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.

__________ ________________ DECI DED: 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”) dismi ssing 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 t he 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 persist ent stance that Vann had no right of appeal to the board, we reverse and remand

.Congress has expres sly limited the scope of our review in an appeal from the board. Specifically, we must affirm the board’s dec ision unle s s it was “( 1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having b een followed; or (3) unsupported by subs tantial evidence.” 5 U.S.C. § 7703(c) (2000). “Under the substantial evidenc e st andard of r e view, a court will not overturn an agency deci sion if it is supported by ‘such relevant evidenc e as a reasonable m i nd might accept as adequate to support a conclusion.’” Jacobs v. Dep’t of Justice , 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Conso l . Edison Co. of N.Y. v. NLRB , 305 U.S. 197, 229 (1938)). The burden upon t he petitioner of establishing any deficiencies in the administrative decis ion is a heavy one, because there is a presumption that administrative actions are correct and that government officials ac t in good faith in discharging their duties. Sander s 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 pr ocedures for resolution of disputes over disciplinary acti ons against postal employees. See Horner v. Schuck , 843 F.2d 1368, 1371- 72 (Fed. Cir. 1988). O ne procedure inv o lves an appeal to th e board, 5 U. S.C. § 7701 et seq .; the other in volves the filin g of a g r ievance p u rsuant t o the grievance-arbitration pr ocedure of an appl icable collectiv e bar gaining agreement, 39 U.S.C. § 1206(b). The parties agree that not all federal employees have the right to appeal adv erse employment decisions to the board. T h is is a right conferred by statute

04-3046 2to certain categories of individuals, one such category being those Postal Service employees who are “prefe rence eligible.” Pursuant to 5 U.S.C. § 7513( a), a federal agency may remove an employee from service “only for such cause as will pro m ot e the efficiency of the service.” Under subsection (d) of that same law, an employ ee who is r e moved from service “is entitled to appeal to the Merit Systems Protection Boar d.” “Employee” is defined under 5 U.S.C. § 7511(a)(1)(B) to include “a preference elig ible in the except ed service who ha s completed 1 year of c u rrent continuous serv ice in the s a me or sim ilar pos i tion s . . . (ii) in the United States Postal Servic e. . . .” “Preference elig ib le” employees are defined at 5 U.S.C. § 2108(3) as, inter alia , “disabled v e terans,” i.e., those individuals who “served on active duty in the armed forces, [ have] been separated t herefrom under honorable conditions, and [hav e] establis hed the pr esent existence of a servic e-connected disab ility 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 th is s t atute leads to only one logic a l interpretation – a veteran does not have to be receiving compensation to be defined a s a “disabled veteran” accordi ng to 5 U.S.C. § 2108(2). An appeal to the boar d must normally be filed within 30 days after the effective date of the action being appealed or within 30 days of receip t of the agency’s decis ion, whichever is later. 5 C.F.R. § 1201.22(b) ( 2000). In its discretion, the board may grant a waiv er 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

excus able under the circumstanc es and that he exercis ed due diligence in attempting to

04-3046 3meet the fili ng deadline. Zamot v. Merit Sys. Prot. Bd. , 332 F.3d 1374, 13 77 (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 exc u sable delay. Mendoza v

. Merit Sys. Prot. Bd. , 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). F a ctors that determine good caus e include “the length of t he delay; whether appellant was notified of the time limit or was otherwis e aware of it; the existence of circumstances beyond the control of the appella nt which affected his ab ility to comply with the time limits; the degree to which negligence by t he appellant has been shown to be present or absent; circumstances which show that any neglec t involved is excusable neglect; a showin g of unavoidable casualty or misfor tune; and the extent and natur e of the prejudice to the agency which would r e sult from wa iver 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 pos ition as a letter carrier effective November 26 , 1999. The agency’s notice letter informed him of his right to file a grievanc e under the negotiated grievance procedure, i. e., arbitration, but it did not include any information regarding his right to appeal t o the board. Vann claims that around this time he informed the agency that he was a “prefer ence e lig ible” vet e ran, but the agenc y dismissed his claims and ins i sted his only rec ourse was through the arbitration process

. Vann’s claim for “preference eligible” stat us 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 s e rv ice-connected but is less than 10% disabling and compensa tion is not payable. SKIN CONDITION There is entitlement to necessary tr eatment by the V A for any serviceconnected disab ility. . . .

04-3046 4By its own admission, the agency was in possessi on of this letter as early as November 2000 and aware that Vann had “ a service-c onnected disability.” The agenc y , however , determined that Vann was not “preferenc e eligible” because he was not receiving compensation for his disab ility. 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 hav e jurisdiction over his appeal. . . .” Agency’s Motion for Dis missal Based on Jurisdiction , filed May 2, 2003. As discuss ed abov e, this is a clear misinterpret ation 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-connec ted dis ability meets the definition of ‘disabled v e teran,’ any pers on who has been determined to ha v e any k i nd of serviceconnected disab ility is also a ‘dis abled veteran, ’ wh ether or not th e di sa bility is sufficient to merit compensation.” Vann v

. United Stat es Postal Serv. , No. PH-0752-03-0205-I-1 (M.S.P.B. July 18, 2003) (“ Initial Decis i on”). Vann challenged the adverse action through the negotiated griev anc e procedure. After a hearing before an arbitr ator, his grievance was denied effecting his r e moval on August 4, 2000. At that point, Vann s h ould hav e filed an appeal to the board by September 5, 2000. He waited, howev er, until March 23, 2003. Throughout the proceedings the agency persisted in its uns upported argument that Vann was not “preference eligible” and that he had no ri ght to appeal to the board. The board determined that, while the agency did not provi de Vann with notice of his right to appeal to the boar d, Vann should have been awar e that he had appea l rights. F u rther, the

04-3046 5board found that a pr udent pers on in Vann’s situatio n would not have relied on the agency’s opinion regarding his en titlement to appeal to t he board, but inst ead would have contacted the board himself. Accordin gly, the board found t hat Vann failed to show good cause to waive his unt imely filin g. Considerin g the first factor to excuse an un timely filing , the length of the delay, we agree with the board that the 31 month period was excess ive. 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 in sisted he had no right of appeal. The conduct of the agency – misinter preting a statute pl ain on its face and persisting in that erroneous interpretation for three years – is suc h that Vann’s delayed filing shou ld be e x cus ed un der th e circumst ances. We cannot agree with the board that a reasonable person would i gnore the legal pronouncement by the agency and persist in an appeal the agency had adamantly cl aimed 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 whet her to challenge th e 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 caus e” for the employee’ s untimely appeal wher e the agency was not aware at the time that the employee enjoy ed a limited right of appeal to the board). Both Krizman and Cla rk are readily distinguishable. In both cases the agency passively omitted information relevant to the employ ee’s course of appeal. In neither c a se did the

04-3046 6agency affirmatively misrepresent to the empl oyee that he h ad no such right of appe al under existing law. When weighing the extent and nature of the prejudice to the agency whic h wou l d result from the waiver of the time limit, we observe that the agen cy’s prejudice is self inflicted: it relied on an erroneous interpre tation of 5 U.S.C. § 2108 that influenced Vann not to seek board review in the first in stance. The presumpti on that administrative actions are correct and that government offi cials act in good faith in discharging their duties, see Sanders , 801 F.2d at 1331, has been s u fficiently overcome to require consideration of this case on the merits.

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