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 

05-3325 

LILLIAN B. LOGAN, 

Plaintiff-Appellant, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

 Defendant-Appellee. 

________________________ 

DECIDED: February 8, 2006 

________________________ 

Before BRYSON, GAJARSA, and DYK Circuit Judges. 

PER CURIAM. 

DECISION 

 Lillian Logan (“Ms. Logan”) appeals from the final decision of the Merit Systems 

Protection Board (“Board”) dismissing her appeal of her removal as a secretary from the 

Department of Education (“DOE”) as having been untimely filed without a showing of 

good cause for delay. Logan v. Dep’t of Educ., M.S.P.B. No. DC-0752-05-0320-I-1 

(June 17, 2005) (“Final Order”). We affirm. 
BACKGROUND 

On February 1, 2002, the DOE notified Ms. Logan that she would be removed 

from her secretary position due to excessive absences and failure to follow leave 

procedures. Ms. Logan was charged with ten such violations within the time period of 

October 1, 2001 through November 2, 2001. Ms. Logan’s record reflects that she also 

served a two-day suspension in March, 1991; a ten-day suspension in April, 1993; and 

a ninety-day suspension in June, 2001 for similar disciplinary problems. Her removal 

date was initially set for February 17, 2002 but was postponed to March 1, 2002. On 

February 6, 2002, Ms. Logan filed a grievance with the DOE concerning her removal 

pursuant to the Union’s negotiated grievance procedure. A final decision was rendered 

by the DOE on February 22, 2002, denying her grievance and sustaining her removal. 

On April 12, 2002, Ms. Logan, after consulting a union representative, filed an 

informal discrimination complaint with the Informal Dispute Resolution Center (“IDRC”) 

requesting a reasonable accommodation. Ms. Logan subsequently filed a formal 

discrimination complaint with the DOE on June 4, 2002. The DOE dismissed the 

complaint, on the ground that it was barred by the petitioner’s previous grievance, filed 

on February 6, 2002. 

Ms. Logan then appealed her dismissal to the Equal Employment Opportunity 

Commission (“EEOC”). The EEOC questioned whether a discrimination claim should be 

raised under the DOE’s grievance procedure and remanded her grievance to the DOE 

on April 23, 2003. In later EEOC proceedings, it appeared that the collective bargaining 

agreement with the DOE required that discrimination claims should be raised in the 

grievance procedure. The EEOC determined that because Ms. Logan elected to 

05-3325 2
proceed through the grievance procedure, she could not file an Equal Employment 

Opportunity complaint on the same matter. Thus, it dismissed the discrimination 

complaint as being barred by the prior grievance filing. Ms. Logan appealed this 

decision with the EEOC. The EEOC dismissed the appeal on January 24, 2005. 

Ms. Logan, on February 28, 2005, filed an appeal with the Board. The 

Administrative Judge (“AJ”) issued an initial decision on May 13, 2005 dismissing Ms. 

Logan’s petition as untimely. The AJ based the decision on 5 U.S.C. § 7121(e)(1) 

(2005), which states that an employee, covered by a negotiated grievance procedure, 

who has the right to challenge an adverse action, may do so by filing a grievance or an 

appeal to the Board, but not both. (emphasis added). An exception to this process 

exists, however, when a grievance has been filed before the effective date of removal, 

as occurred here. Thus, Ms. Logan may have filed with the Board within the Board’s 

normal 30 day filing deadline. 5 C.F.R. § 1201.22(b) (2006). The AJ also noted that 

because the complaint alleges that the adverse action was premised on a discrimination 

claim, Ms. Logan retained a limited right to seek Board review of the final grievance if 

she requested the review within 35 days of the issuance of the February 22, 2002 

grievance decision or within 30 days from her receipt of the decision by the Board, if she 

received the decision more than five days after the date of issuance. 5 C.F.R. § 

1201.154(d) (2006). The AJ’s initial decision became final when no petition for review 

was filed with the Board. 5 C.F.R. § 1201.113 (2005). 

Ms. Logan now appeals the Board’s decision to determine whether her 

complaint, although untimely filed, might be heard due to exigent circumstances. 

05-3325 3
STANDARD OF REVIEW 

This court must affirm the decision of the Board unless the decision 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) (2005); 

Kievenaar v. Office of Personnel Mgmt., 421 F.3d 1359, 1362 (Fed. Cir. 2005). This 

court has jurisdiction over “a petition to review a final order or final decision of the 

Board.” 5 U.S.C. § 7703(b)(1) (2005). 

DISCUSSION 

Under 5 C.F.R. § 1201.154(d) (2006), Ms. Logan had 35 days from the issuance 

of the February 22, 2002 decision on her grievance to file with the Board in order to be 

granted a hearing. Hutchinson v. Dep’t of Labor, 91 M.S.P.R. 31, 33 (2001). To be 

timely, Ms. Logan had to file her notice with the Board by March 29, 2002, not February 

28, 2005. Because of the substantial delay of the filing, Ms. Logan appealed to the 

Board for a determination as to whether there was a good cause for her failure to file 

timely. Alonzo v. Dep’t of the Air Force, 4 M.S.P.R. 180, 182 (1980). Ms. Logan bears 

the burden of proof to show good cause for an untimely filing. 5 C.F.R. 

§ 1201.56(a)(2)(ii) (2005). This must be established by a preponderance of the 

evidence. Id. 

There are several factors which must be considered by the Board before 

deciding whether to allow a case to be filed untimely. Alonzo, 4 M.S.P.R. at 184. 

These factors consist of, but are not limited to 

“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 

05-3325 4
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 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.” Id. 

Ms. Logan argues that because of her mental condition she was unable to 

comply with the time limits. She claims that due to the erroneous advice of her union 

representative, she filed with the wrong agency and that she should not be barred by 

the advisor’s mistakes. She also claims that even if she filed a petition with the wrong 

agency, the petition should be deemed timely nonetheless. She also argues that she 

was not notified of the proper appeal procedures. 

Ms. Logan first claimed that her depression caused her to be absent from work 

and also caused her to file her untimely appeal to the Board. She supports this 

statement with disoriented evidence of doctor’s notes throughout her briefs. 

The Board may grant a waiver for an untimely filing if the appellant can establish 

that the illness professed affected his/her ability to file. Stout v. Merit Systems 

Protection Board, 389 F.3d 1233, 1235 (Fed. Cir. 2004) citing Lacy v. Dep’t of the Navy, 

78 M.S.P.R. 434, 437 (1998). To establish that the untimely filing was caused by an 

illness, the party must: “(1) Identify the time period during which [s]he suffered from the 

illness; (2) submit medical evidence showing that [s]he suffered from the alleged illness 

during that time period; and (3) explain how the illness prevented [her] from timely filing 

[her] appeal or a request for an extension of time.” Id. See generally Andrews v. Dep’t of 

the Army, 76 M.S.P.R. 147, 151 (1997). 

Here, Ms. Logan only presents evidence she had been depressed from 1995 

through February 6, 2002, the day on which she filed the grievance. Ms. Logan, 

05-3325 5
however, fails to submit supporting evidence showing that her illness during the relevant 

time period, namely from February 22, 2002 through February 25, 2005, prevented her 

from filing within the required time period. In this case, Ms. Logan was given the 

opportunity to present the evidence necessary to warrant consideration of good cause, 

but she did not set forth any such evidence. The Board considered the medical 

information as presented by Ms. Logan and found it inadequate. 

Ms. Logan also blames her union representative’s advice to file with the IDRC on 

April 12, 2002 for causing the delay in filing her petition of discrimination with the Board. 

She argues that she acted reasonably in relying on the advice of her union 

representative in not filing with the Board. This argument also fails. Although her union 

advisor may have provided her with erroneous information, the advisor is viewed as her 

agent and as such the union advisor’s actions bind her. Massingale v. Merit Systems 

Protection Board, 736 F.2d 1521, 1523 (Fed. Cir. 1984). Therefore, she cannot rely on 

the erroneous advice of the union advisor as good cause for the Board to review an 

untimely petition. 

Furthermore, even if Ms. Logan did file the petition of discrimination with the 

Board instead of the IDRC on April 12, 2002, it was still an untimely petition. It is well 

established that if an employee timely files with the wrong agency, the filing could be 

considered timely filed with the correct agency. Miller v. Dep’t of the Army, 987 F.2d 

1552, 1556 (Fed. Cir. 1993). Under Miller, she would have had to file the petition with 

the IDRC by March 29, 2002. She filed the petition on April 12, 2002, which was 

beyond the 35 day filing period. 

05-3325 6
Lastly, Ms. Logan alleges that when the decision on her grievance dated 

February 22, 2002 was issued, there was no information regarding the appeal 

procedure presented at that time, causing her extensive delay in filing. In Lacy v. Dept’t 

of the Navy, the Board determined that because the appellant was never informed of 

the specific criteria as set forth in Andrews for securing a waiver on the Board’s time 

limit on the basis of physical or mental illness, the appellant was denied the fair 

opportunity to address the timeliness issue. 78 M.S.P.R. at 439. However, when Ms. 

Logan received her removal notice on February 1, 2002, she received information of the 

appeals process, including the name and phone number of an Employee Relations 

Team staff member that she could contact for assistance. Because she was in fact 

advised of her appropriate appeal rights, the Board denied her untimely filing. 

In light of the three year delay of Ms. Logan’s appeal and because she received 

appeal information in a timely fashion, the Board did not abuse its discretion by 

determining that Ms. Logan did not establish good cause by a preponderance of the 

evidence. The decision of the Board is affirmed. 

No costs. 

05-3325 7