Appealed from: Merit Systems Protection Board
Before NEWMAN, Circuit Judge, NICHOLS, Senior Circuit Judge, BISSELL, Circuit Judge.
NICHOLS, Senior Circuit Judge.
This is an appeal taken pro se from the decision of the Merit Systems Protection Board (board of MSPB), docket No. SE07528410177, which dismissed the appeal before it as untimely filed. Edgerton had sought relief against a resignation from the federal civil service, alleged by him to have been coerced, an allegation denied by the agency. He excused his undoubted lateness on the ground that the agency had never properly informed him of his appeal rights; but the board held by its presiding official that he was not sufficiently diligent after learning from third parties where and how to appeal. We hold, however, that the agency knew Edgerton's object was to obtain, not reinstatement and back pay, but early retirement, and under those circumstances advice to appeal to the MSPB would have been misleading and incorrect. We therefore affirm, but without prejudice to whatever right Edgerton enjoys to apply to the Office of Personnel Management (OPM) for an early retirement annuity under 5 U.S.C. § 8336(d)(1) as one who was separated involuntarily, as he claims, and who satisfies length of service and age requirements, if he does.
Edgerton was born April 17, 1925, and thus was 56 years old on the effective date of the allegedly coerced resignation, March 22, 1982. On that date he had bad been in United States Government service from February 27, 1960, over 22 years counting military service. These dates are not fact findings by the court, though based on a notification of personnel action which is in the record and whose authenticity is not denied. They are referred to as explaining Edgerton's belief that he was entitled to early retirement, with obvious reference to the age and length of service dates the above statute requires. Edgerton was employed by the Department of Housing and Urban Development (HUD) as a Field Mortgagee Representative (GS-13), with duty station at Seattle, Washington. We do not undertake to pass on the sufficiency of the alleged coercion by which supposedly, the resignation was obtained. Apparently the circumstances revolved around an injury Edgerton suffered, and his inability to obtain the sick leave he believed to be his right. There was a letter of reprimand and charges that he was drunk on duty. The agency denied there was any coercion whatever, but finding the truth is not our function as an appellate court.
According to the MSPB findings, as early as April 5, 1982, Edgerton advised the agency by mailgram that he wanted "to rescind his resignation and instead be processed for early retirement." As we will show in discussing the law, this was implicit advice that he considered the resignation coerced, since by the statutory text unless it was involuntary, early retirement was not available. If the agency needed an explicit statement as to the alleged coercion, it was given August 11, 1983. By the findings:
An attorney representing appellant wrote to respondent outlining appellant's continued desire for a retirement annuity and specifically stating he had been forced to resign.
It is evident, therefore, that early retirement was present in his mind as the preferred resolution of his problem. For one who thinks he has yielded to coercion by resigning, and who satisfies the age and length of service requirements, it is obvious that early retirement will often be the preferred alternative. It will avoid having to exercise one's rights by reinstatement, returning to the work environment from which one departed by the emphatic wish of those in charge. To do this would require more intestinal fortitude than many of us possess, even when the law will back us up. For the agency, early retirement will avoid a potentially disruptive situation in the work place following a reinstatement.
The agency never notified Edgerton what he had to do to apply for early retirement, which was, as we shall show, to petition OPM as the agency must have well known. Its position was that it did not coerce, and inferentially, that it was not going to help Edgerton find a medium to establish the contrary. However, as we shall show, it was not for the agency to determine finally whether Edgerton was entitled to early retirement or not.
Unfortunately, Edgerton followed the practice of so many of taking up his problem with Senators and Congressmen (really their staff aides) who knew no more than Edgerton about the intricacies of Civil Service law and procedure, and were less in a position to find out. Not until March 1, 1984, according to the findings, did Edgerton "learn" from a Congressman that he should petition the MSPB. This advice would have been good only if early retirement had not been his principal object. On the other hand, since the agency knew very well that Edgerton's object was early retirement, we do not see how it can be faulted for not giving Edgerton this useless, for him, advice to petition the MSPB. It can be faulted for giving this misleading advice to a Congressman who inquired on his behalf. The Congressman (or his staff) should have known early retirement remained the objective, for Edgerton so stated to him by letter of December 14, 1983. Apparently the MSPB itself stated the early retirement issue was outside its jurisdiction.
On May 31, 1984, Edgerton did finally appeal to the MSPB. The presiding official faults the agency for never informing him of his right to appeal there, but treated the error as harmless in view of what Edgerton learned on March 1.The loss of time in petitioning is viewed as only from March 1, but three months are viewed as too excessive for discretion to waive the late filing to be exercised in Edgerton's behalf.
The statute Edgerton had in mind when he requested early retirement is 5 U.S.C. § ...