News from the Federal Circuit: On February 18, 2015, a panel of the U.S. Court of Appeals for the Federal Circuit issued a precedential split decision in Herring v. Merit Systems Protection Board, ___ F.3d ___, No. 2013-3170. The majority found ‘good cause’ to excuse Ms. Herring’s untimely filing of her Merit Systems Protection Board (MSPB) appeal, based on delays by Ms. Herring’s law firm.
Ms. Herring was a federal employee who was removed. Ms. Herring applied for disability retirement, but her application was denied by the Office of Personnel Management (OPM); OPM then denied Ms. Herring’s request for reconsideration. Ms. Herring had 30 days to appeal OPM’s reconsideration decision to the MSPB. Ms. Herring timely consulted an attorney. Ms. Herring signed a retainer agreement and a retainer was paid 6 days before the MSPB appeal deadline. The law firm’s staff told Ms. Herring that she had taken all necessary steps to proceed. The law firm staff then failed to notify the attorney that the retainer was set up until 10 days after the appeal deadline; the attorney then immediately filed the appeal. The MSPB administrative judge dismissed the appeal as untimely, which was upheld by the MSPB on petition for review. Ms. Herring then appealed to the Federal Circuit.
Writing for the majority, Judge Wallach held that ‘good cause’ existed to excuse Ms. Herring’s untimely appeal filing. Under prior caselaw, a represented appellant is responsible for monitoring their attorney’s handling of their case, and is liable for their attorney’s errors. Judge Wallach cited to Ms. Herring’s medical conditions and to the specific representations by Ms. Herring’s law firm as showing that Ms. Herring had made reasonable efforts to follow up on her attorneys’ processing of her appeal. The court held that the conduct of Ms. Herring’s firm was “misleading and deceptive in effect.” Because Ms. Herring had been “misled and lulled” by her law firm, because the overall delay was brief, because Ms. Herring’s attorney filed the appeal immediately once the issue became known, and because prior precedent calls for flexibility on filing deadlines in retirement appeals, the majority found that good cause existed to excuse the untimely appeal. The majority rejected a line of prior MSPB decisions which had held that an appellant can never show ‘good cause’ for untimely filings caused by their attorneys’ negligence, even where the appellant had shown ordinary prudence and where other mitigating factors applied.
In dissent, Judge Reyna opined that this was “an unremarkable case” which did not warrant overturning the MSPB’s dismissal below.