t he final agenc y decis ion as required by 5 C.F.R. § 1201.154(b)(1). P a i ne v. D e p’ t of Energy , No. DE0752050378-I-1 (M.S.P.B. July 12, 2005) (“ Initial Decis i o n , July 12,
2005 ”). The AJ found that t he appeal should have been file d no later than May 12, 2005 (i.e., thirty days after Mr. P a ine’s atto rney receiv ed the final agency decision on April 12, 2005). The Initia l Decis i on, J u ly 12, 200 5 , became the final decision of the Board when the Board determined that Mr. P a ine’s petition for review failed t o meet the criteria for review set forth in 5 C.F.R. § 1201.115(d). Fin a l Dec i sion . This appeal followed. We have jurisdiction pursuant to 28 U

. S.C. § 1295(a)(9).
II. Our scope of review in an appeal from a decision of the Board is limited. Specifica lly , we must affirm the Board’s d e ci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by subst antia l evidence. 5 U.S. C. § 7703(c) (2000); Kewley v. Dep’t o f Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998).

2006-3165 45 C.F.R. § 1201.154( b) governs the time limit for the appeal in this case. It
states: If the appellant has filed a timely fo rmal complaint of discrimination with the agency: (1) An appeal must be filed within 3 0 days after the appellan t receives the agency resolution or fi nal decision on the discrimination issue; or (2) If the agency has not resolved the matter or i ssued a final decision on the formal complaint wit hin 120 days, t he app ellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. 5 C.F.R. § 1201.154(b). On app eal, Mr. Paine argues that subsection (b)(1) does not apply to his appeal, and t hat his appeal was timely filed u nder subsection (b)(2). Mr. Paine urges that section 120 1.154(b) must be read in t he disjunctive, rely ing on Van Wersch v. Department of Health and Human Services , 197 F.3d 1144, 1151 (Fed. Cir. 1999), for the proposit ion that the word “or” in the regulation is disjunctive. According to Mr. Paine, section 1201.154(b) offers a choice of two alternative s . Mr. Paine urges that the first alternative, under subsection (b)(1), is to file an appeal wit hin thirty days after receipt of a final decision. Mr. Paine urges that the second alternative, under subsection (b)(2), which is available only t o an appellant who receives a final board decision m o re than 120 days after his formal comp laint was filed, is to file an appeal at any time after the expiration of the 120 calendar days. Mr. Paine ar gues that “because the Agency missed the 120 day deadline for issui ng its final decision. . . . Petitioner’s time frame to file his Petition with the Board was e x panded t o ‘ any time after the expiration of 120 calendar day s ,’” and thus his appeal was ti mely filed. At oral argument, Mr. Paine’s attorney conceded that if subsection (b)(1) applies his appea l was not timely because it did not meet t he thirty-day time limit imposed by that subsection.

2006-3165 5The Board argues that the “o r” in section 1201.154(b) does not indicate that the regulation is intended to be r ead in the disjunctive. T he Board urges that subsection (b)(1) always requires an appellant to appeal wit hin thirty days of receipt of a final decision, that subsec tion (b)(2) provides that the right to appeal does not vest until either the agency iss ues a final decis ion on the discrimination c o mplaint or 120 day s elapse from the date the discrim ination com p laint was filed, and that subsection (b)(2) is no longer applicable once t he agency iss u es a final decisi on. T he Board further notes that subsection (b)(2) does not stat e that the final dec ision must be received within 1 2 0 days. Rather, the regulation states that “[i]f the agency has not resolved the matter or issued a final dec ision on the formal complaint wit hin 120 days” the em ployee may file a Board appeal. 5 C.F.R. § 1201.154(b)(2) (emphasis added). We see no error in the AJ’s application of the thirty day time limit in subsection (b)(1) to Mr. Paine. We have recently noted that: The rules of statutory construc tion apply when interpreting an agency regulation. When construing a regulation or statute, it i s appropriate first to examine the regul atory language itself to determine its plain meaning. . . . If the regulatory language is clear and unambiguous, the inquiry ends with the plain meaning. Howev e r, if the regulation is silent or ambiguous, the court then gives deference t o the a gency’s own interpretations. Roberto v. Dep’t of the Navy , 440 F.3d 1341, 1350 (Fed. Cir. 2006) (internal c i tation s omitted). The regulation clear ly states that “[i]f the agency has not resolved the matter

or issued a final dec is ion on the formal complaint within 120 days ” the employee may file a Boar d appeal. 5 C.F.R. § 1201.154(b)(2) (emphasis added). Webster’s T h ir d New International Dict i onary 1201 (1986) defines “iss ue” as “the act of officially putting forth or getting out or printing (as new c u rr ency or post age stamps) or making available

2006-3165 6or distributing (as s u pplies or material) or giving out or granting (as licenses) or proclaiming or promulgating (as a written order or directi v e).” Because t he regulatory language is c l ear and unambiguous, our inquiry ends here. The AJ effectively found that the agency mailed its final decision 119 days after receipt of Mr. Paine’s complaint. The act of mailing fits within the plain meaning of the word “issue.” By placing it s final decision in the mail , the agency had announced the decision in writing and had put it forth for distribution to t he effected parties. Issuance of a decision must always precede receipt of that decision; nowher e does subsection (b)(2) require that an appellant receive a final dec ision within 120 days. No artfully worded argument can change the plain meani ng of “issue” to mean “receive.” CONCLUS ION Because t he agency issued its final dec is ion 119 days after Mr. Paine filed his complaint, subsection (b)(2) does not apply in his cas e . Thus, we are not presented with the question of whether, in a situation where subsection (b)(2) applies, it provide s an alterna t ive filin g period followin g a final ag enc y decision on a dis c rimination complaint. Because Mr. Paine had thirty da ys to file his appeal, and because he did n o t show g ood cause for filing his a ppeal later than the a llo wed thirt y days, the Board d i d not err in holding the appeal untimely. For the foregoing reasons, the fi nal decis ion of the Board is affirmed.

AFFIRMED

2006-3165 7