Terry N. Paine v. 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.
Donald G. Bruce, Belcourt Law Office, of Belcourt, North Dakota, argued for
petitioner.
Raymond W. Angelo, Attorney, Office of the General Counsel, United States
Merit Systems Protection Board, 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

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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 license for two years and his commercial driver’s

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license (“CDL”) permanently. On October 25, 2004, Mr. Paine received notice that the
agency was terminating 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 the 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 appeal
to the Merit Systems Protection Board (MSPB).
(2) You may file a grievance under the negotiated agreement between
Western and the International Brotherhood of Electrical Workers (IBEW).
(3) You may file a discrimination complaint, if you believe this action is
based in whole or in part on prohibited discrimination.
. . . .
You may not file under more than one of these processes (i.e., an
appeal to the MSPB, and EEO Complaint, or a grievance) on the same
matter.
. . . .
Your choice of procedure is determined by first filing.
Notice of Decision to Remove (Oct. 25, 2004).
Mr. Paine appealed his removal on December 9, 2004, by filing a formal
discrimination complaint with the agency. In his complaint, Mr. Paine alleged that, in
removing him, the agency had discriminated against him based upon alcohol
dependency and depression. Several days after filing his complaint, but before
receiving a final agency decision on it, Mr. Paine filed an appeal with the Board
contesting his removal. The regulation setting forth the time limits for individuals who
file appeals raising issues of prohibited discrimination in connection with a matter
otherwise appealable to the Board states:
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(a) Where the appellant has been subject to an action appealable
to the Board, he or she may either file a timely complaint of discrimination
with the agency or file an appeal with the Board no later than 30 days after
the effective date, if any, of the action being appealed, or 30 days after the
date of receipt of the agency’s decision on the appealable action,
whichever is later.
(b) If the appellant has filed a timely formal complaint of
discrimination with the agency:
(1) An appeal must be filed within 30 days after the appellant
receives the agency resolution or final decision on the discrimination
issue; or
(2) If the agency has not resolved the matter or issued a final
decision on the formal complaint within 120 days, the 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 holding the appeal for a short 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 his discrimination complaint
before he filed his appeal to the Board, he was subject to the time limits set forth in
section 1201.154(b). In an initial discussion with the administrative judge (“AJ”) to
whom the case was assigned, the parties agreed that 120 days had not passed since
the filing of the complaint. During the discussion, Mr. Paine’s attorney withdrew the
appeal. In an initial decision, the AJ dismissed the Board appeal as voluntarily
withdrawn and without 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 Decision, Jan. 20, 2005, became the Board’s final decision 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 delivery.
Mr. Paine’s wife received and signed for the final agency decision at Mr. Paine’s
residence of record in North Dakota on April 8, 2005. Mrs. Paine forwarded the
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unopened package containing the final agency decision to Mr. Paine in northern
Minnesota, where he was working at the time. Mr. Paine received the package five to
seven days later. Mr. Paine’s attorney received the final agency decision on April 12,
2005.
On June 13, 2005, Mr. Paine filed a second appeal with the Board contesting the
agency action removing him from his Lineman position. The AJ dismissed the second
appeal as untimely filed because it was not filed within thirty days after receipt of the
final agency decision as required by 5 C.F.R. § 1201.154(b)(1). Paine v. Dep’t of
Energy, No. DE0752050378-I-1 (M.S.P.B. July 12, 2005) (“Initial Decision, July 12,
2005”). The AJ found that the appeal should have been filed no later than May 12,
2005 (i.e., thirty days after Mr. Paine’s attorney received the final agency decision on
April 12, 2005).
The Initial Decision, July 12, 2005, became the final decision of the Board when
the Board determined that Mr. Paine’s petition for review failed to meet the criteria for
review set forth in 5 C.F.R. § 1201.115(d). Final Decision. 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.
Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
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5 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 formal complaint of discrimination with
the agency:
(1) An appeal must be filed within 30 days after the appellant
receives the agency resolution or final decision on the discrimination
issue; or
(2) If the agency has not resolved the matter or issued a final
decision on the formal complaint within 120 days, the appellant 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 appeal, Mr. Paine argues that subsection (b)(1) does not
apply to his appeal, and that his appeal was timely filed under subsection (b)(2). Mr.
Paine urges that section 1201.154(b) must be read in the disjunctive, relying on Van
Wersch v. Department of Health and Human Services, 197 F.3d 1144, 1151 (Fed. Cir.
1999), for the proposition that the word “or” in the regulation is disjunctive. According to
Mr. Paine, section 1201.154(b) offers a choice of two alternatives. Mr. Paine urges that
the first alternative, under subsection (b)(1), is to file an appeal within thirty days after
receipt of a final decision. Mr. Paine urges that the second alternative, under
subsection (b)(2), which is available only to an appellant who receives a final board
decision more than 120 days after his formal complaint was filed, is to file an appeal at
any time after the expiration of the 120 calendar days. Mr. Paine argues that “because
the Agency missed the 120 day deadline for issuing its final decision. . . . Petitioner’s
time frame to file his Petition with the Board was expanded to ‘any time after the
expiration of 120 calendar days,’” and thus his appeal was timely filed. At oral
argument, Mr. Paine’s attorney conceded that if subsection (b)(1) applies his appeal
was not timely because it did not meet the thirty-day time limit imposed by that
subsection.
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The Board argues that the “or” in section 1201.154(b) does not indicate that the
regulation is intended to be read in the disjunctive. The Board urges that subsection
(b)(1) always requires an appellant to appeal within thirty days of receipt of a final
decision, that subsection (b)(2) provides that the right to appeal does not vest until
either the agency issues a final decision on the discrimination complaint or 120 days
elapse from the date the discrimination complaint was filed, and that subsection (b)(2) is
no longer applicable once the agency issues a final decision. The Board further notes
that subsection (b)(2) does not state that the final decision must be received within 120
days. Rather, the regulation states that “[i]f the agency has not resolved the matter or
issued a final decision on the formal complaint within 120 days” the employee 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 construction apply when interpreting an
agency regulation. When construing a regulation or statute, it is
appropriate first to examine the regulatory language itself to determine its
plain meaning. . . . If the regulatory language is clear and unambiguous,
the inquiry ends with the plain meaning. However, if the regulation is
silent or ambiguous, the court then gives deference to the agency’s own
interpretations.
Roberto v. Dep’t of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (internal citations
omitted). The regulation clearly states that “[i]f the agency has not resolved the matter
or issued a final decision on the formal complaint within 120 days” the employee may
file a Board appeal. 5 C.F.R. § 1201.154(b)(2) (emphasis added). Webster’s Third
New International Dictionary 1201 (1986) defines “issue” as “the act of officially putting
forth or getting out or printing (as new currency or postage stamps) or making available
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or distributing (as supplies or material) or giving out or granting (as licenses) or
proclaiming or promulgating (as a written order or directive).”
Because the regulatory language is clear 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 its final decision in the mail, the agency had announced the
decision in writing and had put it forth for distribution to the effected parties. Issuance of
a decision must always precede receipt of that decision; nowhere does subsection
(b)(2) require that an appellant receive a final decision within 120 days. No artfully
worded argument can change the plain meaning of “issue” to mean “receive.”
CONCLUSION
Because the agency issued its final decision 119 days after Mr. Paine filed his
complaint, subsection (b)(2) does not apply in his case. Thus, we are not presented
with the question of whether, in a situation where subsection (b)(2) applies, it provides
an alternative filing period following a final agency decision on a discrimination
complaint. Because Mr. Paine had thirty days to file his appeal, and because he did not
show good cause for filing his appeal later than the allowed thirty days, the Board did
not err in holding the appeal untimely.
For the foregoing reasons, the final decision of the Board is affirmed.
AFFIRMED
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